In re Eacott

• Decision Date: 23 November 1901
• Parties: In re EACOTT.
• Court: Maine Supreme Court

50 A. 708

95 Me. 522

In re EACOTT.

Supreme Judicial Court of Maine.

Nov. 23, 1901.

(Official.)

Exceptions from supreme judicial court, Sagadahoc county.

In the matter of the settlement of the accounts of James H. Eacott, executor, on an allowance of a claim against the estate of decedent. The legatee appeals, and from the decree rendered plaintiff brings exceptions. Exceptions overruled.

The bill of exceptions states:

Mary E. Ayer was a widow. Her estate consisted of chattels worth $10, and a house and lot which her executor sold under probate license for $1,000.

Her will, which was admitted to probate on the first Tuesday of October, A. D. 1896, gave $200 to her daughter, and half the residue of her estate to her son, Horace G. Ayer. It gave the other half of the residue to her stepson, Marcellus Ayer, "but upon the following condition, to wit, that he pay ail debts due from me at my decease, also my funeral charges and expenses of administration, and care for me during the time I may live, including physician's bills and bills for necessary nursing."

The executor filed his first and final account in the probate court in February, A. D. 1900, and Marcellus Ayer appeared and presented objections. Upon a hearing, the judge of probate made his decree on the account March 13, 1900, charging the executor with $1,040.33, which included $30 as rent of real estate, and allowing items in his favor aggregating $400.36, which included the legacy to the daughter, and ordered distribution of the balance to be paid to the legatees as follows: To Horace G. Ayer, $420.17; to Marcellus Ayer, $213.80.

From this decree the executor appealed, alleging the following reasons:

"Because the said executor was charged with the sum of $30; the same being for rents collected by him, accruing after the death of the testatrix.

"Because the claim of $212.89, presented by Horace G. Ayer and paid by said executor, was disallowed by said decree."

The $212.89 was the aggregate of 13 debts which Horace G. Ayer had contracted in his own name and paid in the lifetime of the testatrix, and while he was living with his family in her house, above mentioned. These debts were for labor and materials employed in making alterations and repairs in said house. It was claimed by the executor and denied by Marcellus Ayer that the testatrix owed Horace the $212.89 at the time of her decease.

The letter from Horace G. Ayer, offered in evidence by Marcellus, was admitted to be genuine.

Marcellus Ayer claimed:

(1) That the deposition of Horace G. Ayer offered by the appellant after the letter was introduced was inadmissible, because the deponent was not a competent witness to testify to facts prior to the death of the testatrix in support of the claim for the $212.89.

(2) That the facts stated in the deposition, even if proved, did not legally warrant the allowance of the $212.89 to the executor.

(3) That the admissible evidence in this case did not show facts on which a promise from the testatrix to Horace to pay the $212.89 could be implied by law.

(4) That said evidence did not legally warrant a finding that she made such promise in fact. The appellant did not claim a promise in fact, but that there was a request from which a promise should be implied.

The presiding justice overruled these several contentions of Marcellus Ayer, and made his decree accordingly. To all these rulings adverse to his contentions and to the decree on the appeal, for the reasons above specified, Marcellus Ayer took exceptions.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, FOGLER, and POWERS, JJ.

H. E. Coolidge and H. W. Oakes, for executor.

Weston Thompson, for Marcellus Ayer, legatee.

EMERY, J. Mr. Eacott, executor of the will of Mrs. Ayer, deceased, paid $212.89 out of her estate to Horace G. Ayer, as a debt due him from Mrs. Ayer for moneys laid out and expended for her benefit at her request. The judge of probate refused to allow this item to the credit of. the executor, and he appealed to the supreme court of probate. In the appellate court the executor offered the deposition of Horace G. Ayer, to whom he had paid the money, containing his testimony as to facts happening...