Farr v. Putnam

60 Vt. 54

• Court: Supreme Court of Vermont
• Decided: October 15, 1887
• Status: Published

Opinion

The opinion of the court was delivered by

Rowell, J.

Before and at the time of the death of Hyrcanus Farr, an insane person, on August 17, 1878, the orator was his guardian.

By his bill the orator seeks to subject his ward’s estate in the hands of the administrator and of the other defendants as far’ as they have had to do with it, to a first charge or lien for the payment of the balance found due him on settlement of his 'guardianship account in the Probate Court on January 8, 1879. The bill goes upon the ground that in the orator’s hands his ward’s property was chargeable with the payment of what was due him as guardian,' but that the property was iinlawfully and against his will taken from his possession by the administrator, and therefore is still chargeable in his favor by way of an equitable lien or mortgage, for the foreclosure of which he prays.

But the findings of the master do not sustain the allegation that the property was taken from the orator unlawfully and against his will. On the contrary it appears that the administrator took it with his consent, though with an understanding and expectation on his part that it would be sold and he paid from the proceeds. And the administrator expected the result would be that he would be thus paid, but he did not feel authorized to make payment without an order of the Probate Court, which he has never attempted to obtain.

It also appears that the orator was with the appraisers when they appraised the property of the estate, and pointed out some of it to them ; that before the property was sold he knew the administrator had obtained license to sell the real estate ; and that at one time he bargained with the administrator to buy the whole estate for $1350, but the trade fell through. During all this time it does not appear that the orator claimed any lien on the property, but only, when he said anything about it, that he should be first paid out of the proceeds.

The orator concedes that if he never had a lien on the property, or if he had one and has lost it, he cannot maintain his bill. Now, without undertaking to say whether he ever had a lien or not, we think if he ever had one he has waived and lost it. See what he has done. Every thing shows that he did not intend to retain a lien on the corpus of the property itself in the hands of the administrator; for he consented to let it go into his hands, supposing and expecting he would' sell it in due course of administration. . And his consent was not, as claimed, on condition that he should be paid from the proceeds, but was unconditional and absolute. How then can it be said that he intended to retain a lien on the property ? It is clear that he did not so intend, not even as to the homestead, for that went into the hands of the administrator with his consent with the rest of the estate and with the same expectation on his part that he was going to be paid out of the avails of the property sold, and at that time the estate appeared to be ample, aside from the homestead, to pay him, if he was to be preferred to other creditors, and that was what he expected, and he then neither claimed nor expected anything else; but now, the estate having been all sold, except the homestead, and converted into money, it transpires that by reason of the depreciation of the property in value from the appraisal there is very-little left of the avails with which to pay any body. This makes the- idea of setting up a lien on the property look very much like an after-thought on the part of the orator, conceived when in the course of events a necessity for it seemed to arise.

We have not inquired whether the orator has a superior right to be paid out of the avails of the property; for if he has he cannot assert it under his bill as drawn, certainly, if he could by a bill properly drawn and against proper parties.

This renders it unnecessary to. consider the other points made in argument.

Decree affirmed and cause remanded.