King v. Cummins

• Decision Date: 19 December 1887
• Citation: 11 A. 727,60 Vt. 502
• Court: Vermont Supreme Court
• Parties: KING v. CUMMINS et al.

11 A. 727

60 Vt. 502

KING

v. CUMMINS et al.

Supreme Court of Vermont. Washington.

December 19, 1887.

Appeal from chancery court, Washington county; POWERS, Chancellor.

In equity. This action was brought by Clark King, administrator with the will annexed of the estate of Lucinda Cutler. The defendants, A. O. Cummins, administrator of the estate of Henry Cummins, and Timothy Davis, administrator of the estate of Polly Gould, interpleaded; the purpose of the action being to set aside an assignment executed by Polly Gould and her son, John Gould, of their expectancy in the estate of Lucinda Gould. It was heard on the report of special masters at the September term, Washington county, 1886. It was decreed that the assignment be set aside and held for naught. The defendant Cummins appealed. The facts as found by the report of the masters are as follows:

David Gould deceased some time in the fall of 1861, leaving a will whereby he bequeathed to his wife, Polly, a life-estate in his home farm in East Montpelier and to his son, John Gould, the remainder, subject to the payment by John of certain other legacies therein named. From David's decease, Polly and John occupied the farm together; and after the death of John, in 1883, Polly remained upon the farm until late in the fall of the same year, when she moved to Montpelier, where she remained until her death, June 29, 1884, at the age of 93 years lacking a month. Lucinda Cutler, a sister of Polly Gould, deceased April 4, 1874, leaving a will providing that the residue of her estate after the payment of all other legacies should remain in the hands of her executor, or, in case of his death, resignation, or inability, in the hands of a trustee to be appointed by the probate court, for a term of 10 years after her decease, after the expiration of which term said residue, with its accumulations, "to go and descend to her legal heirs, to be divided according to law;" which will was duly probated, and Addison Peck appointed executor, who administered for a time, and was succeeded by Clark King, duly appointed administrator with the will annexed. April 30, 1872, Polly and John mortgaged said farm to Lucinda Cutler to secure their note of that date for the sum of $700, August 22, 1873, Polly and John again mortgaged the farm to H. W. Heaton, to secure two notes of that date,—one for the sum of $720; one for the sum of $115,—and a note of April 29, 1873, for the sum of $103.50; all signed by Polly, and the first and last named by John. This mortgage also covered a piece of land in Montpelier known as the "Somerby Place," of which Polly then owned an undivided half. August 22, 1873, Polly and John again mortgaged said home farm to Dennison Taft to secure a note of that date for the sum of $790. September 19, 1874, John executed still another mortgage of the farm to Avery Cummins, to secure a note of that date signed by him for the sum of $800. The mortgage to Dennison Taft, at some time after its execution, came into the hands of William N. Peck, and was by him foreclosed at September term of "Washington county court of chancery, 1875, at which term decree was passed, with one year's redemption, expiring November 10, 1876. Neither Polly and John nor Cummins redeemed, and the decree became absolute as against Polly and John and Avery Cummins. Soon after the decree became absolute, Henry M. Cummins purchased the rights of said Peck, taking from him a quitclaim deed of the farm, dated May 3, 1877; and March 1, 1877, said Henry M. also received a deed from Polly and John of the "Somerby Place,"—a quitclaim deed. The incumbrances prior to the Taft mortgage still existed, and Henry M. paid to the executor of Lucinda Cutler and to said Heaton their claims, and so secured to himself absolute title to the farm. The amount of incumbrances, including the decree, at the date of the expiration of the decree, was $3,019.43. After Henry became the owner of the farm in the manner above narrated, Polly and John continued to occupy the farm just as they had done before, presumably under some arrangement with Henry M.; but what that arrangement was cannot be stated, as there was neither writing nor living witness produced with definite knowledge to tell. All that was shown about this is learned from defendant A. O. Cummins, who was a witness in his own behalf, and who had some knowledge in a general way of his brother Henry's affairs, and he supposes the arrangement to have been that Polly and John were to pay Henry M. 6 per cent. on the money invested by him in the farm, and were permitted to stay there at the sufferance of Henry M.; he being the absolute owner. Henry M. Cummins deceased about August 8, 1881, and immediately thereafter A. O. Cummins was duly appointed administrator of his estate. Among Henry M. Cummins' papers his said administrator found the two smaller notes described in the Heaton mortgage, and a note for the sum of $1,000, dated December 1, 1876, payable to Henry M. on demand, signed by Polly and John, and witnessed by F. V. Randall. This note was called in the trial "the Randall note." The $115 Heaton note was payable to Heaton or order, and when found by A. O. Cummins did not bear Heaton's indorsement. A. O. Cummins procured Mr. Heaton to indorse this note without recourse after Henry's death, and after the making of the assignment hereinafter spoken of. Within two or three days after the death of Henry M., A. O. Cummins, having then been appointed administrator, went up to the farm, and had an interview with John about these matters, and also made some general talk with Polly about her remaining on the farm, and about paying for the use of the farm. Subsequently A. O. Cummins had two or more interviews with John at Montpelier in relation to the business, and it was suggested that John and his mother make an assignment of their expectancy in the estate of Lucinda Cutler to secure the said Cummins for the past indebtedness, and for their future occupancy of the farm; and so it was arranged between Cummins and John that Cummins should come up to the farm, and have writings executed to accomplish that purpose. According to this arrangement with John, on December 13, 1881, a time previously agreed upon between Cummins and John, Cummins, with a lawyer, repaired to the farm to consummate the business. On that day, at the farm, Polly and John executed to A. O. Cummins, as administrator of the estate of Henry Cummins, in writing, under seal, an assignment of all their interest in the estate of Lucinda Cutler, with power of attorney to receive and receipt for such sum as should be coming to them, or either of them, from the administrator of Lucinda Cutler's estate to an amount sufficient to pay said Cummins the indebtedness therein named. The indebtedness named in the assignment is the said "Randall note," the said two smaller notes named in the Heaton mortgage, a note of $1,250, that day executed by said Polly and John to A. O. Cummins, administrator, and such further indebtedness as should arise under a lease of the farm that day executed, and hereinafter more particularly described. At the same time A. O. Cummins, administrator, executed to Polly a lease of the farm from that time to the first day of April, 1884,—about the time the 10 years after the death of Lucinda Cutler would expire,—with a provision that it should terminate at all events with the death of Polly, at an annual rental of $175. After Polly's death, Timothy Davis was duly appointed administrator of her estate. Said Davis claimed from Clark King, administrator with the will annexed of Lucinda Cutler, whatever was coming to Polly as heir of Lucinda Cutler; and A. O. Cummins, administrator, claimed the same by virtue of said assignment. Thereupon King brought the bill in this case, and the court ordered the said Davis and Cummins to interplead, and these masters were appointed to hear them. King has paid into court the fund here in controversy, being the sum of $3,370.80. Upon either side was introduced a great number of witnesses, who gave their opinion respecting Polly's mental and physical condition during the last 10 years of her life, with more or less detail of her circumstances and surroundings.

From this testimony is found: Up to within 15 years of her death, Polly was a woman of more than ordinary business capacity and understanding. John was her only living son, and for him she entertained great affection, and in him had great confidence. He was addicted to the excessive use of intoxicating liquor, and was "easy going" and shiftless. Polly herself loved strong drink, and sometimes partook of it to intoxication. John ministered to his mother's desire in this behalf, and furnished her with her "warm drink," as she called it. The masters think that this attention on his part in nowise diminished her affection for or confidence in him. In 1883, during John's last sickness, some of the neighbors called the attention of the overseer of the poor of the town to the fact that Polly was in need; whereupon he, with one of the selectmen, went to the farm to look into the matter, and interviewed Polly respecting her needs and situation. Polly insisted to them that she had everything she wanted, except that since John had been sick she had no one to bring her "warm drink." The fact is that at that time she was not comfortably provided for. The overseer at that time did nothing for her relief, and, as far as appeared, never did. This was after the execution of the assignment, but her condition of mind then was not substantially different from what it was at the time of the assignment. Polly was induced to execute the assignment by John. Cummins' negotiations were mostly with John, and John influenced his mother.

On that thirteenth day of December, 1881, Polly's memory of recent events was seriously impaired, though better touching occurrences of her earlier years, as is said to be often the case with old pe...