Margaret J. W. Boyd v. Town of Hartford
| Decision Date | 06 October 1942 |
| Parties | MARGARET J. W. BOYD v. TOWN OF HARTFORD |
| Court | Vermont Supreme Court |
May Term, 1942.
1. Title of Executrix.---2. Property in Town Orders.---3. Findings of Fact.---4. Weight of Testimony.---5. Offer necessary on Ruling Excluding Question.
1. When an executor's final administration account has been allowed showing delivery of assets to the guardian of a minor beneficiary, the title of the executor in such assets is thereby extinguished.
2. When assets are bequeathed to a minor the income to be paid to him by his guardian until he reaches the age of 30, at which time they should become absolutely his property, upon the ward's actually reaching the age of 30 he is entitled to physical possession of the assets and they become absolutely his property.
3. When a trier makes findings and includes therein findings which are conclusions from facts previously found, such findings are amply supported.
4. The determination of the trier of facts as to the credibility of witnesses and the weight to be given their testimony is final.
5. If on trial a question is excluded, and thereupon no offer is made as to the expected answer, no error appears.
ACTION OF CONTRACT transferred to Chancery. Demurrer by defendant trial on merits, and decree for the plaintiff. In chancery Windsor County, June Term, 1941, Cleary, Chancellor.
Decree affirmed, and cause remanded.
Loren R. Pierce for the plaintiff.
William S. Pingree, Fred B. Thomas and Ernest E. Moore for the defendant.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This suit was commenced at law as an action of contract and was transferred to the court of chancery upon the defendant's motion. The defendant incorporated a demurrer in its answer alleging that it does not appear from the bill that the plaintiff has title to the town orders in question or any right to maintain this action against the defendant for a recovery on them. After hearing the demurrer was overruled and the benefit of the defendant's exception to this action of the court was reserved to it. A trial was had on the merits, findings of fact filed and a decree was entered for the plaintiff. The case is here upon the defendant's exceptions.
The bill contains the following allegations material to the questions raised by the demurrer.
Moses H. West and Myra J. West were husband and wife and the plaintiff is their only child. Moses H. West died testate March 17, 1909. On that date he was the owner and holder of four town orders in the total principal sum of $ 7,000 which at various times had been made, executed and delivered to him by the defendant. Each of these was payable to the order of Moses H. West.
His will was duly proved before and allowed by the probate court for the district of Hartford and his widow, Myra J. West, was appointed executrix in accordance with the terms of that instrument. The testator bequeathed the town orders to the plaintiff under her maiden name, Margaret Jackman West. The will also provided that the plaintiff should receive the income from the orders until she should reach the age of thirty years, if she lived to reach that age, when they should become absolutely the plaintiff's property.
Myra J. West filed her final account as executrix of her husband's estate June 6, 1910. It was allowed by the probate court on that date. In that account the estate was charged with the orders by the following entry:
"To paid Margaret J. West (town loans) $ 7,000.00"
On the same day the probate court appointed Myra J. West guardian of the plaintiff, then a minor ten years of age, and at that time Myra J. West as such guardian took over the property of her ward's estate including these orders. Each June thereafter until the time of her death, February 2, 1913, she filed her guardianship account with the probate court and the accounts were severally accepted, approved and filed by it. Each contained the following entries:
After the guardian's death the orders came into the hands of one Hattie J. Benedict who had no legal, official or equitable ownership of them and was without authority to receive payment of interest or principal of same. Yet the defendant, without legal or equitable justification, paid to her interest thereon from January 1, 1913, to December, 1919, at which time it also paid to her the total principal sum thereof and she then delivered the orders to the defendant, all without authority and without the knowledge, consent or approval of the plaintiff who was then nineteen years of age.
Since that time the orders have remained in the possession of the defendant and at no time has the plaintiff had physical possession of them or opportunity to procure their indorsement to her. Since the guardian's death there has been no person with authority to make such indorsement. According to the provisions of the will the plaintiff was without authority to demand payment of the principal of the orders before April 27, 1930, at which time she became 30 years of age. On and after that date she was legally and equitably entitled to full payment of the orders with annual interest thereon from January 1, 1913. The plaintiff is the legal and equitable owner of the orders together with all rights incident to such ownership. Since the death of her guardian she has received no payment of interest or principal thereon and did not know of their existence until about August 1, 1938. The defendant is indebted to the plaintiff as legatee under the terms of her father's will for the principal sum of the orders together with interest thereon from January 1, 1913. Although requested to pay same the defendant has refused and neglected so to do.
When Myra J. West as the plaintiff's guardian took charge of the orders June 10, 1910, under the circumstances stated in the bill, her title to them as executrix of the Moses H. West estate was terminated and they no longer remained as assets thereof. Pond v. Pond's Estate, 79 Vt. 352, 359, 65 A. 97, 8 L.R.A. (N.S.) 212; Coolidge v. Taylor and Trustee, 85 Vt. 39, 50, 51, 80 A. 1038; In re Clark's Estate, 100 Vt. 217, 221, 136 A. 389, and cas. cit. She had properly accounted for them as executrix of that estate and thereafter she held the orders as the property of her ward. While the physical possession of the orders could not be delivered to the plaintiff until she was thirty years of age yet under the circumstances as alleged in the bill she became the owner of them before that time in accordance with the stated provisions of the will. When she reached the age of thirty years she then became entitled to receive physical possession of the principal as well as the interest on the orders. They became "absolutely her property." In re Scott's Estate, 36 Vt. 297, 300, 301; Nason et al., v. Smalley et al., 8 Vt. 118, 126, 127; Coolidge v. Taylor, 85 Vt. 39, 50, 51, 80 A. 1038; Bacon, Recvr., v. Barber, 110 Vt. 280, 288, 289, 6 A.2d 9, 123 A.L.R. 253; Noyes v. Noyes et al., 110 Vt. 511, 520, 9 A.2d 123; Woerner's Am. Law Adm. 3 ed. Vol. III, sec. 519. Error is not made to appear in the over-ruling of the demurrer.
The findings contain facts substantially as hereinbefore stated to have been alleged in the bill and in addition thereto the chancellor found as follows:
The plaintiff was taken suddenly and seriously ill with infantile paralysis on September 23, 1913. She was adopted by her aunt, Mrs. Hattie J. Benedict, and the latter's husband October 14, 1913, in the probate court for Merrimack County, New Hampshire, upon representations made by the Benedicts to the court that they "were of sufficient ability to bring her up and to furnish suitable nurture and education for her." Mrs. Benedict received the total sum of $ 10,566.35, including the proceeds of the town orders, which the plaintiff's father had willed to her. Each of the orders bore interest at 3% annually. Mrs. Benedict, relying entirely on her memory, testified to having paid out the total sum of $ 8,909.00 as necessary and extraordinary expenses because of the plaintiff's illness and in addition thereto made a charge of $ 654.00 for board of nurses. The various items which the witness claimed went to make up this sum are set out in the findings. The chancellor states that as to these alleged expenditures he did not believe Mrs. Benedict's story and so was unable to find what items or parts of items were paid out for the benefit of the plaintiff.
Mrs. Benedict had become Mrs. Stark at the time of the trial but herein she is referred to by her former name.
The plaintiff has been unable to walk since being stricken with infantile paralysis in September, 1913.
In finding number three it is stated that the paragraph numbered 11 of the will of Moses H. West is as follows:
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