Watkins v. Merrihew's Estate
Decision Date | 09 January 1926 |
Citation | 131 A. 794 |
Parties | WATKINS v. MERRIHEW'S ESTATE. |
Court | Vermont Supreme Court |
Appeal from Chancery Court, Chittenden County; Frank D. Thompson, Chancellor.
Suit for specific performance by Edward S. Watkins against the estate of Hiram Merrihew; Lincoln Merrihew, administrator. From a decree dismissing the bill, plaintiff appeals. Decree affirmed, and cause remanded.
The following facts were found:
About August 16, 1894, the plaintiff C. H. West, Samuel E. Burnham, Jesse McIntyre, c. B. Kendall, Samuel Moore, John W. Titcomb, and Hiram Merrihew purchased of Bernard H. Porter Ben Law Island of about 10 or 12 acres in Lake Champlain off from the town of Colchester, and by two deeds from Porter it was conveyed to them later. It was purchased for the purpose of being occupied by the purchasers as a club, and a clubhouse was to be built thereon, which was later built, to be occupied by them jointly.
On August 16, 1894, an agreement was drawn up as to the use and occupancy of the island, and was signed by all of said purchasers, except Mr. Titcomb, but he was a party to the same, and was bound by its provisions. Said agreement is as follows:
After the island was purchased, a clubhouse was built and maintained thereon by most of the purchasers. Hiram Merrihew never paid anything toward the erection and maintenance of the clubhouse.
At some time after the island was purchased, Hiram Merrihew, by virtue of the provisions of the agreement of August 16, 1894, erected a cottage, barn, and icehouse on the southeast corner of the island, which he occupied until his death.
On October 6, 1922, H. A. Bailey, the plaintiff's attorney, tendered to the defendant Lincoln Merrihew, as administrator of Hiram Merrihew's estate, $322, which sum was the amount of $175, and interest on the same from the date of Hiram Merrihew's death to the date of the tender. Such tender was refused by said Lincoln Merrihew. All exhibits are referred to and made a part of the findings. Other facts found appear in the opinion.
Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.
H. A. Bailey, of Burlington, for appellant.
Chas. F. Black, of Burlington, for appellee.
This bill is brought for specific performance of the agreement set forth in the statement of the case. No exception was taken to the facts found by the chancellor. A decree was rendered dismissing the bill with costs to the defendant. The case is here on the plaintiff's appeal. The decree must be affirmed for several reasons.
Under the two deeds from Bernard Porter the nine grantees took severally an undivided one-ninth interest in Ben Law Island, as tenants in common. Hiram Merrihew, one of the cotenants, died intestate on July 18, 1907, and one Harvey Merrihew was appointed administrator of his estate. Harvey Merrihew died on May 8, 1922, and on June 15th following Lincoln Merrihew was appointed administrator de bonis non of the estate of Hiram Merrihew, and has acted as such from that time. This bill was served on defendant October 13, 1922, and it was filed the 18th of the same month.
At the time of Hiram Merrihew's death, he owned his original undivided one-ninth interest in the island, and an undivided one-fifth of the interest of Samuel E. Burnham, another of the original cotenants. The findings state that Hiram Merrihew's estate now owns such interests. That this statement is not true in fact nor in law appears beyond question from the record before us. On the death of the intestate his said interests in the island at once vested in his heirs by descent, subject to the lien of the administrator when later appointed. Babbitt v. Bowen, 32 Vt. 437; Austin v. Bailey, 37 Vt. 219, 86 Am. Dec. 703; Alexander v. Stewart, 50 Vt. 87; Bridgman v. St. J. & L. C. R. R. Co., 58 Vt. 198, 2 A. 467; Coolidge v. Taylor, 85 Vt. 39, 80 A. 1038. But such lien was given only to the extent of so much as was required...
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