Huntley v. Denny

THOMPSON, J. The orators claim that the probate court had no jurisdiction to settle and allow the administra [190] tion account of Harriet Mears Nesbit as executrix of the will of Addison P. Mears at the alleged settlement of April 17, 1857, and that if it had jurisdiction, such settlement was fraudulent as to the legatee, Alma Eliza Mears, now the oratrix, Alma E. Huntley. Addison P. Mears died in August,' 1849. He left three minor children, who were the oratrix, Alma E., born -November 4, 1846, thq defendant, Mary Ellen. Mears, now Dutton, born December 16, 1842, and a son, Hiram Addison Mears. The estate of Addison P. Mears consisted wholly of personal property. By his last will and testamept he bequeathed $140 to his son Hiram, and the residue of his estate to his wife Plarriet so long as she should remain his widow and no longer, and after she ceased, to be his widow, to his two daughters, Alma and Mary, equally. November 24, 1849, widow Harriet, as executrix of the will, presented her administration account to that date, and the same was allowed by the probate court for the district of Chittenden, in.which district the testator resided at the time of his decease. At the time of this settlement the legacy tp Hiram was not paid, nor was its payment, decreed by the court. The oratrix, Alma E., was then only a few days over three years of age, and the defendant, Mary E., was then still under seven years of age. -No decree for an allowance for the expenses of their support until they should attain the age of seven years was made at this-settlement. This settlement was not a final settlement of the administration of the estate by the executrix. It does not appear that a guardian had then been appointed for either-of the minors named in the will, so that notice of a. final settlement of administration could be given as .required by R. S., ch. 50, § 13, then in force. No partition or division could then be made without the appointment of a guardian to all minors interested in the estate to be divided. R< ? S., ch. 53, § 12. By the will there was an absolute bequest to the minor Hiram, and the two minor daughters had at least a conditional interest in the estate. R. S., ch. 53, § 1, required that before any partition or division of any estate among the heirs, devisees or legatees, an allowance should be made for the necessary expenses of the support of the children of the deceased under the age of seven years. After this settlement the estate remained in the hands of the executrix, to be further administered and disposed of according to law and the will of- the testator. : R. S., ch. 46, § 29, provided that the probate court might make such reasonable allowance as might be adjudged necessary for the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares should be assigned to them. At the settlement with the probate court, April- 17, 1857, the probate court had jurisdiction to settle and allow the administration account of the executrix, as it then did. It had jurisdiction to appoint a guardian to the minors interested in the estate, although they then resided in another district. R. S., ch. 47, § 19. The various statutes cited were all in force at the time of this settlement. So far as appears the items then allowed by the probate court for the support of the minors, Alma and Mary, were proper, and they were clearly within the scope of the statutes governing that subject. These statutes did not require that such allowance for the support of minors should be made in advance of the expenditure. Sawyer v. Sawyer, 28 Vt. 245. If the probate court adjudged the expenditure to be proper, the right of the executrix to be reimbursed was the same whether she had expended money belonging to herself or the specific funds of the estate. All the parties in interest were theri before the court [192] in person or by their lawful representative, and its judgment, allowing the final account of the executrix after her marriage had terminated her interest in the estate, is conclusive and binding upon all the parties, unless impeached and set aside for fraud or other legal cause. A party “who alleges fraud must clearly and distinctly prove the fraud he alleges. The onus firobandi is upon him to prove his case as it is alleged by his bill.” Kerr Fr. 382. As the master fails to find fraud on the part of the executrix in the settlement of April 17, 1857, the orators cannot recover under the allegations of their bill charging fraud in that respect. The executrix properly paid to Nesbit, the guardian of the oratrix, Alma E., the $100 found to be her share under the will, at this settlement, and she was thereby discharged from further liability as executrix to Alma E. for the same. This $100 was held by Nesbit as such guardian until about 1867, when he paid over the same to Harriet Mears, then Harriet Nesbit, for the oratrix, Alma E., and she received the same and retained it until her decease, knowing that it was the money which the guardian held in trust for the oratrix. She thus made herself trustee de son tort of the $100 for the oratrix, Alma E. While she held it as such constructive trustee, she was subject to the same rules and remedies as other trustees. Per. Tr., § 245. No reason is shown why she retained this money instead of paying it over to the oratrix, who had then attained her majority, nor is any fact disclosed by the master’s report which is any ground for excusing her from the payment of interest from the time it came into her hands. We think the orators on the facts reported have a valid, equitable claim against the estate of Harriet Pinney for this $100, and simple interest thereon from January 1, 1867. As the orator’s bill is not framed with a view to a recov [193] ery on this ground, it will have to be amended for that. purpose. The -pro forma decree below is reversed pro forma without costs to either party, and the cause is remanded with mandate directing the Court of Chancery to enter a decree for the orators in accordance with the foregoing views, tipon the proper amendment of the orators’ bill for that purpose. The terms upon which such amendment may be made and the question of costs below are left with the Chancellor.