Wilson v. Edmonds

Eastman, J.

According to our apprehension of the matters in controversy in this action, we must, in order properly to understand them, first look to the will of Peter Wilson. This will was made May 12, 1842. To it were added two codicils, the last of which was dated April 4, 1843. Peter died in the following November. By this will and codicils his property would appear to consist chiefly of his homestead No. 14, Court street, Portsmouth; the Appleton house No. 8, Court street; *541 the Pike house No. 5, Chestnut street; land purchased of Samuel Hale on Christian Shore; two aqueduct shares and some personal property.

Specific legacies in money were given as follows: To his wife, Betsy Wilson, $500; to Joseph S. Ayers, and Edmonds, the defendant, $50 each; also $50 apiece to Ayers and Edmonds out of the Hale property, should that remain unsold at the decease of Mrs. Wilson and not be needed to pay his debts and hers.

There is then given to his wife the use of the houses Nos. 14 and 8, Court street, and No. 5, Chestnut street, during her natural life; and in the first codicil the Hale land is directed to be sold and the avails to be paid over to her, toward her support. The second codicil makes a provision in regard to the Hale land, as before stated.

The will also provided that if the income of the real and personal estate should be insufficient for his wife’s comfortable support, she was at liberty to dispose of any part of the same for her support. This provision has an important bearing upon the merits of the whole case.

After the decease of his wife, one half of the house No. 14, Court street, was to go to James Wilson, the plaintiff’s intestate, upon his paying out certain legacies. There was also given to James Wilson and his children the house No. 8, Court street, after Edmonds had had one year’s rent of one half of the same next succeeding the decease of Mrs. Wilson, and Ayers one year’s rent of the other half. James Wilson was likewise residuary legatee of one third of the personal property left after the payment of debts and legacies.

If the aqueduct shares remained unsold at Mrs. Wilson’s decease, one was given to James Wilson and the other to Mrs. Tuckerman and others. Mrs. Wilson was appointed executrix of the will, and in case of her decease, James Wilson, Joseph S. Ayers and Joseph M. Edmonds.

Mrs. Wilson as executrix had an inventory taken of the estate of her husband. The real estate was appraised at $3300. The personal property at $1034.50, as follows : Two aqueduct shares, *542 $420; money on deposit in the Savings Bank, $400, and furniture, $214.50.

Mrs. Wilson died in July, 1846, before settling any account as executrix, and James Wilson died in August following. According to the provisions of Peter’s will, Edmonds was appointed executor de lords non — James Wilson, one of the three designated by the will, being dead, and Ayers, the other, declining to act.

Edmonds settled the account of Mrs. Wilson as executrix of her husband’s will, and therein credited the estate with the amount of the personal property, appraised $1084.50, and $212, collected on note of Goodwin & Coues, making $1246.50. He then charged as follows:

Last sickness and funeral expenses, . . $207.32

Payments to sundry creditors,.....341.26

Paid appraisers and advertising,.....9.17

Legacy to J. S. Ayer,.......50.00

“ “ Edmonds, the defendant, .... 50.00

“ “ the executrix herself, .... 500.00

And commissions (no other services being charged,)...........62.33

$1220.08

Leaving a balance of $26.42 due the estate.

It will be borne in mind that after the death of Mrs. Wilson, the house No. 8, Court street, was to be occupied one year by Edmonds and Ayers, and then to become the property of James Wilson and his children. The Chestnut street house was to be Mrs. Tuckerman’s, and the house No. 14 was to be divided between James Wilson and others ; James to have one half. Consequently the only property to be appraised of the estate of Peter after the decease of his wife, was the personal property then left, and the house No. 14, Court street. This was done by Edmonds. The house was sold for $1189, deducting expenses, and this, together with the balance of $26.42 found due the estate on the settlement of the account of the executrix, and a pew valued at $50, comprised the whole inventory, being $1265.42.

*543 In settling his account as executor de lords wow, Edmonds credited the estate with the amount of the inventory. He first charged it with some small items of expense, amounting to $16.67, and then to the net proceeds of the house No. 14, Court street, paid out according to the will as follows: one fourth to P. Wilson Lindsey, one fourth to Hannah Tuckerman, and one half, being $594.50, to James Wilson. A few dollars in commissions balanced the account. These accounts and returns were sworn to by Edmonds.

This statement brings matters down in the order of time to the Commencement of the suit by John 0. Wilson, the brother and administrator of James Wilson, against Edmonds. The auditor to whom the case was committed has found due the plaintiff’s intestate, James Wilson, for rent of house No. 8, Court street, for one year, commencing July, 1847, $180. Mrs. Wilson, the wife of Peter, was entitled by will to the rents up to the time of her decease, which took place in July, 1846 ; Edmonds and Ayers were also by the will entitled to one year’s rent next after her decease, which would bring it up to July, 1847, the time at which the auditor dates the commencement of the charge of rent against Edmonds. The auditor also finds due the plaintiff the further sum of $594.50, for net proceeds of one half of house No. 14, Court street, which it seems had not been paid by Edmonds. He then adds interest so as to make his whole finding for the plaintiff to be $819.08. To this finding neither the plaintiff nor defendant makes any objection, so that the controversy between them relates solely to the set-off. This set-off may be well classified under four heads, as has been done in the argument. First, the repairs, insurance, and taxes connected with the house No. 8, Court street; second, the aqueduct shares; third, the amount expended for the support, burial, &c., of Mrs. Wilson, widow of Peter ; and fourth, the promissory notes running to the estate of Peter. These several matters we will consider in their order.

It appears by the report of the auditor that the amount expended for repairs and improvements on the house No. 8, Court *544 street, during the year 1848-4, prior to September, 1844, when the conversation took place between James Wilson and Edmonds, was $239.59. From that time to the death of James Wilson, in 1846, the amount expended was $28.88, and from the death of James Wilson to the first day of July, 1848, the time when Edmonds left the house, was $144.72. The expenses of the insurance and premium assessments amounted to $11.25, and the taxes for the year 1848 were $11.34; and that there was also paid $4.00 for aqueduct to June, 1848.

It is contended that the repairs made prior to the death of Mrs. Wilson cannot be allowed, because Edmonds has placed upon the probate records, in settling the account of Betsy Wilson, as executrix of Peter Wilson, a statement that she paid all the taxes and incidental expenses. What these incidental expenses were does not appear. They were not brought into the account of the executrix, and were not passed upon by the probate court. If they had been, the decision would have been final unless an appeal had been taken from the decree of that court. The jurisdiction of a judge of probate is, in general, sole and ’exclusive ; and his decisions, regularly made, of, matters within his jurisdiction, are, unless an appeal is interposed, conclusive against all the world. Such is the language of Chief Justice Richardson, in Bryant v. Allen, 6 N. H. Rep. 116 . But as to matters connected with the settlement of an estate, and which might be investigated by the court, but are not, the decision can have no binding effect. Such was the nature of the matters referred to in the memorandum placed upon this account. The taxes and incidental expenses might have been brought in, a debtor and credit account rendered, and a decree might have been passed upon it. But such was not the course taken, and the memorandum entered upon the account was a mere statement in regard to the matters, and formed no part of the decree of the court. But even if they did, we could not, from such a general statement, infer that the incidental expenses spoken of embrace the repairs and improvements made by Edmonds, since they would have absorbed a large part of the widow’s income.

*545 It is said also that Mrs. Wilson, being tenant for life, was bound to keep the premises in repair, and that these charges could not properly be made on that account. It is true that a tenant for life is required to keep the buildings in which he may have a life estate from going to decay, by using ordinary care ; but he is not required to expend any extraordinary sums. 4 Kent’s Com. 76; Co. Litt. 53, a, b; 2 Black. Com. 281. It is quite evident from the report of the auditor that the sums expended by Edmonds were of the latter class, and such as a tenant for life would not be bound in law to make. But it will be recollected that Mrs. Wilson had far greater rights in this property than those of a tenant for life, and she was not therefore to be governed by the law in such cases. She had not only the use of the property during life, but the power to sell it, if necessary for her support; and should she find herself compelled to make large expenditures in repairing some of the buildings, she would be obliged to sell other of them to defray the bills. Such were the rights of Mrs. Wilson in regard to this property, and such was her situation respecting it, that we do not see any thing in the probate records that can seriously conflict with the allowance of this claim.

It is further contended, that the promise to pay for the repairs made prior to September, 1844, amounting to $239.59, was without consideration. But we do not so regard it. These repairs and improvements were made upon the house No. 8, Court street, which was to become the property of James Wilson and his children, at the decease of his grandmother, Peter Wilson’s widow; and James was directly interested, not only in having the repairs made and the house kept from going to decay, but that they should be paid in such a manner as not to diminish the income of Mrs. Wilson; since, if they did, the property might have to be sold and James thereby lose the house.

Regularly, the auditor, instead of reporting the evidence showing an agreement to pay for these repairs, and referring the matter to the court, should have stated distinctly whether he allowed these items or not; and had a motion been made to that effect, the report might have been recommitted for such distinct *546 finding. But that course was not taken, and the report of the auditor was read to the jury as evidence, without objection by either party, and without exception to its competency as such. Whatever, then, is stated in it we may consider in the same manner as though it were before as upon an agreed statement of facts, or upon a case drawn, where the verdict is taken by consent, and where the evidence is detailed at length. Bartlett v. Trefethen, 14 N. H. Rep. 427 . In the latter class of cases the court examine the evidence, and if they find that it is competent to sustain the verdict, judgment is entered accordingly. The counsel upon both sides have treated the case in this manner, and have argued all the several matters returned in the report, as though they had been laid before the jury directly, without the intervention of the auditor’s report. And we think the evidence was competent from which to find an original request to make the repairs, and a binding promise to pay. A promise made upon a past and executed consideration is in general not binding. Hunt v. Bate, Dyer’s Rep. 272; Bartholomew v. Jackson, 20 Johns. Rep. 28; Comyn on Contracts 14. But when the labor performed or the services rendered are beneficial to the promisor, and there is nothing in the evidence negativing a request, a jury may, from the circumstances of the case, infer a request. Hicks v. Burhans, 10 Johns. Rep. 243; Oatfield v. Waring, 14 Johns. 198 ; Doty v. Wilson, 14 Johns. 378 ; James v. Bixby, 11 Mass. Rep. 37 ; 1 Saund. 264, n. 1; Cro. El. 94. The evidence here was competent from which to find a request. Wilson examined the repairs and improvements that had been made, and expressed his satisfaction with the same, &c. The principal doubt that rests upon the matter arises out of the expression that “ he must take his pay out of the rent.” But it appears to us that he could not have intended that Edmonds should take his pay out of the three accruing rents, because the old lady was at that time entitled to them and could use them as she pleased, and neither Wilson nor Edmonds had any control over them; and because, also, that a diversion of the rents to those purposes would probably require a sale of other real estate *547 for her support, as before suggested. In one year after the decease of Mrs. Wilson the house would be his, and the rent of course his, and that rent he could promise to Edmonds for the repairs. Such would seem to be the only reasonable intention; and the exceptions to the allowance of this item of the repairs must be overruled. So also must those to the item of $28.88, the sum accruing after the agreement in September and before the death of James Wilson. Wilson “requested Edmonds to continue to make such repairs and improvements as he deemed necessary,” and this sum was expended in furtherance of that request.

The plaintiff’s next position is, that the amount expended for repairs made after the death of James Wilson, being $144.72, cannot be recovered, because, Edmonds being an agent merely, the authority to make the repairs died with the principal. This position is in effect correct. The general doctrine that a delegated authority ceases to exist on the death of the principal, is well established; and an agreement or contract, to be binding upon an estate, must be such in its inception as to reach beyond the decease of the contracting party, in case of his death. The consideration must be of that nature and the intention of parlies such that the death of either can make no difference in its legal effect or operation, or in its continuation until perfected. Such we do not regard the agreement between Edmonds and Wilson to have been. It was an authority to make the repairs during the will or life of Wilson. It could not, we think, have been contemplated by him, that Edmonds should be at liberty to make repairs as he might please after Wilson’s decease. While Wilson lived he could see what was transpiring and to what extent Edmonds was proceeding, and this might be one reason for holding him bound to pay for the repairs that were made during his life. Upon the facts stated in the case it was quite as far as the court could go, to hold Wilson liable for the repairs made prior to his decease. This item, then, of $144.72, must be stricken from the amount of the verdict.

The small amount paid for taxes and insurance in 1848, during *548 the year that Edmonds was accountable to the plaintiff for rent— which the auditor has charged against him as $180 — cannot come under the agreement of Wilson with Edmonds. But they are items for which the property was liable and which the administrator would be bound to pay; and as the auditor has found them proper matters of set-off upon the evidence before him, we are not inclined to interfere with his finding in that respect.

The amount paid for aqueduct, being only $4, there was no authority to charge the estate with. It was a matter of personal convenience to the defendant, for which he should pay, and not the estate.

We come now to the second division of the set-off, the aqueduct shares. It is objected that the amount paid to Mrs. Tuckerman and others, six in number, for what one of the aqueduct shares sold, being $225, should not be allowed.

The provision of the will in regard to these shares is as follows: If after Mrs. Wilson’s decease, the aqueduct shares remain unsold by her, then I give and bequeath one share unto my grandson, James Wilson, and the other to Hannah Tuckerman and five others, naming them. Whether the shares were actually sold before her decease does not distinctly appear. They were taken by her at the appraisal, in the settlement by Edmonds of her account as executrix of her husband’s will. If not taken in that way, the estate would have been found in debt to her, and to make up the deficit other property of the estate would have been ordered to be sold. But the amount of one of the shares was paid out by Edmonds to the individuals named in the will, and charged to Wilson, in pursuance of his directions in 1844; and if he, as residuary legatee, and as interested largely in the remainder of the estate, saw fit to direct that the wishes of his grandfather should, be carried into effect when it impaired the amount to be received by him, we discover no reason why his administrator should not be held to make good his directions in this respect.

The next objection to the set-off, is to the allowance of the sum of $147.06, charged by the defendant for the support, *549 burial, &c., of Mrs. Wilson, beyond the amount received from her estate, or the estate of Peter Wilson. It is contended that this cannot be allowed because it is not proved, but on the contrary, is disproved and contradicted by the probate records. ' But the auditor, who had the evidence before him and the probate records also, finds that it is proved. The records do not contradict the charge. They have a tendency to disprove it, but there is nothing in them by which the defendant is estopped from setting up the claim, and the evidence produced appears to have satisfied the auditor of its justness.

The only remaining matter in controversy is that of the notes, amounting to $300, which were taken as running to the estate of Peter Wilson. With regard to them, if they could not be used as evidence of a debt, and of money advanced by Edmonds to Wilson, yet in equity they would be a fair subject of set-off against the sum of $594.50, which was a legacy to Wilson arising by the will of Peter and out of his estate. But independent of the notes, even were they not used as evidence, there is sufficient found by the auditor to show that Wilson had $300 of Edmonds, and that it has never been paid.

We place much confidence in the judgment of the intelligent and experienced auditor who sat in this case ; and when we find him saying that the expense of the repairs and improvements on the house No. 8, Court street, was reasonably charged ; that the services charged and the money charged as expended, were performed and expended as charged in the repairs and improvements of that house ; that the money charged as expended for the support and burial of Peter Wilson’s widow, beyond the amount received from the estate of Peter Wilson, or the estate of his widow, was paid as charged; that on the 26th of September, 1844, Edmonds advanced $200 to James Wilson and took his note for that sum, payable to the estate of Peter Wilson, or order, on demand, with interest, and afterward advanced him another sum of $100, and took his note for the same, payable to the estate, on demand, with interest; and when we discover nothing that stands seriously in the way of the general matters *550 of his finding, we are the more ready to sustain the verdict of the jury in its principal features.

We might add that many of these items of set-off could probably be obtained by the defendant, on a re-settlement of the several accounts in the probate court, and by a suit upon the notes in behalf of the estate of Peter Wilson ; so that a disallowance of them here would only protract the litigation.

According to the provision made in the transfer of the case, judgment must be entered for the defendant for the balance of his set-off and interest, after deducting the items of $4, and of |144.72.

Judgment for the defendant.