Wilson v. Bates

Distribution of intestate feme coverts choses in action. Reducing of them to possession by her husband. Allowance to administrator for expenditures in unsuccessful lawsuits. The choses in action of a feme covert, in this state, who dies intestate and without issue, which had not been reduced to possession by her husband, are to be distributed to her collateral heirs, to whom her real estate, if she had any, would descend; — and not to her husband. The feet that such choses in action were all the property that the wife possessed, and that she, before the marriage, so informed her husband, and that he, at her desire, procured her wedding dress and other wedding preparations, and was at the whole expense of furnishing the house, and that, after the marriage, she handed the notes to her husband, who took them and kept them with his other papers, do not constitute a reducing of them to the possession of the husband, or give him any valid lien upon them. An administrator should be allowed for his expenditures in a law-suit in which he was unsuccessful, if he acted in good faith, and with reasonable prudence; — and whether he did so or not, must ordinarily depend upon the facts in each particular case. In the present case, the administrator allowed for such expenditures, it being found that he acted in good faith, and under the advice of suitable counsel, believing he had the right of the case.

Appeal from an order of the probate court allowing the account of tbe appellee, as administrator, in which account was included the account of George R. Holmes, a former administrator; and decreeing the residue of the estate, remaining after the allowance of said account, to the said George R. Holmes. Upon trial in the county court, December Term, 1855,— Poland, J., presiding, — the following facts appeared. The appellants were a brother and brother-in-law, and the said George R. Holmes was the husband of the intestate, Harriet N. Holmes, whose maiden name was Harriet N. Wilson. Prior to her marriage she held some notes against her brother, Chauncy Wilson, payable to herself, given for her share in her father’s estate. These notes remained unpaid in the hands of her husband at the time of her decease. After her death, her brother and sister, (she having left no children,) applied to the probate court, in Orleans county, to appoint David M. Camp administrator, and opposed the appointment of Holmes, because he lived out of the state; • — but the probate court appointed Holmes. He inventoried the above mentioned notes as the property of the estate, and, as administrator, commenced a suit npon them against said Wilson. While this suit was pending, the heirs applied to the probate court to remove him, as administrator, and the probate court did so. He appealed from this order of the probate court to the county court, when the order was affirmed; and he then carried the case to the supreme court, on exceptions, and the judgment of the county court was affirmed. That portion of the administrator’s account which was objected to was for the costs and expenses, and counsel fees of the said Holmes, in litigating said appeal from the probate court. The court found that Holmes, in all said proceedings, acted under the advice of suitable counsel, and in good faith, believing himself legally entitled to administration. Bates was appointed administrator, npon the removal of Holmes, and prosecuted the suit commenced against Wilson, on said notes, to final judgment, and collected the amount; — and, the money thus collected, was the whole estate of Mrs. Holmes in the hands of the administrator. It was proved by said Holmes, though objected to by the heirs, that before his marriage, the said Harriet N. informed him that her only means were these notes against her brother, who was not then ready to pay them; and that he, at her desire, procured her wedding dress, and other wedding preparations, and was at the whole expense of furnishing the house; and that, after their marriage, Mrs. Holmes handed the notes to her husband, and requested him to keep them, and he did keep them, with his other papers, till after her death, and until he was appointed administrator, as aforesaid, when he placed them in the hands of his attorney for collection. It was also proved that Mrs. Holmes was sick for some three months before her death, and that her husband was at a great deal of expense for nursing and medical attendance for her during that period. Upon these facts the court adjudged, that the decree of the probate court, allowing the administrator’s account, be affirmed; but that the decree of the probate court ordering the residue of the estate in the hands of the administrator to be paid to the said George R. Holmes, be reversed, and that the same be decreed to be distributed among the legal heirs of Mrs. Holmes. To this decision, as to the allowance of the administrator’s account, the appellants excepted; — and, as to the reversal of the residue of the decree of the probate court, the appellee excepted. The husband is entitled to the choses in action of the wife on decease of the wife; 26 Yt. 336; Story on Promissory Notes 88 ; Whitaker v. Whitaker, 6 John. 116; 2 Kent’s Com. 420; 1 Peere Williams 380-382; Comp. Stat. 365; Reeve’s Dom. Rel, 22. The husband will be deemed to have taken the choses in action by purchase, having made advances, at the wife’s request, before marriage, and the notes passed into his hands in consideration thereof; see Reeve’s D. R. p. 26. The defendant’s expenditures, as administrator, having - been made 'in good faith, and by the advice of counsel, his account was properly allowed; Woods, Admr. of Eame’s Estate v. Creditors of Eame’s Estate, 4 Yt. 256. Under our statute of distributions, the property of intestates, leaving no issue, or father, goes to the mother, brothers and sisters. Comp. Stat. chap. 55, § 1. Words denoting masculine gender extend to females. Comp. Stat. chap. 4, § 1. The statute undoubtedly applies to females intestate, as well as males, and leaves no room for doubt of the propriety of the decision of the court below, The items of costs and expenses, counsel fees, &c., incurred by Holmes, after his removal from the office of administrator by the probate court, do not constitute a proper charge upon the estate. A large share of this expensé accrued in consequence of an appeal taken by Holmes, from the decree of the probate court, removing him as administrator. The county court decided against him, and likewise the supreme court, and that, too, upon the ground that the decree was not the subject of error, but was within the final jurisdiction of the probate court. In this decree, Holmes should have acquiesced, but he appealed for his own benefit, all the while claiming to own the estate. His argument in the supreme court, shows this to have been his claim; Holmes v, Est. of Holmes, 26 Yt. 540, The suit was prosecuted by Holmes, without just cause; Homes’ Ádmr. v. Creditors, 4 Vt. 258; Comp. Stat. chap. 53, § 14. The costs are not such as were paid out to the adverse party, the estate, as he has paid none, but the costs of his counsel, &c. The question cannot be settled in this form, as it only arises in the settlement of Holmes’ account as administrator, not in settling the account of Hates, the present administrator; Comp. Stat. chap. 53, § 14.