In the Matter of the Estate of William E. Delligan, Edward Leahy, Admr., By Joseph Duprey And Philip Delligan, Heirs

• Decision Date: 07 May 1940
• Citation: 13 A.2d 282,111 Vt. 227
• Parties: IN THE MATTER OF THE ESTATE OF WILLIAM E. DELLIGAN, EDWARD LEAHY, ADMR., APPELLANT, BY JOSEPH DUPREY AND PHILIP DELLIGAN, HEIRS
• Court: Vermont Supreme Court

13 A.2d 282

111 Vt. 227

IN THE MATTER OF THE ESTATE OF WILLIAM E. DELLIGAN, EDWARD LEAHY, ADMR., APPELLANT, BY JOSEPH DUPREY AND PHILIP DELLIGAN, HEIRS

Supreme Court of Vermont

May 7, 1940

February Term, 1940.

Burden of Proof.---1. Assignor's Receipt of Claim.---2. Plea of Payment.---3. Rebuttal of Presumption of Payment.---4. Proof that Claim Due and Unpaid.---5. Presumption of Payment Through Lapse of Time.---6. Proof of Fraud or Mistake in Written Instrument.---7. Will in Lieu of Dower.---8. Burden of Proof in Civil Cases.---9. Concealment of Cause of Action.---10. Fraudulent Concealment, P. L. 1662.---11. Tolling Statute of Limitations, P. L. 1662.---12. Burden of Proving Exception to Statute.---13. Evidence of Rescission of Support Contract.---14. Plea of Fraud.---15. No Fraud in Receiving Own Money.---16. Oral Contract as Defense to Breach of Covenant.---17. Estoppel by Oral Contract.---18. Covenant Rescinded by Executed Parol Agreement.---19. Inference of Parol Agreement.---20. Duty to Instruct on Whole Case.---21. Failure to Charge Burden of Proof.---22. No Error in Limiting Cross Examination.---23. Error in Limiting Examination Cured by Other Questions.---24. Failure to Set aside Verdict Not Considered when Cause Reversed for Other Reasons.---25. Speculative Evidence Not Considered.---26. Consideration of Matters Beyond Decedent's Death.---27. Matters Between Executor and Estate, P. L. 2870--2871.

1. One who transfers a note, mortgage and other property to persons as consideration for an agreement of life support and who later receives payment in full of the note and discharges the mortgage justifies a finding of conversion of the proceeds in the absence of evidence of a rescission of the agreement.

2. A plea of payment is required when full payment is to be made as a defense in an action of assumpsit.

3. Presumption of payment of a claim by lapse of time may be rebutted by circumstances showing that the claim is due and unpaid.

4. No direct evidence of circumstances indicating that a claim is due and unpaid need be introduced if there is sufficient evidence from which a trier can fairly and reasonably infer the same.

5. It is not error to fail to direct a verdict for those contesting a claim for services performed and disbursements incurred in the support during many years of another person on the ground of presumption of payment because of lapse of time.

6. The claim of fraud or mistake to set aside a written instrument must be proved beyond a reasonable doubt.

7. One who asserts that a testator intended that the provisions of the will made for his widow should be in lieu of her marital rights must sustain the burden of proof beyond a reasonable doubt.

8. The general rule of burden of proof in civil cases, even those involving fraud or crime, is that only a preponderance of evidence is required.

9. A replication of concealment of a cause of action to plea of the Statute of Limitations need be sustained by only a preponderance of evidence.

10. The concealment of a cause of action that tolls the Statute of Limitations must be fraudulent and with a design to prevent the discovery of facts which should give rise to the action P. L. 1662.

11. One who claims that the Statute of Limitations has not run either because of P. L. 1662 or that a person became a constructive trustee against whom the statute did not run until the facts are known or should have been known must in either case show fraud on the part of the person charged to toll the statute.

12. One who alleges an exception to a statute has the burden of proving it.

13. Where a mortgage is given conditioned for the support of another, evidence as to payment of board, lack of knowledge of property mortgaged, presentment of claim for care and failure to do all the acts required are sufficient to create a jury issue on claim of rescission by mutual agreement.

14. Special pleading of claim of fraud in concealing a cause of action is not necessary where the pleadings in effect deny fraud.

15. A person entitled to receive money commits no fraud in failing to tell persons not entitled to an accounting therefor of receipt thereof.

16. An executed oral contract may be shown as a defense even against an action for breach of covenant.

17. To deny introduction of evidence of an executed oral contract as defense to breach of covenant would allow a fraud upon the party relying on the other's good faith.

18. A sealed executory agreement may be rescinded by a parol agreement which has been acted upon.

19. An oral agreement to rescind a contract under seal need not be express but may, by the trier, be inferred from the circumstances.

20. A court, even though not requested, is required to instruct the jury upon every essential part of a case.

21. Instructions which fail to point out that an allegation of receipt and use of money were without right and were concealed from those entitled thereto casts the burden on the one claiming fraudulent concealment to avoid the Statute of Limitations constitute a reversible error.

22. When it does not affirmatively appear that defendants are prejudiced by the exclusion of questions upon cross examination, the error, if any, does not warrant a reversal.

23. When the only claimed benefit from questions which are excluded upon cross examination is that answers would tend to discredit the witness, such exclusion is harmless if there are other questions answered which tended to reach the same end.

24. Claimed error in failure to set aside a verdict need not be considered when there is reversible error in the charge requiring that the judgment be set aside.

25. Even though evidence may tend to show that payments were made at some time, if the evidence is too speculative to form the proper basis for determination as to amount or times of payment it need not be considered.

26. Although issues concerning a decedent's obligations ordinarily can be considered only to the time of his death on appeal for presentment of claims to commissioners, yet if the matters concern an offset or recoupment by parties to a contract which the decedent is claimed to have failed to perform, such matters, if material, may be considered even though occurring after death.

27. The arbitration procedure provided by P. L 2870--2871 concerning issues between an executor and the estate he represents is not exclusive but such matters may also be determined in other actions wherein issues between such parties arise.

PROBATE APPEAL by heirs of decedent from allowance of commissioners' report. Trial by jury, September Term, 1939, Franklin County Court, Cushing, J., presiding. Verdict and judgment for claimant. Exceptions to the appellants. The opinion states the case. For prior proceedings herein see this same case, 110 Vt. 294, 6 A.2d 1.

Judgment reversed and cause remanded.

H. J. Holden and Jay Chaffee for the appellants.

P. C. Warner for the claimant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

JEFFORDS

This is an appeal from the decision of commissioners upon the estate of William E. Delligan. The case has been here once before upon questions raised by demurrer and motion to dismiss and was remanded to the county court for further proceedings. 110 Vt. 294, 6 A.2d 1. A jury trial was then had which resulted in a verdict for the claimants, Mary Ann Delligan, individually, and as administratrix of the estate of Barney Delligan, hereinafter called the plaintiffs, and the case is here on exceptions of the appellants, hereinafter called the defendants.

The evidence in the case was free from contradiction or dispute in any material respect and from it the following facts are disclosed. On April 18, 1911, Barney Delligan and his wife, Mary Ann, executed a mortgage, hereinafter called the Delligan mortgage, of certain premises to William E. Delligan, the brother of Barney. The condition of the mortgage was in substance that the mortgagors should furnish care and maintenance for William during his life, including food, clothing, spending money and medical attendance and at his death should provide for him a proper Christian burial and a monument.

The consideration for the mortgage was certain personal property transferred by the mortgagee to the mortgagors which included a mortgage known as the LePage mortgage, cash and a bank book.

Within a few days after the execution of the mortgage a deposit of a certain sum of money which constituted a condition of the same was made with an attorney "in accordance with the agreement between W. E. Delligan and Barney and Mary Ann Delligan."

The LePage mortgage which was in the principal amount of $ 1,900 was assigned by William to Barney and Mary Ann and the assignment recorded on April 20, 1911. At some time thereafter William went to the LePage home and demanded more interest and in the fall of 1915 he demanded payment of the mortgage debt. The parties met at the office of E. A. Ayers an attorney, for the purpose of making the necessary arrangements in regard to payment. At the office at the time were Mr. and Mrs. LePage, William Delligan and Mr. Ayers. The LePages procured the necessary funds from the Swanton Savings Bank and Trust Company and the debt was paid in an amount conceded by the defendants in their brief to be $ 1,767.32. The mortgage was discharged by "E. A. Ayers, Atty. for W. E. Delligan," the date of the discharge being October 26, 1915, and the discharge was recorded on that same day. On the same day the LePages gave a mortgage to the Swanton Bank for $ 2,000 on the premises covered by their mortgage to Delligan. On October 27, 1915, William Delligan deposited $ 1,767.32 in the Peoples Trust Company of St. Albans, which the...