In re Church's Estate

• Decision Date: 10 August 1907
• Citation: 67 A. 549,80 Vt. 228
• Parties: In re CHURCH'S ESTATE.
• Court: Vermont Supreme Court

67 A. 549

80 Vt. 228

In re CHURCH'S ESTATE.

Supreme Court of Vermont. Windsor.

Aug. 10, 1907.

Exceptions from Windsor County Court; Miles, Judge.

Claim by E. E. French, as administrator of the estate of Serena K. Church, against the estate of Whitcomb H. Church, deceased. From a disallowance of the claim by the commissioners of the estate of Whitcomb H. Church, French appealed to the county court, where judgment was rendered for plaintiff, from which defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Pingree, Pingree & Pingree, for plaintiff. William Batchelder, for defendant.

WATSON, J. This is an appeal from the disallowance by commissioners on the estate of Whitcomb H. Church of a claim presented in favor of the estate of Serena K. Church, based on three promissory notes, dated May 1, 1879, signed by Whitcomb H. Church, and payable to the order of Daniel Knight, on demand, with interest annually—one for $750, one for $250, and one for $100. The declaration is special on the three notes, alleging that while yet current the first-named note was indorsed and delivered, and the other two transferred and delivered by Daniel Knight to Serena K. in her lifetime, etc. There is also a count for money had and received. Appellee pleaded the general issue and the statute of limitations. Replication, that the interest on the notes was given by the will of Serena K. to Whitcomb H. during his lifetime, and accepted by him, and therefore the statute of limitations was held in abeyance and suspended for the same period. The rejoinder was a general denial.

Whitcomb H. Church and Serena K. Church were husband and wife. They resided in West Lebanon, N. H., until the death of Serena K., May 11, 1894. Whitcomb H. continued to reside there until his death, September 24, 1903. Serena K. was the daughter and only heir at law of Daniel Knight, who, surviving his wife, died December 15, 1883. That the notes were executed by Whitcomb H. to Daniel Knight no question was made. But the indorsement, "Pay to the order of S. K. Church," signed "Daniel Knight," on the $750 note, was admitted in evidence subject to exception. No evidence was introduced tending to prove that this indorsement was made by the payee of the note or by his authority. The admission of it was therefore error (2 Stark. Ev. [4th Am. Ed.] 246); but not reversible error, if the amount due on this note is recoverable under the count for money had and received. In respect to the other two notes there is no finding of a transfer and delivery by the payee to Serena K., as specially alleged. Whatever recovery is had upon any of the notes must therefore be under the common count, regarding which the only claim or objection made by the appellee is that no recovery can be had thereunder, since there is no finding that the notes were inherited by Serena K. from her father, nor as to how she became the owner of them. The record states that by her will "she gave to her husband all the income of her property, including all interest on the three notes in suit." Included in this finding is the basal idea that these notes were a part of her property. Her ownership being thus in effect established, it is presumed to continue; nothing to the contrary appearing. This shows the notes to be a part of her estate, and as such they were provable by her personal representative against her husband's estate. Spaulding v. Warner's Estate, 52 Vt. 29; Purdy v. Estate of Purdy, 67 Vt. 50, 30 Atl. 695.

No question is made but that all the notes were kept alive during the lifetime of Serena K. by payments thereon from time to time; the last being made April 23, 1894, 18 days before her death. The claim of the appellee is that "the statute began to run against the notes as soon as the executor qualified June 5, 1894 (except as suspended for two years by the statute),", and that thereafter no payment, nor written waiver or acknowledgment, was made, which prevented the statute from becoming a bar long before the maker's death. The provisions of the will upon which appellant relies in support of his replication are as follows:

"Fourth. I give and bequeath to my beloved husband, Whitcomb H. Church, the income of all the residue and remainder of my real and personal estate, including all interest on the notes I now hold against him, with the privilege and right to sell and convey my said real estate at any time after my decease, for life, and from and after the termination of his estate to the 'Faith Home for Indigent Women,' at Portsmouth, New Hampshire, the sum of eight hundred dollars, and to Clara Church Howe the sum of one hundred dollars, and all the residue and remainder to the aforesaid Louisa P. Irving, to be disposed of as I may direct.

"Fifth. Should my said husband, Whitcomb H. Church, refuse to accept the terms specified in this my last will and testament, I hereby direct that my said estate shall be settled as the law directs, and after he, my said husband, receives his portion, I give and bequeath all the residue," etc.

Louisa P. Irving, the above-named legatee, was called as a witness by the appellant, and testified that several...