Davis v. Estate of Burnham

The opinion of the court was delivered by Redfield, Ch. J. I. The claim, upon its merits, is certainly very peculiar. The finding of the auditor leaves no ground of doubt, that the plaintiff was fairly and fully entitled to two-thirds of the amount of the pension money drawn. But can he obtain an allowance against the estate, for it. If he can, it must be upon one of two grounds, either the retainer by husband and wife, during the coverture, to perform service for the benefit of the wife and in collecting her debts, or else, that after the service was performed, and the money realized, the administrator took the advantage of the service, and mingled the money with those of the estate. These grounds, are neither of them quite as satisfactory as could be wished. This was a contract made, in law, with the husband, and for the performance of service which was expected to enure to his benefit, that is the reduction of the wife’s choses to possession. There could be no doubt of the liability of the husband, but was the wife also liable, and did that liability attach to her estate ? If the money had actually been received by the plaintiff, before the decease of the wife, her right would thereby have been determined. Hill v. Royce, 17 Vt. 190. I take it there is no dispute the wife cannot bind herself, even [568] by her husband’s consent, to any contract, made during coverture. She is altogether incapable of contracting, on her own account, unless she live as a feme sole, and the husband be civiliter mortuus. Her legal existence is completely merged in that of her husband. It seems impossible then to bind her by the contract. If bound at all, it must be, by the beneficial service, and here it seems to me it is rather for the benefit of the husband. The money, if it could be realized during the life of the wife would vest absolutely in the husband; and this was the consummation looked to in the transaction. This was the object for which the plaintiff was employed, the end towards which he looked, and this was the consideration, on his part, for the compensation. It is true, that by the accident of the wife’s death, before the money was realized, it resulted in putting one third of the money into her estate. The other two-thirds never belonged to the estate, and the administrator could not be compelled, probably, to account for the two-thirds unless he has made himself liable to do so, by inventorying the whole, which, if done under a misapprehension ought not to prejudice his right, and thus make him liable twice over. But will the -receipt of this money by the administrator and putting it into the mass of the estate, be such an adoption of plaintiff’s service as to give a cause of action against the intestate ? This, to have this effect, should have existed during her life time, as it seems to us. Her death determined her power to contract, and the coverture merged it before. It seems impossible, under the state of the case, to make out any legal cause of action against the deceased, and that is the inquiry. The United States statute seems to only apply to the heirs of the pensioner, and not extend to the heirs of such heirs. At all events this part of the inquiry is unimportant. We regard this as strictly a proceeding at law, and that to charge the estate, a contract express or implied, must be shown, which seems to us impossible to be made out of the facts reported. How far the plaintiff may have some other remedy, either in law or equity, against the fund, or some other party, is not needful to be inquired into here. n. The statute in terms, gives the right of appeal “ to any creditor devisee, legatee, or heir,” where the executor or administrator [569] declines taking it. The statute of distributions in this state provides that personal estate shall be distributed, in the same manner as real estate is inherited. And it is generally enacted that children shall inherit the real estate of every deceased person. We cannot comprehend then, why personal estate must not equally go to one’s children, with real estate. And in regard to the latter, no question was ever made. And there is no more reason, for incorporating an exception into the statute of distributions of personal estate, as to femes covert, than in regard to real estate. And if this allowance stands, it will bind all the estate, both real and personal, which may hereafter come to the hands of the administrator. The motion to dismiss was correctly overruled. Judgment affirmed.