Sprague v. Estate of Sprague

[488] The opinion of the court was delivered by Bennett. J. We apprehend that there is no ground to claim that Jedediah Sprague was bound to maintain the second wife of the intestate under his contract, and the condition in the intestate’s deed to him. The condition of the deed simply required the plaintiff “ to live with, and assist in providing for the intestate and Clarissa, his wife, and their daughter Clarissa, as he had done for the three years then passed, during the natural lives of the intestate, and Clarissa, his wifeand upon the performance of the condition, the plaintiff was to come into the possession of the farm upon the decease of the intestate, and his wife Clarissa. The case before us does not involve any question relative to tiro maintenance of the intestate, and Clarissa, his wife, or the daughter. But the case shows that in May, 1831, the intestate’s first wife died, and in March, 1832, he married a second wife, and it is in relation to her support that the questions arise. It is perfectly clear that the plaintiff must rely for a recovery upon matter aliunde the original contract, and it is in fact upon such matter that he rests his claim. The case shows that after the intestate was married to his second wife, and brought her home, the plaintiff told him that he was under no obligation to provide a support for his second wife, and claimed that he ought to be paid for whatever he furnished and provided for her ; and thereupon the intestate told him “ to carry in his claim against his estate, after his decease, for the support he had furnished or should furnish his second wife, and it seems the plaintiff went on and furnished the support. It is obvious that neither party treated what was furnished for the support of the second wife as being furnished under the original contract, and we think the auditor might well find, from the evidence, the contract which he does, that is “ a contract between the plaintiff and the intestate, that the plaintiff should be paid out of the estate of the intestate, after his decease, for the support furnished for his second wife.” As by the terms of the contract the plaintiff could have no right of action to enforce payment in the life time of the intestate, it is manifest that the administrator can not rely upon the statute as a bar to any part of the plaintiff’s claim for furnishing provision, etc. for the second wife of the intestate, and the auditor has found the charges were reasonable, and we see no reason why the plain [489] tiff is not entitled to recover for all those items in his account. In regard to the plaintiff’s claim for the wool, the report of the auditor seems to put that upon somewhat different ground. It appears that so long as the intestate’s first wife lived, the plaintiff, after the execution of the deed, furnished the intestate twenty fleeces of wool annually, and that after'the death of the intestate’s first wife, the plaintiff told the intestate that he ought not to have more than ten fleeces a year, half as much as he had while his first wife lived, and that the intestate replied to this, that “ he wanted twenty fleeces a year while he lived ; that he should not live long and that the plaintiff did furnish the twenty fleeces a year to the intestate until his death. The auditor finds that the intestate sold some of the wool that was furnished to him after the death of his first wife, hut how much does not appear, neither does it appear what use was made of the rest of it. The auditor says the above facts are all that was proved to have transpired between the intestate and the plaintiff respecting the wool; and the auditor refers the question to the court, whether such a state of facts entitles the plaintiff to recover for the ten fleeces of wool. The case shows that the plaintiff had lived with the intestate, his father, for three years prior to the execution of the deed, and had carried on his farm, and had taken care of his father and mother, and furnished them all they needed from the produce raised on the farm, but not groceries or other things not produced on the farm; and the report says he also, during the three years, furnished what wool his mother “ wanted to-use.” No particular quantity of wool is ffund to have been furnished for those three years, but it is found that the plaintiff, after the execution of the deed, did furnish to the intestate twenty fleeces of wool each year under the contract, during the life time of his mother, ’and no claim is made by the plaintiff for any part of that wool. To give the plaintiff a right to recover for any portion of the wool furnished after the intermarriage of the intestate with his second wife, it must have been furnished under such a state of facts as to create a personal liability, and it must have been so intended by the parties at the time. If it was furnished by the plaintiff under the contract, though he did not consider that the contract required him, after the death of his mother, to furnish any more than ten fleeces a year, yet he could not, in such a case, make [490] a legal charge against his father. It would not have been furnished as creating a debt, but rather as a gratuity. When the plaintiff after the death of his mother, told his father that he ought to have only one-half as much wool as he had while his mother lived, the reply simply was, “ he wanted twenty fleeces a year while he lived ; he should not live long.” Though the precise time of this conversation is not found, yet from the fact that the plaintiff has charged on his account, ten fleeces in July, 1831, and ten fleeces in July, 1832, it 'was, most likely, before the intermarriage of the intestate with his second wife. This reply does not indicate that the old gentlenan expected that his estate was to be charged with the ten fleeces of wool a year. When the son, alluding to the contract, tells his father that he ought to have but half as much wool as he had while his mother lived, he says “ I want twenty fleeces a year while I live, and I shall not live long.” This seems very much like a repudiation by the father of the ground taken by the son, and certainly, as matter of law, we can not say that upon such a finding, a legal personal liability was created against the father or his estate. It is purely a question of fact, for the auditor to settle whether the ten fleeces of wool, from year to year, were treated by the parties as being furnished under the contract, or upon the personal liability of the intestate. We can Dot say, as matter of law, that upon the facts found, there was error in the county court in rejecting this part of the plaintiff’s claim. The more important question in the case relates to the plaintiff’s claim for interest on his account. The auditor finds that the plaintiff was to be paid for the support of the second wife of the intestate out of his estate, after his decease. It was no part of the agreement, as found by the auditor, that the intestate should pay interest on the account, and there was no wrongful detention of the debt by the intestate in his life time, so as to give a right to claim interest as damages, for the reason that it was not due. There is nothing found in this case by the auditor, as to the agreement or expectation of the parties on the subject of interest, and the nature of the case is one that would not seem to admit of [491] any known custom to pay interest, and none was attempted to be proved before the auditor. Where there is a known custom or usage to charge or claim interest, the parties may be supposed to have adopted the usage as one of the terms of their dealing, and it was upon that ground the court went in allowing interest in the case of Raymond v. Johnson, 8 Vt. 258, on the semi-annual balances of the account. No facts or reasons are given in the report for the allowance of interest, and it may seem that the auditor may have gone upon the ground that the account carried interest upon it, as matter of law, in the life time of the intestate ; but this can not be, until there has been some default in payment. We can not assume a custom to pay interest in cases of this description, and we apprehend that before interest can be allowed on this account in the life time of the intestate, it should be found that it was the agreement or expectation of the parties that interest should be paid; and this is purely a question of fact for the auditor to find, and it should be made affirmatively to appear. Whether there are any sufficient grounds in the case to justify such a finding, was a matter peculiarly for the auditor. We think then, upon this part of the case, that there was error in the county court in allowing the interest as charged. The judgment of the county court is reversed; but instead of recommitting the report for a more distinct finding of the auditor as to the claim for interest, judgment, by the consent of the plaintiff, is to be rendered that he recover the sum reported by the auditor, with interest after the death of the intestate.