Southworth v. Kimball , 58 Vt. 337 ( 1885 )

The opinion of the court was delivered by

Ross, J.

The defendant has demurred to the orator’s bill of complaint. The contention is, whether the facts, admitted by the demurrer, entitle the orator to relief in a court of equity. The controlling facts set forth in the bill are, that in 1868, the orator took two U. S. gold-bearing bonds of $100 each from the intestate, who was then a married woman, to exchange for other like bonds having a longer time to run; that he did so exchange them, and on the 5th of August, 1868, by mistake, delivered to her three, instead of two, such bonds; that she remained a married woman until her decease in 1868, and that he has never had the one hundred dellar bond, so delivered by mistake, returned to him, or any payment, as interest therefor. He prays, that the defendant, who is administrator on her estate, may be decreed to pay him the value thereof with interest "out of funds belonging to her estate. There is no affirmative allegation, that the intestate left any estate, nor, if so, that it is sufficient to pay all claims against it in full, nor that he ever demanded said bond of the intestate, nor of the former, or present administrator on her estate, nor that she, or they, have converted said bond into money; nor of the time when he first discovered his mistake, except it was after the death of the intestate, nor that she was ever made aware of it in her lifetime, nor that the bonds were her sole and separate property, nor, whether commissioners -have ever been appointed on her estate. It was held by this court in Brown v. Sumner, 31 Vt. 673, that a debt resting upon the promise of a married woman for its foundation (in that case, it was a promissory note), could not be proved and enforced through commissioners on her estate, such promise being void. But in the case at bar, no promise is alleged, and none could be implied from the facts and circumstances stated in the bill. It does not appear that she ever used the bond; she may have kept it as the property of, and for the orator. It follows logically, that, against a person incapable of making a valid promise, the law would not raise an implied promise or undertaking. Curtis v. Engel, 2 Sandf. Ch. 287; Perry Trusts, s. 659; Murray v. Barlee, 4 Sim. 83. To charge the separate estate of a married woman it is not enough to show her promise, express or implied, to pay the debt. It must be shown, that the debt for the payment of which the promise was made went to the benefit of her separate estate, or for her benefit on the credit of such estate. Sargeant v. French, 51 Vt. 381.

If it be admitted, which is not alleged, that the bond went to the benefit of the intestate, there is no allegation •that it went for the benefit of her separate estate, or that she left any sole and. separate estate to be charged' in equity with its payment. It is not alleged that any interest on the bon d was paid to her in her lifetime. The facts of the bill negative that the bond was delivered on the credit of her separate estate. If it should be held, that the orator’s remedy is to have her estate in the hands of the administrator charged with the payment, the bill is lacking in the proper allegations to raise such equity.

But, we think, that, if the orator has any remedy he has an adequate remedy at law. If the bond was converted by the wife during her lifetime, the tort did not at common law survive. Hambly v. Trott, Cowper. 371. Neither could the tort be satisfied out of her separate property, if any she had; because there is no contract, express or implied, which shows an intention to charge her separate estate; nor can propei’ty delivered by mistake be said to be delivered to a married woman, on the faith, or credit of her separate estate or for its benefit, which is necessary for equity to charge the estate with its payment. Dale v. Robinson, 51 Vt. 20. By our statute — s. 2133 — trover for personal estate survives. If the intestate had converted the bond to her own use during her lifetime, by converting it to money, and adding it to her separate estate, the orator could have maintained trover against her and her husband, and could have taken the execution issued on such judgment against the property of either. If she had simply detained it, in specie, the conversion would have been to the use of the husband, for which he alone would he liable, as held in Dohorty v. Madgett, ante, 323, and in Shaw, adm’r, v. Hallihan, 46 Vt. 389. If the conversion was of such a nature that she would be liable with her husband, so that her property could be taken on the execution, we do not see any legal objection against proving it against her estate before commissioners, if they have been appointed, and if no commissioners have been appointed, against its enforcement by a suit at law against the administrator, unless the claim has become barred by the appointment of commissioners and a failure to prove the claim before them; or by the Statute of Limitations, by failure to sue the administrator seasonably.

If the bond came intact into the hands of the administrator, it being the property of the orator, and never converted by any act of the intestate, the orator had the right to pursue the administrator at law, personally, for the bond, or its conversion.

The bill is lacking, in substance necessary to furnish the orator with equitable relief; and, we think, from the facts not alleged, which probably might be brought into the bill, by way of amendment, that the orator has adequate remedy at law for the money, if any; either against the estate of tlié intestate, against her husband, or against the administrator personally, unless he has tort, and suffered his rights to become barred, by non-action, or neglect.

The decree of the Court of Chancery dismissing the bill is affirmed and the cause remanded.