Tillinghast, Administrator v. Holbrook

At the trial of the case before the Chief Justice, with a jury, at the March term of the court, 1861, for the county of Providence, under the general issue, it appeared, that Emily A. Olney, the plaintiff's intestate, formerly the wife of Thomas J. Simmons, was, in 1852, the owner of certain real estate in North Providence, and being under age, upon the petition of herself and Simmons, her then husband, in which her father, Edmund A. Brown, joined, the General Assembly, at their October session, 1852, passed the following act, enabling her and her husband to sell the same: — "Upon the petition of Thomas J. Simmons and his wife, Emily Simmons, and of Edmund M. Brown, father of said Emily, all of the City of Providence, praying for reasons therein stated, that the said Emily, yet a minor, be empowered to convey certain lands to her belonging, with the same effect as if she had attained her full age, — "Voted and resolved, That the prayer of said petition be granted; that the said Thomas J. Simmons and Emily Simmons be, and are, hereby authorized and empowered, notwithstanding the minority of the said Emily, to make sale and conveyance, with the usual covenants and warrants, to Benjamin A. Holbrook, of Providence, of the lands following, viz.: (here follows a description of the lands); and that a deed or deeds of said lands to said Holbrook, made and executed by said Thomas J. and said Emily, in the form and manner prescribed by law for the conveyance of real estate of which the fee is vested in a married woman, shall be as valid and effectual in law to convey the same, as if the said Emily Simmons had attained her full age.Provided, however, that the proceeds of said sale be invested in a promissory note, fully secured by mortgage, payable to said Emily or order on the first day of September, A.D. 1857, with interest from date to be paid annually to said Emily, for her sole and separate use; and also provided, that said proceeds invested as aforesaid or otherwise, shall descend and be inherited in the *Page 232 same manner as the said real estate would have descended and been inherited." Under the power given by this act, the estate was sold by Simmons and his wife to the defendant, and his promissory note for $2000, dated November 17th, 1852, was given to Emily Simmons, payable to her, or order, five years after date, with interest annually, and was secured by mortgage upon the estate sold. Upon her death the plaintiff was appointed her administrator, and on the 1st day of February, 1858, having demanded the note of the defendant in whose possession it was, who refused to deliver it to him, brought this action against the defendant for his conversion of it. Upon this evidence, the Chief Justice nonsuited the plaintiff, upon the ground, that by the terms of the act of the General Assembly produced, the note, upon the death of Emily Simmons, afterwards Olney, passed to her heirs at law, and not to the plaintiff, her administrator, and that he had no right to demand or sue for the same. A motion was now made by the plaintiff to set aside the nonsuit as improperly ordered, and to grant to him a new trial. The plaintiff in this case was nonsuited, on the ground that, upon the conceded facts, he could not maintain an action for the note, and because the title to it had passed, before suit brought, to the heirs of the intestate, to whom it was payable, and not to her administrator. The general rule is, that in order to maintain trover there must be in the plaintiff, at the time of suit brought, a property in the goods; and that when the whole interest in the property converted passes, after the alleged conversion and before suit brought, to another person, and there be no special damage to the original owner, his right of action is gone. Philips v.Robinson, 4 Bingh. 106; 12 Moore, 308; Harrington v. Price, 3 B. Ad. 170. It must be shown that there has been damage to the personal property, *Page 233 or estate of the party, in his own hand while living, or in that of his executor or administrator, when dead; and the question here is, if, by the conversion, damage resulted to the personal estate of the intestate in her lifetime, or, since her death, to her estate in the hands of her administrator. The property alleged to have been converted is personalty, and not realty; and by the rule of succession would, on the death of the intestate, pass to her administrator; and any suit for its conversion, either in the lifetime of the intestate or after her death, must be brought in the name of such administrator. The note, in this case, was given by the defendant for the proceeds of certain real estate of the intestate, which she, being within the age of twenty-one years, was incompetent to convey. To enable her to do so, and to vest a good title in the purchaser, an act of the General Assembly was passed at the October session, 1852, empowering her, with her then husband, to make sale of the estate to the defendant. The authority to convey was granted upon this condition, — that the proceeds of the sale should be invested in this note, secured by mortgage, and payable to the intestate; and also, "provided, that said proceeds invested as aforesaid, or otherwise, shall descend and be inherited as the said real estate would have descended and been inherited." It is claimed, that the moneys secured by this note, being the proceeds of the real estate sold and the note by which the payment is secured, passed immediately on the death of the intestate to such of her heirs at law as would have inherited from her the real estate, and not to her administrator. Had the land remained, and the owner died intestate, it would have passed to such of her heirs, by the table of descent, as were of the blood of the person from whom it came to her by gift or descent. Upon the conveyance, however, it became converted into personalty, as which, it is provided, that it shall be "distributed amongst the heirs of the deceased in the same manner real estates descend and pass;" "but without any respect to the blood of the person from whom such personal estate came or descended." These proceeds, then, might, by the provisions of law, have gone to heirs of the intestate other than those to whom the land would have passed, viz.: to such of them as had none of the blood of the person from whom *Page 234 the land came. The purpose of this proviso evidently was to prevent such result, and to provide that the moneys into which the land had been converted, notwithstanding such conversion should go to the same persons to whom the land would have gone, if no such authority to convert had been granted by the General Assembly. The language of this proviso requires, that the proceeds of sale shall not pass to the heirs generally, but in ascertaining the heirs, respect shall be had to the blood of the person from whom the land came, if any persons of that blood remain. To whom the moneys are ultimately to go is sufficiently certain; the more important question is, at what time the legal interest passes to the heirs, whether directly and immediately, on the death of the intestate, or mediately, to the same heirs, in the course of distribution. In either mode the object of the proviso is answered, and that equally. The last mode would not, as the first would, require us to disregard the statute provisions in regard to mortgages held by deceased persons. They provide, that money due by mortgage of real estate shall be considered personal property, and be included in the inventory as assets; that the administrator shall have the same control of the interest of the real estate mortgaged as he would of personal estate mortgaged; that he may take the surrender of possession, or sue in ejectment for the seizin and possession of the real estate, and shall hold the possession to the use of the heirs, or of the devisee to whom it may be devised. He may sell it for the payment of debts, and if the mortgagor redeems after possession taken, he shall receive the redemption money for distribution or payment to the devisee, and may discharge the mortgaged premises by release, quitclaim, or other legal conveyance. To require a disregard of all these provisions, the language ought to be strong, and this construction become necessary in order to give effect to the words. All these provisions, however, may well enough be regarded and held applicable to the present note and mortgage, without diverting the mortgage money from those heirs who may be of the blood of the person from whom the land came. If held not applicable, and the proceeds to pass, not to the administrator but directly to the heirs, it would be doubtful, at least, if within any of the provisions of law they could, as personalty, be applied to the payment *Page 235 of the debts of the intestate, even for want of general personalty for that purpose. The language of the proviso does not, in our judgment, require this construction. Had the legislature never applied the terms "descend" or "inherit," and the term "heirs," to the succession by law to other than real estate, the language would have been more controlling, and the implication much stronger of an intent to impress upon this fund the character, and to give it all the incidents of realty. In the public act we find the terms not so limited; on the contrary, personalty is to be distributed to heirs, and in the same manner as real estates descend; and in that distribution, no inquiry need be made from whom the personal estate descended, — implying that it might descend, though it came by distribution. In no case, however, was it implied that the legal title was to pass, not to the administrator, but directly to the heirs. The word "inherit" being correlative in meaning with the word "descend," we may presume was used in the same sense, and does not strengthen the language in this respect. Regarding, then, the language of the public act in this respect, it seems sufficient, in order to give effect to the words and to the object and purpose of the proviso, to hold, these proceeds, and the note and mortgage, to be what the statute declares mortgages of real estate shall be, — part of the personal property of the deceased, to be included in the inventory, — and giving the right to the administrator to sue for the debt secured, or for the possession of the estate mortgaged; but, nevertheless, that the proceeds of sale shall not pass to any others of the heirs of the intestate than such as are of the blood, c., while any heirs of that blood remain. This is the only incident of realty which the proviso seems to have impressed upon this fund. The only purpose or necessity for the provision at all was, to provide for the succession of such heirs, if any such there should be; and if that blood failed, it never could have been the purpose to take this property out of the regular course of distribution. The nonsuit ordered in this suit must be set aside, and anew trial granted, the defendant, in any event, to recover nocosts of this motion. *Page 236 AT the March term of the court, 1862, the new trial of the case was had before Brayton, Justice, with a jury, when, in addition to the facts reported as proved at the first trial, it appeared, that the said Emily A. Simmons was born on the first day of September, 1835, and had just reached her seventeenth year when authorized by the General Assembly to sell her real estate as aforesaid, and to receive therefor the note and mortgage of the defendant; that in the month of May, 1853, she procured a divorce from her husband, Simmons, and shortly afterwards intermarried with Hiram A. Olney. Being a person of loose habits, she afterwards separated from her second husband, Olney, and with her child, took up her residence with one Nehemiah Bucklin, whose house was a disreputable one. Whilst thus living apart from her husband, an infant and a married woman, the Municipal Court of the City of Providence, exercising probate jurisdiction, on the thirteenth day of March, 1855, on the application of her husband and of her father, and after due notice and upon full hearing, appointed Stephen Martin of Providence, her guardian, adjudging that she, for want of discretion in managing her estate, was likely to bring herself to want, and thereby to render herself chargeable to the City of Providence. Martin duly qualified himself for his trust, and a letter of guardianship issued to him out of said court, but he never obtained possession of said note and mortgage, which remained in the hands of the said Emily A. Olney, his ward. From time to time, the defendant, Holbrook, paid to her the interest as it became due on said note, and, upon her order, different sums of money, and, finally, in June, 1855, paid in full all that, deducting such former payments, was computed to be due upon the note, to the said Nehemiah Bucklin, who then held the same. Evidence was also submitted to the jury tending to prove that the said Emily A., whilst she and her child were living with said Bucklin apart from her husband and against the request of her guardian, and shortly before the transfer of this note, received the sum of four hundred dollars, which was at once squandered away; and that whilst there, she endorsed the note over to said Bucklin, the consideration of the transfer, in part, being the board of herself *Page 237 and child for about four months, and some money paid by Bucklin to her at the time of the transfer. In August, 1855, Emily A. Olney died, being a little less than twenty years of age. The plaintiff was duly appointed administrator on her estate, and on the first day of February, 1858, demanded this note of the defendant, who refused to deliver to him the same. At the trial, the counsel for the defendant requested the court to instruct the jury, that the note sued for was lawfully in the possession of the defendant, if they were satisfied from the evidence that he had paid a valuable consideration therefor; but the court refused so to instruct them, and charged them, if they believed, from the evidence, that the said Emily A. Olney was a minor at the time she parted with said note, and if they also believed that she died before attaining her majority, that her transfer of said note might have been avoided by her in her lifetime, and her representative, the present plaintiff, was entitled to avoid the same. The counsel for the defendant also requested the court to instruct the jury, the note in question having come to the hands of the defendant through one Nehemiah Bucklin, for a valuable consideration, and it also appearing that the same was secured by a mortgage given by the defendant to the said Emily A., in conformity with the act of the General Assembly, passed at the October session, A.D. 1852, that if the jury found that the defendant paid a valuable consideration for said note, he was lawfully entitled to hold the same against the plaintiff. This instruction the court refused to give; but, on the contrary, charged the jury, that the note in question was a mortgage debt; and if they found that the said Emily A., was, at the time she parted with said note, the wife of Hiram A. Olney, and that he was then living, the defendant could acquire no title to the note, or right to hold the same against the plaintiff, unless the same was conveyed by a deed executed by the said Hiram A. and Emily A., his wife, in conformity to the provisions of Ch. 136, section 4, of the Revised Statutes. It having appeared, that at the time the defendant became possessed of said note, the said Emily A., wife of the said Hiram A. Olney, had been, by a decree of the Municipal Court of the *Page 238 City of Providence, placed under the guardianship of Stephen Martin, who had duly qualified himself to act in said trust, the court, at the request of the plaintiff, and against the objection of the counsel of the defendant, instructed the jury, that the said Emily A., though a married woman, could be legally placed under the disability of guardianship, for the cause stated in said decree; and if the jury found that she parted with and endorsed said note, whilst under that disability, the defendant, claiming under such endorsement, was not entitled to hold the note against the plaintiff. The counsel for the defendant further requested the court to instruct the jury, it having appeared that a portion of the consideration money paid by the defendant for said note was received by the said Emily A., she being within the age of twenty-one years, and a certain other portion of it was beneficially enjoyed by her in the way of board for herself and child for a period of four months, that if Emily A. Olney were alive, and after arriving at full age elected to avoid her transfer of the note, and commenced an action against the defendant to recover possession of the same, she would not be permitted to recover any greater amount damages than the difference between the sum which she had so received and the amount of the note and interest from the time of the conversion; and if the jury believed the evidence as to the sum of money and other valuable considerations which she had received for said note from the defendant, the plaintiff, her administrator, had no greater rights than his intestate; and the jury should deduct from the amount of the note, with interest from the time it came into the hands of the defendant, the sum which, under the evidence, the jury believed that she had received. The court declined to give this instruction, but charged the jury, that in assessing the damages, they might deduct from the amount of the note and interest all sums paid to the said Emily A. for the annual interest on said note; and if she had been furnished with articles for the use of herself and child, and such articles were a part of the consideration for the transfer of said note, and the jury were satisfied, from the evidence, that the supplies furnished her were actually necessary for her or their use under the circumstances *Page 239 proved, the amount of such supplies should be also deducted from the amount of the note; that when money has been furnished to an infant, in order to charge him or her with the payment of it, it is necessary that it should appear from the evidence that it has been applied to the procurement of necessaries; and that if they found evidence to satisfy them that any money had been so supplied to the said Emily A., the amount so found might also be deducted. Under these instructions, the jury having returned a verdict for the plaintiff for the sum of $2806.66, the defendant now moved for a new trial upon the ground of errors in law in said instructions.