Howe v. Chesley

The opinion of the court was delivered by Redeield, J. This is a bill to redeem, and comes'up on the report of the special master. The facts appear in the report. In consideration of the conveyance of the home farm of Mrs. Bradley to Mrs. Howe, the oratrix, her husband gave his notes of $1,000 to Mrs. Bradley; .and for a like sum to each of the defendants, and secured them, by a mortgage of the premises. The note to Mrs. Bradley and the interest of the other two notes were to be paid to the orators, and constitute a fund in the orators’ hands for the support of Mrs. Bradley, who was afflicted with a fatal disease. Some time afterwards, on representation that such fund, or income, was inadequate for the continued care and support of Mrs. Bradley, the defendants, who are daughters of-Mrs. Bradley, and sisters of the oratrix, promised the orators that if they would continue to take good care of their mother, the excess of expenditure in her support, above the income provided for that purpose, should constitute a payment, in equal shares, of the principal of their notes. I. Tt is true that the promise is not binding, as within the Statute of Frauds. “The defendants have not insisted upon the statute in their answer, or in the pleading. Wo understand this is necessary, otherwise the statute is waived.” Adams v. Patrick, 30 Vt. 519. “ When once proved, without objection to the manner of proof, it was a valid contract.” Strong v. Dedds, 47 Vt. 348; Montgomery v. Edwards, 46 Vt. 151. But this [732] was an executed agreement, and when tlie services were rendered, it operated as a payment. II. It is claimed that as one of the defendants was a feme covert at the time the promise was made, it'is for that reason, without legal effect; but these services, when rendered, operated as a 'payment, of the debt which the orators owed the defendant, to the extent of the excess above the amount of Mrs. Bradley’s ngte. The defendant, though a married woman, had tire, right to receive payment upon her note in such manner and kind as she elected, whether in money, grain, fruit or in food, nursing, and care of her mother during her last sickness; and when payment is made as agreed, it is a payment pro tanto of the note. And if this were not so, we think, under the circumstances of this case, such promise would be binding in equity upon a married woman, and enforceable against her separate estate. It was in the discharge of a duty she owed her mother, and therefore a benefit to herself. But the more important question is the quality and effect of the judgment of the Probate Court, fixing the amount and value of orators’ services for Mrs. Bradley. The majority of the court think that the defendants are strangers to the judgment, and not concluded lay it; and at most the judgment is only prima facie evidence of the debt, and that the case stands alone upon the facts found by the special master. And my own impressions in the case are not important. But the defendants were children and heirs of Mrs. Bradley; and their promise to pay the indebtedness of their mother beyond what she had, or should have assets to pay, made them generally and specially interested in the estate ; and their promise, by natural intendment, had reference to the only forum known to the law, where debts and assets of an estate could be ascertained. Their relation to the estate was such, that if not satisfied with the judgment of the Probate Court they had the right of aypeal. They had notice of the proceedings and were present in court, as witnesses. The promise was to pay all the orators’ debt, which the assets of Mrs. Bradley’s estate did not pay. The amount of [733] such assets and the conversion of them into money in the Probate Court, was in the nature of a proceeding in rem, and binding on these defendants, and conclusive. If the Probate Court' had determined the assets of Mrs. Bradley were sufficient to pay the orators’ claim, that judgment would have been a full defence for the defendants against the orators’ claim ; and as the defendants’ promise had reference to Mrs. Bradley’s living the residue of life, including her last sickness and death, it seemed to me the parties contemplated the .adjustment of her assets, and the expense of her last days, and last sickness, after her death,, in the only way, and by the only tribunal known to the law, which is the course the orators have pursued. Parkhurst v. Sumner, 23 Vt. 538; Chamberlain v. Godfrey et al. 36 Vt. 380. See also Robbins v. Chicago, 4 Wall. 652. But I do not care to dwell on my personal views, further than to state that this part of the ruling was by a? divided court. The master finds that “ the orator’s care and services during that time (from July 27, 1874 to May 17, 1875) were fairly worth $100,” and “ that it wonld be equitable for' him to receive pay ” for them_ We think the orators should not be barred the recovery fur what their services were “fairly worth,” from anything that appears in the relation of the parties, and that sum should be allowed the orator. We think also that the orators should recover all taxable cost, that accrued from the contested claim of defendant’s promise to pay a portion of the expense of Mrs. Bradley’s care and support, on which contested claim the orators prevail; and such portion of the master’s fees and expenses, as the chancellor shall adjudge is a fair proportion of the time and expense that accrued in the examination of that issue, and no further cost allowed either party ; and that the orators have the right to redeem, by paying the balance of defendant’s notes, as shall appear from the master’s report, with the modification herein made. The decree is reversed, and cause remanded.