Probate Court v. Enright

Decision Date10 January 1907
Citation65 A. 530,79 Vt. 416
CourtVermont Supreme Court

Exceptions from Windsor County Court; Willard W. Miles, Judge.

Action by the probate court for the benefit of Anna L. Sawyer against Joseph Enright From a judgment for plaintiff, defendant excepts. Reversed and remanded.


Davis & Davis, for plaintiff. J. C. Enright, for defendant.

MUNSON, J. The prosecutrix was entitled to a distributive share in the estate of her father, Lemuel A. Giles. Her brother, William H. Giles, now deceased, was the administrator. Defendant was a surety on the administrator's bond. The suit is upon this bond, and the breach declared upon is the administrator's failure to pay the plaintiff her share. The plea is that the plaintiff by her deed duly signed, sealed, and delivered, for a valuable consideration, released and discharged the defendant from this liability. The replication is that the release was obtained by the fraud of the defendant and his agent, and without any valuable consideration therefor; "that is to say" that the plaintiff was an unlearned and ignorant woman, unacquainted with legal documents, terms, and phrase, and that she was induced to sign the release, when ignorant of the contents of the paper, by misrepresentations regarding its purport, and without reading it or hearing it read. The release was procured by defendant's agent. It appears that the paper was read to the plaintiff, but without any explanation of its purport; that "no actual misrepresentation was made," but that the plaintiff is a person of little education and limited intelligence, and that she signed the paper believing that it was something in the nature of a receipt, covering a payment to be afterwards made. It is found that "to this extent" there was passive fraud. There is no finding that the defendant or his agent understood, or ought to have understood, that the plaintiff was lacking in intelligence or Ignorant of the purport of the document. The facts reported come short of a finding of fraud.

There is a further finding that no consideration was ever paid to the plaintiff. This does not fully negative a consideration, for there may have been a consideration other than any kind of payment to the plaintiff. But conceding that the finding should receive a broader construction, the pleadings must be considered in determining the effect to be given it. It is clear that the...

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12 cases
  • Howard National Bank v. Graham Wilson And Trustee
    • United States
    • Vermont Supreme Court
    • May 2, 1923
    ... 120 A. 889 96 Vt. 438 HOWARD NATIONAL BANK v. GRAHAM WILSON AND TRUSTEE Supreme Court of Vermont May 2, 1923 ...          January ... Term, 1923 ...           ... Rutland Ry., etc., Co., supra ; ... Brown v. Aitken , 90 Vt. 569, 99 A. 265; ... Probate Court v. Enright , 79 Vt. 416, 65 A ... 530; Poole v. Mass. Mut. Acc. Assn. , 75 Vt ... ...
  • Rice v. Press
    • United States
    • Vermont Supreme Court
    • January 6, 1953
    ...tried in court upon the issues joined by the parties and evidence is to be received only as it bears upon those issues. Probate Court v. Enright, 79 Vt. 416, 65 A. 530. These issues are usually such as are made by the pleadings, but, counsel may by conduct or agreement limit them to one or ......
  • Howard Nat. Bank v. Wilson
    • United States
    • Vermont Supreme Court
    • May 2, 1923
    ...limit or enlarge the Issues. Dernier, v. Rutland Ry., etc., Co., supra; Brown v. Aitken, 90 Vt. 569, 99 Atl. 265; Probate Court v. Enright, 79 Vt. 416, 65 Atl. 530; Poole v. Mass. Mut, Acc. Ass'n, 75 Vt. 85, 53 Atl. 331. So it is held that the course of the trial may be such as to constitut......
  • Klapprott v. United States, 9382.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 12, 1948
    ...v. Scottdale Connecting R. Co., 1938, 330 Pa. 207, 199 A. 162; Vogel v. Taub, 1934, 316 Pa. 41, 173 A. 270; cf. Probate Court v. Enright, 1907, 79 Vt. 416, 65 A. 530. 6 Burley v. Davis, 1946, 132 Conn. 631, 46 A.2d 417; Lundie v. Walker, 1939, 126 N.J.Eq. 497, 9 A.2d 783; Fellman v. Henders......
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