White v. White

• Decision Date: 14 March 1896
• Citation: 34 A. 425,68 Vt. 161
• Court: Vermont Supreme Court
• Parties: WHITE et al. v. WHITE et al.

34 A. 425

68 Vt. 161

WHITE et al.

v. WHITE et al.

Supreme Court of Vermont. Chittenden.

March 14, 1896.

Appeal in chancery, Chittenden county; Russel S. Taft, Chancellor.

Bill in equity, filed by Henry S. White and others against Euphemia A. White and others. Pro forma decree for orators, and defendants appeal. Reversed.

C. M. Wilds and E. R. Hard, for appellants.

Roberts & Roberts, for respondents.

ROWELL, J. This is a bill for the specific performance of an agreement to devise certain houses, or, rather, not to defeat a devise thereof already made. The essential facts are these: The orator Henry S. White, and his father, Hiram S. White, were partners in business for many years. Dissolution of the firm was followed by serious disagreement between them concerning their partnership affairs, each claiming that the other was largely indebted to him on account thereof. Finally, in September, 1892, Hiram sued his son in respect of them, demanding large damages, and the suit was duly entered in court. On April 11, 1893, Hiram made his will, whereby he devised to the orator Pinkerton (his granddaughter, and Henry's only child) the houses in question. Shortly before June 14, 1893, Hiram, being sick, and about to die, desired to obtain a settlement of said suit, which was still pending, and of all claims and controversies between him and his son; and to that end he employed Mr. Burnap, his counsel and legal adviser, and the executor named in his will, to effect such settlement. Henry held a $600 note against his father, which, on its face, had long been outlawed; and he claimed a large balance besides. Hiram claimed that he never in fact owed the note, and that Henry was largely indebted to him, and this he believed to be true. After much negotiation, and on said lastmentioned date, Burnap effected a settlement, which, stated most favorably for the orators, was this: Hiram paid to Henry $300, allowed him to remove and have a certain building, and agreed not to alter his will in respect to said devise, nor otherwise to defeat the devise; in consideration of all which, Henry surrendered said note to be canceled, and released and discharged his father from all other claims and demands that he had against him, and his father executed a like release to him, but neither release made mention of the devise, nor of the agreement concerning it. Instantly upon the consummation of said settlement Hiram determined to break the contract by defeating the devise, and accordingly, two days after, conveyed said houses, through another, to his wife, who paid no value therefor, and who alone is defending this suit. Hiram died on the 29th of said June, and his will was duly probated, and commissioners appointed on his estate, before whom Henry appeared, with counsel and witnesses, and presented for allowance his entire account against his father growing out of said partnership business, and also said $600 note. The estate presented his release to his father in defense, and introduced no other testimony. Henry raised the question by testimony, such as he now introduces, and argued that said release was obtained by fraud, and in consideration that said devise should stand; and, as that had been defeated, the release was void. The commissioners disallowed his entire claim, and their report was accepted by the probate court and recorded, and he did not appeal. The orators claim that they are not barred of relief by the proceedings before the commissioners, and their decision, because, they say, the parties are not the same, as that was a proceeding in favor of Henry alone, in which Mrs. Pinkerton had no interest whereas here she is the party in interest, and he is joined only for conformity, as her equity arises out of a contract made through him for her benefit; that the issues are not the same, and the ground of the commissioners' decision does not appear, whether it was that Henry's claims were not established by sufficient proof, or were cut off by the release; if the former, that that was not a finding that the claims were not made in good faith, which is the only question that can be raised here, and if the latter, it is consistent with and sustains the present claim; that, although it was argued before the commissioners that the release was obtained by fraud, it does not follow that they so found, but rather that the fraud was an afterthought that did not affect the settlement evidenced by the release, and was only a violation of the contract for which the parties in interest had their remedy, as the present remedy; and that Henry could recover before the commissioners only on the ground of a rescission of the contract but that he had in his hands $300, the fruits of that settlement, which was inconsistent with a rescission.

Although it is alleged in the bill that said devise was made known to Mrs. Pinkerton by the testator, yet it does not appear that she knew of said contract before the bill was brought; and in that she does not disavow the...