J. K. Darling, Admr. of S. B. Hebard's Estate v. C. S Emery, Admr. of Pauline A. Cabot's Estate, Albert a Niles, And Frances Magoon,
| Decision Date | 08 March 1902 |
| Citation | 52 A. 517,74 Vt. 167 |
| Parties | J. K. DARLING, ADMR. OF S. B. HEBARD'S ESTATE v. C. S EMERY, ADMR. OF PAULINE A. CABOT'S ESTATE, ALBERT A NILES, ET AL. AND FRANCES MAGOON, ET AL |
| Court | Vermont Supreme Court |
October Term, 1901.
APPEAL in Chancery. Heard on a master's report and defendant Emery's exceptions thereto at the December Term, 1900 Orange County, Watson, Chancellor, presiding. Exceptions overruled and decree sustaining the gift in question. The defendant Emery appealed.
The decree of the Court of Chancery is affirmed and the cause remanded; the rule as to costs to be the same here as in that court, the parties having so agreed.
Geo L. Stowe and Geo. M. Powers for the appellant.
Present TAFT, C. J., ROWELL, TYLER, MUNSON and STAFFORD, JJ.
The controversy is over four bonds that once belonged to Pauline Cabot, who lived in Chelsea, Vt., and died there in February, 1894. Her administrator, Mr. Emery claims them all as part of her estate. On the other hand, two of them are claimed by the Niles children, and the other two by the Haskins children, as gifts made to them by Mrs. Cabot in apprehension of death. During her last illness she had placed them in the hands of Mr. Hebard, a lawyer in Chelsea, who also died a few months after Mrs. Cabot, leaving the bonds among his papers. Mr. Darling became his administrator, and, in view of these different claims, brought a bill of interpleader against Mr. Emery as administrator of Mrs. Cabot, the Niles children, and the Haskins children, and paid the bonds into court. He was accordingly dismissed with his costs; which have been paid out of the fund. The defendants were ordered to interplead, and have done so; a master has reported the facts; the court of chancery has made its decree thereon upholding the gifts, and from that decree Mr. Emery, the administrator, has appealed.
The story to be gathered from the report is this: Mrs. Cabot's maiden name was Pauline Jones. She had a sister, a Mrs. Haskins, who died in 1872, leaving five daughters, the youngest a babe, and the oldest only fourteen years of age. The circumstances of the father were such that she took two of the girls home and supported them,--one until the child's death, and the other until the child's marriage,--and took a deep, motherly interest in them all. Four of these nieces survive and are the defendants Frances Magoon and others, referred to as the "Haskins children." In 1884, Pauline married Mr. Niles. He then had three children of a former marriage, and these are the defendants Albert Niles and others, referred to as the "Niles children." He died within forty-eight hours after their marriage, leaving an estate of more than $ 9,000 for distribution to his widow and children. Pauline, with a full understanding of her rights, accepted one thousand dollars in full of her share, and with it purchased the two five hundred dollar bonds involved in this suit, which she always treated as the one thousand dollars from the Niles estate. She remained friendly to the Niles children to her death. In 1888 she married Mr. Cabot, and lived with him as his wife till she died. Before their marriage they entered into a written contract whereby each renounced all interest in the other's estate.
In August, 1893, Pauline was taken sick, and failed in health continually until her death. By the 7th of November she had become so ill that three physicians were called in consultation. After this she seemed very much discouraged. On November 9th, she had in her possession the two five hundred dollar bonds, and another for four hundred and fifty dollars, and still another for three hundred and seventy-five dollars. In the morning she told her husband that her business was not arranged as she desired, and asked him to call in Mr. Hebard to assist her in arranging her business affairs. Mr. Cabot went for him, and he came immediately to her room. She took the bonds in her hands, and told him she wanted the two five hundred dollar bonds to be paid back to the three Niles children; that this one thousand dollars came from Mr. Niles, and she wanted it to go back into his family; and that she wanted the other two bonds to go to these nieces, the four Haskins children, naming them; and she then and there delivered the four bonds to Mr. Hebard, who took them and kept them thereafter. At this time Pauline was so sick, and so conscious of her condition, that she did not expect to recover, but did expect to die of that illness, and, so believing, she desired to give the two five hundred dollar bonds, in equal parts, to the three Niles children, and the other two, in equal parts, to the four nieces, and, to that end, delivered the bonds to Mr. Hebard, that he might and should deliver them, as before stated, after her death, to be held by the donees, respectively, in such equal parts; and Mr. Hebard then and there accepted and received them for that purpose.
After Pauline had delivered the bonds to Mr. Hebard, as just related, and before the latter left the room, he suggested to her, "This better be in a will." Up to this time, nothing had been said about a will in that interview. She replied, "If you think that the best way, I will make a will." He replied, "I think that is the better way, and I will write it out and have it executed." He went away and drew up a will disposing of the bonds in the same manner, and naming himself as executor, and came back with it the next day and read it to her. She was satisfied with it, and executed it. She was never any better, but grew worse, and died February 4, 1894. Mr. Hebard died November 17, 1894. One of the witnesses to the will was Mr. Cabot, the testatrix' husband, so that the instrument was disallowed in the Probate Court and in the County Court; and that judgment was affirmed here. Smith v. Jones, 68 Vt. 132, 34 A. 424.
The master says he has found all these facts either from concessions and agreements of all the counsel or from evidence that came in without objection. But the administrator disputes this, and says that there was no evidence, received without objection, from which he could have found any of the following facts:
1. That she told her husband her business was not arranged as she desired, and requested him to call in Mr. Hebard to assist her in arranging her business affairs.
2. That she was conscious of her condition, and did not expect to recover, but did expect to die of that illness.
3. That she desired to give the bonds to the Niles children and the Haskins children as above set forth.
4. That she delivered the bonds to Mr. Hebard for the purpose above set forth.
5. That Mr. Hebard accepted and received the bonds for that purpose.
6. That in the interview between her and Mr. Hebard nothing had been said about a will until Mr. Hebard suggested it.
1. As to the first point. Mr. Cabot and Mrs. Walker were the only witnesses upon this subject. Mrs. Walker was...
To continue reading
Request your trial