Randall's Admr. v. Randall

The opinion of the court was delivered by TYLER, J. The material allegations in the bill are that the intestate, Joel-B. Randall, in January, 1878, became indebted to Abigail Andrus in the sum of $1000, which indebtedness was evidenced by his promissory note to her of that date; that in January,.1882, he conveyed all his estate to his heirs for no other consideration than love and affection ; that the conveyances were made without-making provision for the payment of this debt and were therefore void. The defendants in their answer admit that the $1000 debt was due'ifom Randall to Mrs. Andrus at the time the conveyances were made, and aver that in September, 1882, the intestate made ample provision for its payment by placing $1000 in the hands of Taylor and taking from him the written obligation which is set out in the master’s report, which was in substance a promise by Taylor to Randall that the former would pay the debt to Mrs. Andrus as she or her executor, administrator or assigns should call for it, which promise was in consideration of Randall’s loan of $1000 to him. The answer further avers that Mrs. Andrus had notice of the arrangement and as [425] seated to it, that Taylor personally promised that he would pay her the debt as she required it, and that he subsequently paid her several sums amounting to $110 ; that Randall’s relation to the-note after placing the funds in Taylor’s hands was that of a surety, and that he was released as such'surety by the omission of the administrator and representatives of Mrs. Andrus to proceed against Taylor for the collection of the note. The issues made by the pleadings were whether or not the intestate disposed of his property without making ample provision for the payment of this debt,' and if not, whether the debt was still subsisting. It is alleged in the bill that he made no such provision : the answer meets this allegation with the averment that Taylor was, by a tripartite agreement, substituted for the in-testate as debtor to Mrs. Andrus, and that the judgment of the Probate Court had no validity. The former question was not a collateral matter. It was the “ cause of action in issue and on trial.” It is apparent that the main question of fact in controversy before the master was as to the adequacy of this agreement as a provision for the payment of the Andrus debt. To sustain the defendants’ side of this issue Taylor was offered as a witness go testify that Mrs. Andrus assented to the arrangement and agreed to accept him as the payor of the note. We think he was excluded by section 1002, R. L. Insurance Co. v. Wells, 53 Vt. 14, is full authority on this question. Mrs. Barbour was an annuitant by a provision in the deeds from her first husband, the intestate, to his two sons, and was interested to have the conveyances upheld. She was therefore a proper and necessary party defendant to the suit. She was offered as a witness to testify to a conversation which it was claimed she had with Mrs. Andrus in which the latter stated that she was satisfied with the arrangement that had been made and that she should look to Taylor and not to Randall for payment. The offered evidence came within none of the exceptions to section 1003, R. L., and was excluded by the general inhibition of [426] that section, that when an executor or administrator is a party the other party shall not be permitted to testify in his own favor. It seems unnecessary to review the cases in which this section has been considered and construed; the leading cases are cited on the briefs of counsel. Upon the evidence that was admitted by the master he was unable to find the novation claimed by the defendants. Piad the excluded evidence been received, query, whether it would have availed them, the evidence not tending to show that the original payor was released. Buchanan v. Paddleford, 43 Vt. 64. As to the other question raised we think the decision of the court in Riley v. McInlear's Estate, 61 Vt. 254, is full authority that the judgment of the Probate Court, in the circumstances of this case, is evidence of a valid subsisting debt. The pro forma decree reversed and cause remanded with mandate that there be a decree for the orator according to the prayer of the bill unless the defendants, within a time to be fixed by the Court of Chancery, pay to the orator the sum remaining due upon said note with costs.