Wilkinson's Adm'r v. Wilkinson

• Decision Date: 01 May 1889
• Citation: 17 A. 795,61 Vt. 409
• Court: Vermont Supreme Court
• Parties: WILKINSON'S ADM'R v. WILKINSON.

17 A. 795

61 Vt. 409

WILKINSON'S ADM'R

v. WILKINSON.

Supreme Court of Vermont. Addison.

May 1, 1889.

Exceptions from supreme court, Addison county.

This was an action of general assumpsit. Pleas, the general issue and offset. Heard on referee's report, exceptions thereto, and motion to recommit. The following is the material part of the referee's report: Plaintiff is the administrator of the estate of Heman Wilkinson, who died September 20, 1883, leaving surviving him a widow and nine children, all of age, of whom Lewis H. the defendant is the oldest. The deceased at the time of his death owned a farm situate in the town of Bridport, on the shore of Lake Champlain, and a ferry-boat which plied between the opposite shores of said lake under a franchise known as the "Port Franklin Ferry," owned by his son Lewis H., the defendant. After intestate's death, the widow, the invalid daughter, a son by the name of Leman, and the defendant continued to reside upon said farm. In May, 1886, the widow's dower and homestead were set off, and the balance of said farm was distributed among said children, about five acres falling to the share of defendant; and since said last-mentioned date said land has been carried on in common by the widow, defendant, and other children. Plaintiff claims that on the 30th day of November, 1885, he sold to the defendant a lot of farming implements and tools belonging to said estate and on said farm for the agreed price of $64.50, and I find that such sale was agreed upon. Said implements and tools have hitherto continued in use upon said farm by and for the benefit of said widow, said defendant, and the other children in carrying on said farm. No part of the consideration has been paid by defendant, and no other delivery of said implements was made to defendant by plaintiff other than what results from the foregoing facts. To this report the defendant filed exceptions, and moved to recommit. The court denied the motion, overruled the exceptions, and gave judgment for the plaintiff in the sum of $76.38 and costs. Exceptions by the defendant.

Stewart & Wilds, for plaintiff. Tupper & Bliss, for defendant.

POWERS, J. The error, if any, of the county court in refusing to recommit the report to the referee, is not revisable here. It was a discretionary matter with that court to decide whether to recommit or not. Fuller v. Wright, 10 Vt. 512, and many other reported cases. The report is somewhat barren of facts relating to the sale of the farming tools to the...