Atkins v. Atkins

45 A. 1037, 71 Vt. 422, 1899 Vt. LEXIS 209

• Court: Supreme Court of Vermont
• Decided: July 21, 1899
• Status: Published

Opinion

Thompson, J.

This case does not involve the settlement of the estate of Hiram Atkins, deceased, now pending in the probate court. Whatever maybe the rights of the oratrix in the settlement of that estate, it is left for that court to determine.

The right of the oratrix to the $5000 received on policy No. 156,000 issued by the New York Life Insurance Company and to $684.94 received on policy No. 4967 issued by the National Life Insurance Company, and the manner in which the defendants should account therefor, was determined when this case was before this court as reported in 70 Yt. 565.

The only question for decision is as to how payments shall be applied which were made by the defendants to the oratrix, without any direction as to their application, and which have not been applied. From the time the defendants received on said policies the sums of money held to belong to the oratrix such sums were due and owing from them to her. They were the first indebtedness in order of time, if any other existed, from them to her. The rule is well settled in this state, that general payments and credits will be applied to extinguish indebtednesses in the order of time in which they accrued. Morgan v. Tarbell, 28 Vt. 498; Pierce v. Knight, 31 Vt. 701; St. Albans v. Failey, 46 Vt. 448. This is the rule adopted by the court of chancery in making the decree from which this appeal was taken. The decree in this respect was in accordance with the law, and upon the facts disclosed was equitable as between the parties.

Decree affirmed with costs to the defendants and case remanded to the court oj chancery.