Watkins v. Merrihew's Estate

The following facts were found: *Page 296 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 ten or twelve 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: "Whereas Ed. S. Watkins, C.H. West, Samuel E. Burnham, Jesse McIntyre, C.B. Kendall, Samuel Moore, John W. Titcomb and Hiram Merrihew have together purchased and now own the island known as Ben-laws island situated in Lake Champlain in the town of Colchester, County of Chittenden and State of Vermont, and have agreed to expend thereon certain sums of money for improvements to said island, buildings thereon and such other purposes as may be mutually agreed upon by and between said parties, now in consideration of the mutual promises hereinafter set forth it is agreed that should any of the aforesaid parties desire to dispose of his interest in said island and in whatever improvements have been made thereon that the remaining parties shall repay to him whatever money has been paid out by him in the purchase of said island in making improvements thereon without interest, said amount being 175.00 Dollars, and upon the decease of any of the above parties the said sum shall be paid to heirs, executors and administrators. And each of the said parties hereby agrees to and with the others for himself, his heirs, executors and administrators that he will not bargain, sell or convey said property and improvements to any other person or persons or in any other manner than as above set forth — Save that it should be eventually agreed at any time between all the parties who hold the said property and improvements to sell and dispose of the same then and in that case the said property may be sold to any person or persons whatsoever free from restrictions or condition by anything herein contained. Any of said parties who may so desire may with the consent of the other parties above mentioned erect a cottage for his private use on said land *Page 297 but after the erection of such a cottage his obligations for support of the clubhouse and his rights therein shall continue unchanged and if he shall dispose of his interest in said land and improvements to the other parties as heretofore provided he shall not receive any compensation for the cottage rented for his private use unless the other parties chose to give him compensation therefor. In witness whereof the said parties have hereunto set their hands and seals at the City of Rutland this 16th day of August A.D. 1894." 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, $322.00, which sum was the amount of $175.00 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.