Wilkinson's Admr. v. Wilkinson , 61 Vt. 409 ( 1889 )

The opinion of the court was delivered by

Powers, J".

The error, if any, of the County Court in refusing to recommit the report to the referee, is not revisable here.. It was a discretionary matter with that court to decide whether to recommit or not. Fuller v. Wright, 10 Vt. 512, and. many other reported cases.

The report is somewhat barren of facts relating to the sale of' the farming tools to the defendant. In determining the question whether there was a delivery and acceptance sufficient to satisfy the statute of frauds, the referee might draw such inferences as legitimately arose from the facts proved, and if the court earn see that the facts and inferences fairly deductible from them .would justify the referee’s conclusions, the judgment must be-affirmed.

It appears that the plaintiff was administrator of Heman Wilkinson, who died the owner of a farm with the farming tools in. question upon it and a ferry boat.

As such administrator he would have the legal possession of' the farm and tools during the settlement of the estate. While the widow and family, including the defendant, pending the settlement of the estate were residing upon the farm, carrying it on> and using said tools for that purpose, the legal' control- and possession of both farm and tools was in the plaintiff, precisely as-it had been in Heman before his death. The plaintiff’s evidence tended to show that on the 30th of November, 1885, in order to close up the estate, the plaintiff sold the farming tools to the-, defendant and in May, 1886, the widow’s homestead and dower-were set out and the balance of the estate distributed among the heirs. It is not affirm atively found that the administration was - closed, but it is fairly inferable that a decree of distribution over-the farm and tools had passed, as the referee says that since May,.. 1886, “ the land has been carried on in common by the widow,, defendant and other children.”

Since May, 1886, the plaintiff has had no actual nor constructive possession of the tools and the defendant, as one of the. occupants of the farm, has had the benefit at all events of the* use of the tools upon the farm. The set off of five acres to the -defendant in the distribution of his father’s estate is not decisive -of the defendant’s interest in the farm. If the widow and heirs -elected not to occupy their shares in severalty, but all to occupy the whole farm in common, carrying it on after the manner of tenants in common, each contributing as he was able to the joint expense ■of family support and all using the products of the farm in the •family living without .accountability as between themselves, they became to all legal intents as between themselves tenants in common, of the farm and of the farming tools used in carrying it on. "The referee therefore could properly say upon this state of facts -disclosed in the affidavits of counsel that the tools have been used by the defendant or for his benefit, which is the same thing.

We think the surrender of the legal’control of the farm and tools by the plaintiff as administrator to the defendant, his mother and other heirs by virtue of the decree, of distribution and the taking of the same and carrying on thereof by all in-•common was a sufficient delivery by the plaintiff and acceptance ¡by the defendant to make the sale of the tools in. November, 1885, enforceable under the statute of frauds as in such case the ■(possession of all is the possession of each and the usé by any is tthe use by all. ''