Corey v. McLean and Trustee , 100 Vt. 90 ( 1926 )

This is an action upon a promissory note, dated September 10, 1921, signed by the defendant, in which judgment was entered against the principal defendant in the court below, and after hearing upon the question of the liability of the trustee, the latter was ordered discharged, to which the plaintiff excepted.

The trial court found that the trustee was the wife of the principal defendant, and, with him, owned a farm as tenants by entirety; that, after the purchase of the farm, they jointly purchased certain machinery, and a team and some cows, for which they paid by money represented by earnings from the farm and earnings of Mrs. McLean (who was a nurse); that on October 1, 1921, the principal defendant transferred to the trustee all his interest in the property. The value of the personal property at the time of the transfer, was $1,000.

The only exception taken was to the judgment discharging the trustee. The plaintiff argues the evidence upon which the findings were based, but this question was not raised below, nor does any exception upon this ground appear in the record submitted, so the question is not for determination. CapitalGarage Co. v. Powell, 97 Vt. 204, 210, 211, 122 A. 423; Grapes v. Willoughby, 93 Vt. 458, 461, 108 A. 421.

From the facts found, it is apparent that the personal property, so far as it was paid for by the savings of the farm, was held by Mr. and Mrs. McLean as tenants by entirety. George v.Dutton's Estate, 94 Vt. 76, 78, 108 A. 515, 8 A.L.R. 1014. The further fact that the earnings of Mrs. McLean constituted part of the purchase price does not change the situation; but, if anything, goes to show that she had an interest in the property in her own right. This being so, the property was not attachable for the debts of the husband, and the plaintiff cannot complain of the transfer between the principal defendant and the trustee.Wolcott v. Hamilton, 61 Vt. 79, 85, 17 A. 39; Darling, Admr. v.Ricker, 68 Vt. 471, 473, 35 A. 376. There was no error in the ruling below.

Judgment affirmed.