Connecticut Humane Society's Appeal From Probate

J. M. Hall, J.

Henry L. Sturdevant, the present appellant, and Olivia E. Sturdevant, were married March 3d, 1841, and lived together until March 6th, 1886, when said Olivia died, possessed of three parcels of real estate situated in the city of Bridgeport. She left a will, in which, after making certain legacies, she gave her husband absolutely one piece of real estate and the life use of all the rest of her property; and after providing for the payment of certain other legacies after his decease, made the Connecticut Humane Society, the present appellee, her residuary legatee. Said Henry L. Sturdevant was appointed administrator with the will annexed, and in due time presented his account as said administrator to the probate court for the district of Bridgeport for allowance.

The account contained, among other items, charges for money loaned by said H. L. Sturdevant to his wife, amounting to $1,462; taxes paid, amounting to $688.24; and also, an item of $4,000 principal and $300 interest on, the same, which was a note for that amount payable to the Bridgeport Orphan Asylum and executed by said H. L. Sturdevant and Olivia E. Sturdevant, his wife, and secured by a mortgage on a tract of land with the north half of a brick dwelling-house standing thereon, at the corner of LaFayette and Prospect streets in Bridgeport.

All these claims having been allowed against the estate'as the debts of said Olivia E. Sturdevant by the probate court, an appeal was taken to the Superior Court, where they were *473 all disallowed. The administrator claims error in this action of the court below.

The finding in the case effectually disposes of all items of the account except the $4,000 note and the interest thereon, as follows : — “ All the other items of said account disallowed by this court are for money paid by said appellee, either during the lifetime of said Olivia or since, in discharge of the debts contracted by him on his individual credit and account and for his benefit, and were in no sense or manner contracted by said Olivia or chargeable to or payable by her.” This clear and explicit finding leaves no opportunity for review in this court. It concludes the present appellant as to every question concerning all the items of the account except the $4,000 note and interest.

As to this latter» claim the finding is as follows : — “ The $4,000 note to the Bridgeport Orphan Asylum, which appears as one of the items charged to the estate, was made, executed and delivered by the said Henry L. Sturdevaut during the lifetime of his said wife, for his own benefit and for his own credit and account, so far forth as the same was upon personal credit, and not upon the credit of the real estate mortgaged to secure the same, which stood in the name of said Olivia, in consequence of which fact she joined with him in the execution of the note and mortgage. The items in the account claimed as interest paid on the $4,000 note were due from him individually.”

The present appellant claims that this part of the finding of the court is a conclusion of law, based upon other facts appearing in the case, and therefore is reviewable here. A brief examination of this branch of the case will test the accuracy of this claim.

Here was a note for $4,000 signed by the husband and wife. The husband as administrator upon his wife’s estate, charges the note and accrued interest on the same over to her estate. The note upon its face shows a joint liability of both husband and wife. The mortgage to secure the note was executed by both, upon property standing in the wife’s name, but not her sole and separate estate.

*474 Objection being made to the allowance of this claim against her estate, the question whether it was her debt or that of her husband becomes most clearly a question of fact, to be decided by the court upon competent evidence. The fact that the wife had signed the note with her husband, and even joined in a mortgage upon real estate standing in her own name, is by no means conclusive. It is not an infrequent occurrence that a wife, for the purpose of assisting her husband in a business enterprise or transaction of his own, joins in a note with him and mortgages her own property to secure it. She thus becomes a surety for him, and while she may thereby become obligated to third parties, the law will not, as between her husband and herself, raise a presumption that the note and mortgage were given to secure a liability incurred for her own private benefit or for the advantage of her estate. For which party such liability was incurred must be determined by the evidence and circumstances surrounding each particular case. Now in the present case the court below has found that the $4,000 note to the Bridgeport Orphan Asylum was executed and delivered during the lifetime of Mrs. Sturdevant, for the credit, benefit and account of said Henry L. Sturdevant, her husband. It is true that the trial judge, apparently yielding to the persistency of counsel, was induced to add to his positive finding a statement of certain evidence adduced before the court tending to show that the debt in question was a debt that should be equitably paid by the wife’s estate, but the court, after indulging counsel in this exceptional privilege, proceeded to demolish its entire effect by stating that “ all such facts were duly weighed and considered in reaching the conclusion of fact or the ultimate facts before set forth.” Such a finding cannot be called a conclusion of law. It is a clear conclusion of fact based upon evidence produced before the court.

This court has recently said that “in a case where the conclusions of the court were conclusions of law based upon facts, the facts maybe considered by this court upon appeal, but not so when the conclusions of the court below are con *475 elusions of fact from the evidence before it.”

Ward v. Ward, 59 Conn., 197 .

The court below stated certain evidence as requested by counsel. It did not pretend to state all the evidence before it and finds the evidence that it did state not true. There can be no pretense here, as in Hayden v. Allyn, 55 Conn., 289 , that “ the evidence had exhausted itself in producing the facts found.” There must have been other evidence before the court than that stated, which was weighed and considered by the court in reaching its ultimate conclusions.

The claim so strongly pressed by the present appellant, that the husband originally owned and deeded the real estate in question to his wife, and that the money raised upon the $4,000 note and mortgage given to the Bridgeport Orphan Asylum went indirectly to pay for the brick dwelling-house placed upon the land so conveyed to the wife, are not inconsistent with the conclusions of fact found by the Superior Court. Under the statute, even after the conveyance of the real estate to his wife, the husband would be entitled as trustee to all the income from the property. It is conceivable that the husband under such circumstances might borrow money to improve the property and thereby increase the income therefrom, by means of the joint note of himself and wife, and secure the same by mortgage of real estate standing in her name, and yet, as between himself and wife, become the real debtor. The mere fact that the husband erects buildings on his wife’s land in such circumstances creates no legal presumption in his favor as against her.

It is well settled that if a husband voluntarily makes such an improvement upon land of his wife in his occupation, the law will presume that he intended it for her benefit, and in the nature of a settlement upon her, and he cannot recover for the same.

Campion v. Cotton, 17 Ves., 272;

White v. Hildreth, 32 Verm., 265 ;

Brevard’s Exrs.

v. Jones, 50 Ala., 221 ;

Washburn v. Sproat, 16 Mass., 449 ; 1 Washburn’s Real Property, (3d ed.,) 318; Schouler’s Domestic Relations, § 203.

*476 The failure of the court to find as a fact any promise or agreement on the part of the wife to pay the debt in question or any part thereof, prevents the application in this case in favor of the husband of the equitable doctrine applied in the ease of Haussman v. Burnham, 59 Conn., 117 . The appellant has had his day in court, and the issues of fact decisive of his case have been found against him. We have no power to re-try those issues.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.