Luceba E. George, Apt. v. Asa G. Dutton's Estate

• Decision Date: 07 January 1920
• Citation: 108 A. 515,94 Vt. 76
• Parties: LUCEBA E. GEORGE, APT. v. ASA G. DUTTON'S ESTATE
• Court: Vermont Supreme Court

108 A. 515

94 Vt. 76

LUCEBA E. GEORGE, APT. v. ASA G. DUTTON'S ESTATE

Supreme Court of Vermont

January 7, 1920

January Term, 1919.

APPEAL from the probate court for the District of Washington Washington County, from the allowance of the administrator's account in the estate of Asa G. Dutton. Heard on exceptions by the plaintiff, a creditor of the estate. The estate was settled and the administrator's account rendered on the theory that the administrator had no control over the store property mentioned in the opinion. The opinion states the facts.

Decree affirmed. To be certified to the probate court.

J Ward Carver and W. A. Dutton for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

WATSON

The store property, both real and personal, was purchased by Asa G. Dutton and Mary J. Dutton, his wife, and paid for (in language of the agreed facts) "by funds which were the proceeds of real estate owned in entirety by Asa G. Dutton and Mary J. Dutton, and by funds from the sale of personal property also owned by them." It will be observed that the character of the ownership of the latter funds is not more definitely, nor otherwise, stated. The word "also" is significant in this respect, relating back, as it does, to the character of the ownership of the real estate from the sale of which the funds previously mentioned were derived; and it has the meaning of "in like manner." To give it the force of indicating additional ownership, makes the word redundant, for by the words "owned by them," immediately following, this is expressly stated. We think the agreed facts in this respect, are to be understood as meaning the same as though they read, "and by funds from the sale of personal property in like manner owned by them." See Webster's New International Dictionary.

The marital rights of the husband, at common law, in the personal property acquired by his wife during coverture, are not inconsistent with the theory that estates by entirety may exist in personalty; for the wife may hold such property by virtue of a gift or bequest to her sole and separate use; or she may so hold it by reason of a surrender and waiver by the husband of his marital rights therein; or if her property consists of choses in action, the husband may not reduce it to possession within his lifetime. Barron v. Barron, 24 Vt. 375; Albee v. Cole, 39 Vt. 319; Child v. Pearl, 43 Vt. 224; Bent v Bent, 44 Vt. 555. In addition to the foregoing, by Acts of 1884, No. 140, Sec. 2, all personal property and rights of action acquired by a woman before coverture, or during coverture, except by her personal industry or by gift from her husband, shall be held to her sole and separate use, and neither a wife's separate property nor the rents, issues, income and products of the same, shall be subject to his disposal or liable for his debts. By Acts of 1888, No. 84, the foregoing section was amended by striking out the words, "by her personal industry or," thereby making the law as it hitherto has been and now is in section 3524 of the General Laws.

That estates in entirety may exist in personal property growing out of real estate so owned was held in Citizens' Savings Bank & Trust Co. v. Jenkins, 91 Vt. 13, 99 A. 250. And no good reason is apparent why such an estate may not exist in other personal property. We think it can. Although there is some difference in judicial opinion on the question in other jurisdictions, we think the better view is as here stated, and in support of it cite the following cases: Phelps v. Simons, 159 Mass. 415, 34 N.E. 657, 38 A. S. R. 430; Boland v. McKowen, 189 Mass. 563, 76 N.E. 206, 109 A. S. R. 663; Bramberry's Appeal, 156 Pa. 628, 27 A. 405, 36 A. S. R. 64, 22 L. R. A. 594; Parry's Estate, 188 Pa. 33, 41 A. 448, 68 A. S. R. 847, 49 L. R. A. 444; Johnston v. Johnston, 173 Mo. 91, 73 S.W. 202, 96 A. S. R. 486, 61 L. R. A. 166; also 13 R. C. L. 1105, § 128.

It has been held by this Court that the statute exempting...