Atkins's Estate v. Atkins's Estate

Munson, J. This is an appeal from the decision of the commissioners on the estate of Hiram Atkins, disallowing a claim presented by the estate of Julia Atkins. The decedents were husband and wife. The claim is for the amount the husband was to pay the wife for certain. [272] property conveyed him by her procurement. Such a claim is recoverable in this proceeding. Spaulding v. Warner's Est., 52 Vt. 29; Purdy v. Purdy's Est., 67 Vt. 50. Henry M. Kimball was a competent witness in support of the claim. He was not within the provision which excludes the testimony of the survivor of contracting parties. He was in no sense a party to the contract in issue and on trial. His only part in the transaction from which the claim arose was to convey the property as directed. Nor was he within the purpose and meaning of the provision which excludes the opposite party from testifying against an administrator. There was no inequality between the parties contesting this suit. Both the original parties to the contract were dead, and both were represented by administrators. See V. S. 1237, 1238. The court below has found that the expressed purpose of Mrs. Atkins to give the property to her husband was not carried out, and that she died leaving it as her own in his hands. There was evidence tending to support this finding, and it is conclusive. Jtidgment affirmed.