Roberts v. Lund

The opinion of the court was delivered by Redfield, J. This action is trover for the conversion of certain mortgage notes and United States bonds The question in issue was the title of th-i property. The defendant was the husband of the intestate at the time of her decease. I. The plaintiff’s testimony tended to prove the defendant had admitted that the property belonged to the wife. The court, on motion of the plaintiff, excluded the defendant as a witness to any matter that occurred prior to the plaintiff’s appointment as administrator. To this ruling the defendant excepted. We think the defendant can take nothing by this exception. The case falls within the rule established in Fitzsimmons v. Southwick, 38 Vt. 509. The cases of Hollister, adm’r, v. Young, 42 Vt. 403, and Merrill, adm’r, v. Pinney, 43 Vt. 605, are not in conflict with this rule. II. It is claimed that, as the intestalte, by reason of coverture, could not maintain this action, it could not be maintained by her administrator. Coverture is a personal disability, springing from [87] the conjugal relation, and does not attach to her adminitrator. The plaiutiff, as her administrator, succeeds to all her rights of property, and can maintain any proper action to enforce them. Caldwell, adm’r, v. Renfrew, 33 Vt. 213. Albee, adm’r, v. Cole, 39 Vt. 319. III. If th'e land, which - was the source of these mortgage notes, was conveyed to the wife, through her father, to avoid contribution to the support of his mother, and without consideration, it would be fraudulent and void as against those who sought to enforce such duty, yet it would be good between the parties. For the law will not permit a party to allege his own fraud, to avoid his contract, or the legal consequences of his act. IV. The request to charge that the acts of the husband had so far reduced the notes to possession as to defeat her right of survivorship, cannot be sustained. So long as any act remains to be done to bring the avails of choses in action to the beneficial use of the husband, the wife’s right of survivorship remains. Heirs of Holmes v. Adm’r of Holmes, 28 Vt. 765; Redfield on Wills, 2, 175-6. Judgment of the county court is affirmed.