Scott v. Beland.

• Decision Date: 05 February 1946
• Docket Number: No. 929.,929.
• Citation: 45 A.2d 641
• Parties: SCOTT v. BELAND.
• Court: Vermont Supreme Court

45 A.2d 641

SCOTT

v.BELAND.

No. 929.

Supreme Court of Vermont.

Feb. 5, 1946.

Exceptions from Chancery Court, Orleans County; Hughes, Chancellor.

Action by Charles R. Scott, executor of Arthur Scott Estate, against Delia Beland, to remove a cloud upon the title to certain realty, wherein defendant filed a cross-bill, asserting a life estate therein, and a motion that plaintiff individually and as trustee, and others, be made parties plaintiff. The motion was granted, decree was entered for defendant, and plaintiff brings exceptions.

Affirmed.

Lee E. Emerson, of Barton, for plaintiff.

Hubert S. Pierce, of Newport, for defendant.

Before MOULTON, C. J., and SHERBURNE, STURTEVANT, and JEFFORDS, JJ., and CLEARY, Superior Judge.

SHERBURNE, Justice.

Arthur F. Scott died on October 2, 1943, in his 81st year, leaving a will which has been duly allowed, and a substantial estate, a part of which is a tenement building with a first floor apartment at 107 Main Street in Newport, and second and third floor apartments at 109 Main Street. The will gives the use and income of the real estate to his daughter Mabel, during her lifetime, and appoints his executor, Charles Scott, trustee to hold the real estate during such time, and to pay the taxes, repairs and insurance expense thereon from the income of the personal property. After the death of Mabel the real estate is given to his nephews Charles Scott and Fred Scott. The defendant lived in the apartment at 107 from 1927 to the fall of 1938, when she moved to Claremont and later to Manchester, N. H., returning to 107 in April, 1941. Around 1927 defendant's son, Oliver, married Mabel, and after their marriage they lived on the third floor at 109 for a few years. Arthur Scott, the testator, and his wife lived on the second floor at 109 until her decease early in 1933. Soon after his wife's death the defendant did some work for him, and he began to take his meals with her in October, 1933, for which he paid $5 per week, and he continued to take his meals with her in whole or in part until she moved away. In addition to the $5 per week he gave her considerable sums of money each year during this period. After she moved to Claremont he made several trips to see her, and on some of these visits he took her with him in his automobile to visit his daughter and defendant's son, who were then living in Boston. On many of these occasions he purchased a supply of food for the defendant, if the visit was at Claremont, and for the defendant, his daughter and her husband, if the trip was to Boston. During the winter of 1939 and 1940 he boarded for a few weeks with the defendant at Claremont, and during that time paid for his room and furnished the groceries for himself and the defendant. After the defendant moved to Manchester in the spring or early summer of 1940 he made several trips there to see her, and on three of these occasions went on to Boston to visit his daughter and her husband, and the defendant went with him on each occasion. In November, 1940, he went to Manchester and boarded with the defendant until about April 1, 1941. About the middle of April, 1941, the defendant returned to Newport to live at 107 Main Street. Mr. Scott hired and paid E. H. Reece, a truckman, to move defendant's goods from Manchester to Newport on this occasion. After her return she took care of him, assisted him in looking after his tenements and collecting the rents, prepared his meals, and acted as nurse for him when he was ill until his death. After his decease his daughter Mabel divorced Oliver Beland, and she has remarried and now has the name of Wrench.

Because after the death of Mr. Scott the Defendant claimed, among other things, that when she returned in April, 1941, it was under an agreement with him that, if she would do so and take care of him, she should have the life use of the apartment at 107 rent free and heated, and refused to vacate, these proceedings were brought to remove a cloud upon the title. The plaintiff alleges that on April 6, 1941, Arthur Scott and the defendant executed a writing with reference to the apartment at 107, which is Defendant's Exhibit C hereinafter set forth, and that he has been directed by Mr. Scott's daughter Mabel to recover possession of the apartment from the defendant, and that she refuses to vacate. Defendant filed an answer and cross-bill. Later during the trial she filed a motion that the plaintiff individually and as trustee, Mabel Beland Wrench and Fred E. Scott be made parties plaintiff, and that the court issue a citation to have them appear and show cause why the prayer of the cross-bill should not be granted. The motion was granted subject to the exception of this plaintiff. These new parties under the terms of the will were interested presently or ultimately in the property, and were properly made parties in order to conclude their rights by the decree. Patch v. Squires, 105 Vt. 405, 412, 165 A. 919, and cases cited. This exception is not sustained.

In order to present the factual situation and to clearly discuss the plaintiff's exceptions it is necessary to quote many of the findings. We will first set forth all the findings involved, and later take up the exceptions to each.

‘19. The deceased, Arthur Scott, told a lifelong friend who lived in one of his tenements that ‘he wanted her (Delia Beland) to make a home for him the rest of his life and that he wanted to fix it so that she would have a home for the rest of her life’, and he also told for her that ‘he was settling $1500.00 in money on her and he said the papers were made out’. He also said ‘he had no one else that he could depend on to take care of him in his last days'. At another time he told this same friend that ‘he was making out a paper so there would be no trouble but what Mrs. Beland would get the rent as long as she lived and also the money, the $1500.00’.

‘20. During the period when the defendant was living in Claremont, New Hampshire, the deceased, Arthur Scott, asked one Leonard Rossier to accompany him in his automobile to Claremont on a trip and as he approached the home of the Defendant in Claremont he stopped and purchased a lot of groceries and a chicken and remarked to his friend Rossier that he felt he couldn't do enough for Mrs. Beland because she had done so much for him and he felt greatly indebted to her. That on this trip the deceased, Arthur Scott, told his friend, Rossier, that he was in hopes to get the Defendant to return to Newport and take care of him the balance of his life, saying also that no one could give him as good care as she could and that she was a good housekeeper and a good cook, took good care of his clothes, kept them mended and washed, and also a good nurse and very good to help him about his books and collecting rents.

‘21. That while Defendant was living at Manchester, New Hampshire, the Defendant's son, Oliver Beland, had a talk with the deceased, Mr. Scott, in which the deceased said, ‘I have been trying to persuade your mother to come back to Newport and take care of me. She is all alone here in a big rent, very costly to heat; she is all alone to cook for herself, and I am also alone at home and she can come and take care of me and have a nice warm home, comfortable, and plenty to eat and it won't cost her one cent.’

‘22. That on another occasion when the deceased, Arthur Scott's son-in-law, Oliver Beland, was visiting him at Newport after the defendant had returned from Manchester, New Hampshire, to Newport and to the tenement at 107 Main Street where the deceased lived with her until his death, the deceased, Arthur Scott, told his son-in-law ‘I want your mother to have a home here at 107 as long as she lives, she has taken care of me, I don't know what I could do without her. You be good to your mother, she has taken good care of me’.

‘18. That there was produced in evidence a few of the deceased's, Arthur Scott's, letters to the defendant, which were admitted and marked Deft's. A, B, G, H, I, J and K. The deceased letter of March 1, 1939, states that he was sending the children $17.00 a week until business picked up, and further stated ‘I wish you were here where you had no rent to pay and I could get everything you need to eat and stop that worry for you’. In a letter dated August 1, 1940, the deceased, Arthur Scott, wrote to the Defendant in part, ‘I wish you were here and I would call you sweetheart’. In a letter dated September 26, 1940, the deceased, Arthur Scott, wrote to the Defendant ‘Come back where I can take care of you and live the rest of your days and pay no rent. I have a good warm home and all you could wish. I have a good income and I would like to share with you’. In another letter not dated which is a part of Deft's. Ex. B, the deceased, Arthur Scott, wrote ‘Would you move back if I would pay for the truck and pay myself and give you a good home as long as you live and everything paid for and stop worrying and have a good home and be sure of it and know I mean business. If you get short let me know and I mean it. A man will do anything for any person he likes as much as himself’. In a letter dated August 6, 1940, the deceased, Arthur Scott, wrote about coming to see the Defendant and further wrote ‘We will plan for next winter and money when I come. Don't worry when you have a true friend’. In a letter dated November 3rd the deceased, Arthur Scott, stated that he would leave Newport on the Saturday night train arriving there Sunday morning and further wrote ‘Vote for Wilkey and the sun will shine all the time and the birds will sing and we will have all we can eat this winter’. In a letter dated April 10, 1941, the deceased, Arthur Scott, wrote the Defendant about E. H. Reece coming for her goods.

‘23. That while the deceased, Arthur Scott, was boarding with the Defendant at Manchester, New Hampshire, during the winter of 1940 and '41, arrangements were made for the Defendant to move back...