Taylor v. Vail

• Decision Date: 18 May 1907
• Citation: 80 Vt. 152,66 A. 820
• Parties: TAYLOR v. VAIL.
• Court: Vermont Supreme Court

66 A. 820

80 Vt. 152

TAYLOR

v. VAIL.

Supreme Court of Vermont. Washington.

May 18, 1907.

Appeal in Chancery, Washington County; Loveland, Chancellor.

Suit by W. H. Taylor, administrator, against H. Douglass Vail. From an adverse decree, the orator appeals. Reversed and remanded with mandate for an accounting and decree.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, HASELTON, and POWERS, JJ.

Taylor & Dutton, for appellant Zed S. Stanton and Geo. W. Wing, for appellee.

MUNSON, J. At the time of the transactions in question Mrs. Hobart, the orator's testatrix, was about 80 years old. She and her husband were people of small means and limited business experience, inclined to narrow views and economical in their dress and living, but greatly interested in religious and missionary work, and liberal in its support. Their only daughter had lived with them much of the time, and had expended considerable sums in improving their place. Shortly before her death, realizing that her parents would be left without any near friend to care for and assist them, and acting with the knowledge of her mother, she requested Mr. Vail, the defendant, to see to them after her death, and he consented to do so. Vail was a merchant, living and doing business in the testatrix's neighborhood, and active in town and church affairs. After the daughter's death, which occurred in October, 1887, he looked after and assisted the testatrix and her husband, both of whom had unbounded confidence in his ability and integrity. Early in 1889 Mrs. Hobart inherited over $35,000 from the estates of her brother and his wife, residents of Ohio, whose deaths occurred at about the same time. The husband died first, and both died testate, but the wills were such that the property passed as though there were none. Mrs. Hobart was one of four heirs entitled to share alike, and there was a half-brother, who took nothing under the laws of Ohio. Representatives of the estates, including Mr. Burton, an attorney, visited Mrs. Hobart in March, and arrangements were made for a further meeting at Montpelier. The defendant and Mr. Hiram A. Huse were present at this meeting. On this occasion Mrs. Hobart said she considered herself incapable of taking care of the property, and asked what she could do about it. Some one other than Vail or Huse suggested that, as Mr. Vail was already looking after her affairs to some extent, he might undertake the care of this property. This seemed satisfactory to Mrs. Hobart, and Mr. Vail was asked if he would do it, and said that he would if it was Mrs. Hobart's request. Mr. Burton then drew up a power of attorney, authorizing Vail to receive, invest, and manage all the funds in question. At this interview, on the suggestion of representatives of the estate, Mrs. Hobart consented to an arrangement by which the half-brother was to have an equal share in the property. There was also some provision or arrangement by which the sum of $13,420 of the estate was retained to provide an annuity for Annie A. Strickland during her life. Mrs. Hobart's share, under the arrangement including the half-brother, and exclusive of her interest in the Strickland fund, was $25,600. Five hundred dollars of this was left in Cleveland as a gift. The remainder came in a series of payments, beginning in March, 1889, and continuing until September, 1892. Mrs. Hobart gave receipts for the several remittances and indorsed the checks, but all further business connected with the fund was done by the defendant. In June, 1889, Mrs. Hobart made her will, giving nearly all her estate to certain societies after the death of her husband, and giving $200 to the defendant, and appointing him her executor. In December, 1891, she made a codicil, giving the defendant an additional legacy of $1,000, and the gold watch formerly her brother's. The orator is the administrator with the will annexed. In December, 1892, Mr. Huse and Mr. Howland went to Worcester for the purpose of making some disposition of the property of Mr. and Mrs. Hobart. A conversation was had between Mr. Huse and the Hobarts, mainly conducted on the one side by Mrs. Hobart, in which Mrs. Hobart's purpose and wishes were stated, and the effect of what she proposed was explained by Mr. Huse. The main part of the conversation was taken down in shorthand by Mr. Howland, and the conversation is found to have been as shown by his minutes, a copy of which is incorporated in the report. After this conversation Mr. and Mrs. Hobart executed deeds conveying their real estate to Vail, and Vail executed a life lease of the same to the Hobarts, which lease the master says was delivered to and kept by Mrs. Hobart's attorneys, Dillingham, Huse & Howland. Messrs. Huse and Howland visited Worcester again on the 27th of January, 1893; and on this occasion Mrs. Hobart gave Vail an assignment of all her interest in the estates of her brother and his wife, including her interest in the Annie A. Strickland fund, and signed a discharge of a mortgage which Vail had given her October 3, 1891, to secure an existing indebtedness and any that might afterwards accrue. At the same time Vail gave Mrs. Hobart a writing by which he agreed to render to Mrs. Hobart, while he lived and was capable of doing it, such personal service as he had performed for her the previous year, and to pay her in each year of her life $600 as it might be demanded; and also made a will by which he gave her, in case she survived him, the sum of $15,000. It appears, further, that at or about this time Vail had his life insured for $15,000 for Mrs. Hobart's benefit. On the 10th of March following, Vail executed a mortgage to Mrs. Hobart covering the premises deeded him by the Hobarts and other lands, and conditioned to secure the performance of his agreement of January 27th, which mortgage was recorded March 21st. On the 1st day of April Vail delivered this mortgage and a certificate from the town clerk to Dillingham, Huse & Howland, and received from them the discharge of his mortgage of 1891, which Mrs. Hobart had signed January 27th, and the notes secured by said mortgage. A few weeks later the Hobarts gave Vail a bill of sale covering all their personal chattels of every description. The master finds that at the time these papers were executed both Mr. and Mrs. Hobart were in good health, and in possession of their mental faculties; that Mrs. Hobart had always been a person of strong mind and will, with strong likes, dislikes, and prejudices, and was at this time bright and keen; that Mr. Huse fully and particularly explained all these matters to Mr. and Mrs. Hobart, and discussed the details of them with great care; that the value of the personal estate was talked over, and the amount called $17,000; and that no undue influence was had or exercised to procure the transfers. The orator excepted to the use of evidence tending to show any understanding not covered by the papers, and now insists that the nature of the transaction is to be derived from the papers alone, and that the arrangement evidenced by the papers was merely a contract, and that, being a contract, its validity will depend largely upon the adequacy of the consideration. The master has left the construction of these papers, and the nature of the transaction evidenced by them, to the determination of the court. The master has incorporated in his report, not as a finding of fact, but as an admission, for whatever bearing it may have upon the subsequent acts of the parties, a statement in the answer, which is, in substance, that about December 1, 1892, the testatrix and her husband proposed to give the defendant what property they then had, if he would furnish them a stipulated sum annually, and allow the testatrix to make such donations as she desired out of the property, and maintain a home for them, and care for them during their lives as he had done for several years previous, and that he accepted the proposition, and that the writings above described were drawn to effectuate this agreement. The master finds, independently of the papers, if permissible to find it from the above statement and from the conduct and statements of Mrs. Hobart and the defendant subsequent to the execution of the papers, that Mrs. Hobart always understood that she would be allowed by the defendant to make such donations as she desired to out of the personal property and out of any of the real estate she had deeded him. It appears that Mrs. Hobart continued to contribute liberally for missionary and charitable purposes long after the deeds and assignments were made, and that funds for this purpose were furnished by the defendant. It also appears that she once contemplated making a gift of some of the real estate conveyed to the defendant, and that the defendant consented to this in writing, but that nothing further was done about it. The report was submitted to counsel for their suggestions before filing, and, in view of certain requests made by the orator the master reported further, that there was no direct evidence upon the question of undue influence, that the orator claimed the burden was on the defendant to show that the execution of the papers was not procured by undue influence, and that he did not pass upon the question of law, but made his finding that there was no undue influence upon a consideration of certain facts, circumstances, and evidence thereafter stated, in connection with other evidence not referred to. The master then refers to the daughter's request in contemplation of her death, the suggestion of ...