Witters v. Sowles

• Decision Date: 13 August 1887
• Citation: Witters v. Sowles, 32 F. 130 (D. Vt. 1887)
• Court: U.S. District Court — District of Vermont
• Parties: WITTERS, Receiver, etc., v. SOWLES, Ex'r, and others.

32 F. 130

WITTERS, Receiver, etc., v. SOWLES, Ex'r, and others.

United States Circuit Court, D. Vermont.

August 13, 1887

Chester W. Witters and Guy C. Noble, for orator.

Edward A. Sowles and Kittredge Haskins, for Edward A. Sowles and Margaret B. Sowles.

Edward A. Sowles, for Susan B. Sowles.

W. D Wilson, for Town of Fairfax.

Albert P. Cross, for Town of St. Albans and defendants Atwood.

WHEELER J.

This bill is brought to charge the assets of the estate of Hiram Bellows, in the hands of the defendant Sowles, as executor and of the other defendants, as devisees and legatees, with an assessment on 430 shares of the capital stock of the First National Bank of St. Albans, of the par value of $100 each made by the comptroller of the currency equal to that amount. At the time of the organization of the bank, in 1864, the testator took 450 of its 1,000 shares, and they were placed to his name on the books of the bank. In 1865 he refused to pay his taxes, and the collector advertised and assumed to sell 50 shares of this stock, which were bid off by the defendant Sowles and paid for by money of the bank, for which he gave his note. The collector made no transfer of the stock on the books of the bank, and it stood there the same afterwards as before. The validity of the tax was in suit between the testator and collector, and was finally decided against the testator in 1869. Bellows v. Weeks, 41 Vt. 590. To about that time Sowles received the dividends afterwards the testator did. After the death of the testator, Sowles paid his note given for the stock to the bank. It is claimed now that Sowles became the real owner of these 50 shares, and that the estate of the testator is not liable for the assessment upon them. The laws of the state for the distraint, keeping, and sale of property for taxes did not, at that time, apply to property of this nature, and the attempted sale by the collector had no effect whatever upon the title. Barnes v. Hall, 55 Vt. 420. It is urged, however, that the acquiescence of the testator, shown by permitting Sowles to receive the dividends, made the sale good. However this might have been if Sowles had continued to receive the dividends after the contest was over, his yielding the right to them, from that time, to the testator, shows with plainness that they both understood that the stock belonged to the testator, and that the receipt of dividends and payment for the stock were to be adjusted on that basis. Sowles has, since the death of the testator, undertaken to transfer more shares as executor than would remain to the testator, without these, which shows the same thing. The real title to these shares appears, therefore, to have been in the testator, as the record title on the books of the bank was, at the time of his death. He died October 18, 1876. At that time he was still the owner of the 450 shares, and they all stood in his name on the books of the bank. He left a will providing for various devises and bequests to the defendants other than Sowles, the executor, and made his wife, Susan B. Bellows, residuary legatee, and appointed the defendant Sowles executor, without requiring additional surety on his bond. Letters testamentary were granted accordingly, with additional surety for the payment of debts, as required by the laws of Vermont in such cases. Rev. Laws, Sec. 2067. Proceedings were taken for ascertaining the debts due from the estate, and the executor satisfied some of the legacies wholly, and others in part, out of the assets of the estate. Ten shares of the stock were transferred by the executor to Oscar A. Burton, and 10 to George W. Foster, in a manner about which no question is now made.

In 1880, Susan B. Bellows died, leaving a will making, so far as is material, the same devises and bequests as were made by the will of Hiram Bellows, except that their adopted daughter, Margaret B. Sowles, wife of Edward A. Sowles, executor of his will, was made residuary legatee in her will; and Edward A. Sowles was appointed executor of her will, with the same provision that additional surety should not be required on his bond, and that he should not be required to file any inventory of her estate. Letters testamentary were granted to him upon her estate accordingly, with additional surety upon his bond for the payment of debts, of which, however, there appears to have been none.

Prior to or on March 11, 1881, Sowles, as executor of each of the wills, appears to have applied to the probate court having jurisdiction for an order for the settlement of his accounts, and for decrees of distribution under each will, whereupon notice was ordered to be given for that purpose, as required by law for such settlement and decrees, on the twenty-sixth of the same month, and notice having been given the hearing was continued to the thirtieth. On that day Margaret B. Sowles made an application in writing to that court, signed by her as residuary legatee, wherein she requested the court to 'decree the amount of real and personal estate named in Hiram Bellows' will to E. A. Sowles, executor therein named, according to the terms of said will, without finding any definite amount in said executor's hands,' and 'to decree to the undersigned all the residuary portion of real and personal property named in Susan B. Bellows' will, or owned by her, without finding any definite amount in E. A. Sowles', executor's, hands, without any inventory or specification of items, or articles or estate,' and added, 'and I accept the same without further specification, and exonerate said E. A. Sowles, as executor, named in said wills, from further duty or liability in the premises. ' And the court made decree in the case of Hiram Bellows' estate, reciting the notice and continuance, and the appearance of Sowles, executor, and representation by him that he had paid, and had in his hands sufficient funds and estate to pay, all the legacies, leaving to be decreed to the residuary legatee both real and personal estate, and that after paying the bequests, naming them particularly, the residue was devised and bequeathed to Susan B. Bellows, who had deceased, and of whose will Edward A. Sowles was executor, and that Sowles, as executor of her will, had requested the court to decree the residue to him, as such, without an inventory or specific amount found; and that the court found from the evidence that the testator, Hiram Bellows, died seized of estate sufficient to pay all the debts and legacies, and leave a large amount of real and personal estate to be decreed to the residuary legatee; that he pay to each of the legatees named in the will the sum bequeathed in the manner specified, and that the real and personal estate therein devised to each was thereby decreed and assigned to each as in the will provided; and that the remainder, after paying the legacies, was thereby decreed to the estate of Susan B. Bellows, residuary legatee, of whose will Sowles was executor. And after similar recitals respecting the estate of Susan B. Bellows, naming the bequests, and reciting the application, in substance, of Margaret B. Sowles, the court decreed that the executor pay all the legacies, and decreed the residue to her. No appeal was taken from these decrees, and on the next day after they were passed, Edward A. Sowles, as executor of the will of Hiram Bellows, transferred to Margaret B. Sowles, on the books of the bank, in accordance with the by-laws of the bank, 400 shares of this stock, and that number of shares was credited to her on the stock ledger of the bank, and charged to the stock account of Hiram Bellows. These 400 shares stood in her name on the books of the bank until its failure April 7, 1884.

The bill alleges, as to these 400 shares, referring to this transfer previously therein set out, that such pretended transfer was made before the conditions of the decree had been complied with, by paying the legatees the several sums bequeathed to them, of which sums the amount of about $40,000 remained unpaid, with less than $30,000 of property in the hands of the executor, aside from this bank stock, from which to pay this balance; that she had no knowledge of the transfer until a long time after it was attempted to be made, and after the bank became insolvent; that she never accepted or assented to the transfer, nor received any certificate of the stock, or dividends thereon.

The answers of the executor, and of Margaret B. Sowles, who is made a defendant on account of the receipt of assets, admit these allegations, and she affirms their truth. The answers of the other defendants deny them. That the executor had not assets in his hands, aside from this bank stock, sufficient to pay the balance of the legacies, at the time of the transfer, sufficiently appears. On the question whether Margaret B. Sowles knew of the transfer of the stock to her, and accepted it or assented to it, the other defendants, or some of them, took the testimony of the listers of the town, to whom tax-payers are required to return a sworn inventory of their taxable property, as to the contents of her inventories, with reference to whether this stock was therein set down by her as her taxable property after the transfer, and called upon the town clerk having custody of some of these inventories to produce them. Motion was made to suppress this testimony, and the offer to have the town clerk required to produce the inventories was objected to. The laws of the state provide that these inventories, after they are made by the tax-payers, shall be taken up by the listers, and on or before a certain day be lodged in the town clerk's office, and there kept three years; that the town clerk shall allow certain prosecuting officers, the listers and selectmen, and...