Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1885-02-27
THE DAVENPORT Will CASE.


The supreme Courts Opinion in Rull.
The case Of wm. W. Lynde, administrator
of the estate of Mabel Il. Bowker, Us The
Estate of Ro1sna j. Davenport, has attract
ed so much attention, and contains 30 many
points of general interest," that we give the
decision of the Supreme Court for this coun-
ty, rs rendered last week, in full
OPINION BY TAFT, j.
During the lifetime Of RoKana J. Davenport she
was the wife Of Charles N. Davenport, deceased Ma
bel r., the plaintiffs intestate adopted daugh-
ter Of ROxana j., and, contemplating marriage with
Edgar W. Bowker, contract entered into, signed
by the four persons named, by which trust was Gre
Ated, Ro1ana J. being made trustee TO hold the
Of t4GOj for the bene Of Mabel r. and any Issue she
might have. The fund the property OF Mabel,
then subject to her absolute control Chas. N Dayen-
port signed tue contract that 1t might be binding
his wife, but assuming no personal responsibility AL
tue parties save Edgar W. having died, claim
made by the appellee for the amount Of the fund
which remaued unexpended 10 the hands Of RoIana
j. at tue time Of her death. Such claim presented
to tue commissioners appointed by the probate court
TO allow claims against her estate, and being allowed,
an appeal was taken to the county court and II II In
the proceedings In that court that the appellant claims
there error. The cause entered In the coun-
ty court at the March term 1883, and the court APP
pointed commissioner, under Sec $50 X. L., to
anime the claim aud make report. Tue appellant OBJ
jecttd claiming jury trial. Hearing had before
the commissioner, who made report 10 the September
term, 1888 aud upon the hearing the claimant asked
aud had leave, against the objection and exception Of
the appellant, 10 file declaration. Judgment
rendered for the claimant without further hearing,
ana tue appellant excepted. We do not md that
exception Was taken to the order denying the appel
liant trial by jury or the appontm snt OF commits
sloner. Exceptions are claimed, not certified, aud
therefore cannot be considered. The provisions Of
Chapter lls X. L. regulate appeals IRON the probate
TO the county court Sec 2259 provides that claim
ant before the commissioners appeals be shall al the
time Of Ming his Application file in the registers Of
nee certified copy Of the record Of the proceedings
appealed from; aud Sec. 2272 requires him to ne =
declaration setting forth his claim Sec. 2219
when such certified copy IL hled 80 the county
~ shall Try the question, and II question Of fact
is to be decided issue may be Joined thereon under
ne direction OF the court, aud trial had by jury
We think that under this section in all proper
Tor Jury trial either party has right TO such trial,
And the question here IL, Has the appellant Loaf that
rght by not taking exceptions TO the action Of the
eourlnappointinga commissioner at the March term
sec Fsy X l.. authorizes the appointment Of q COM
missioner to take aud report to the the
OF an executor administrator or guardian, in a case
appealed from the decision OF a probate court; but
there is no authority gwen for such appointment in
cause passing TO the county court by appeal from the
decision OF commissioners to ADJUST claims against
estate See 22Is above quoted Indicates the method
OF trial when 1t says the shall try the cues
ton, and, If question Of fact is be decided Issue
may be Joined thereon under the direction Of the
court aud trial had by jury" In all where
questions Of fact To be decided thinE the par
ties are entitled to trial by jury. e. in prop
er Tor jury The declaration nled might be In book,
or the common law action Of account, requiring the
appointment Of an auditor; but in cases proper by
tue common law "fOr the cognizance Of q jury We
think the legislature intended to give the parties
right to trial by that mode. At the time the order
appointing the co IN missioner was made no decara-
ton had been hed, there nothing In the case upon
which issue could be joined aud exception taken
as soon as there was anything in COURT e. the dec
larAton-upon which the court could act. When the
copies OF the appeal show that the claim il nothing
but the settlement OF the account Of an officer named
In Sec $50, declaration may be unnecessary but iu
other cases peadngs should be ed and issue Joined
such course necessary enable the court to deter
mine nov the case should be tried-whether by the
court or an AUDITOR or II a cause proper for Jury
by jury The result, therefore, IL that the action OF
tue court In rendering judgment was irregular aud
versed must oe re-
The next question made is, Had the court iurisdie
uon or should the Claimant have sought relief in a
court Of equity The trust was one created by the
act Of the parties terminabe by the death Of the BEN
eneary without issue, the fund to be paid her when
% years Of age, II she 50 desired. The beneficiary
having deceased without issue the trust was AZ an
end. IL does not appear that the fund WAS ever in
vested in any SPECIFIC items Of property; II it had
been, and go continued, It could undoubtedly have
been pleaded In defence Of the claims ia suit All
that appears in this respect is that legacy was placed
IN the hands Of Mrs Davenport In trust to prevent
conversion Of 1t by Mabel's intended husband
The reason why an action at law cannot be main
tanned against trustee is that the legal title Is in him
and not IN the cesfui que trust. Where an account
between the trustee aud the beneficiary has been sat
ed It has been held that assumpsit would lie against
the trustee while the trust still open, and This
upon the ground that legal debt has been created
between the parties 70 Perry Trusts sASl: and the
same has been held TO single item separated from
an active aud existing trust by the court Of kings
bench, composed Of such judges as Denman Cole
ridge aud LittledAle. Roper vs.. Holland, A. re
In the case Of Underhill vs. Morgan, 50 Conn. los
husband held certain property In trust for his wife
and after the husbands death the widow brought a.
snmpsit against the administrator of the husbands
estate for tue trust funds remaining and a recovery
had. The question made whether she had
such legal title as would enable her to maintain an
action at law for the property, and thoroughly dis
cussed. Mrs Davenport was nothing but mere
trustee. The law required her 10 hold the legal title
for the benefit aud protection Of Mabel As soon as
tue latter died without issue the trust ceased and the
administrator OF her estate was invested with the le
gal title TO the fund.- well the right OF possession
anu therefore can maintain action law to recover
IT, As was said in the case last cited, 'sThs view of
the question is supported by the doctrine that the ae
ton for money had and received is based on princ.
pies OF equity. It lie just and right that the piant
should recover this money, to which no one hut the
claimants estate has any right, and which has been
Tor no legal purpose which we can recognize taken
from it by the defendant"
We do not say but what the fund might be nursued
IN equy-it Is probably the only way to follow II II
the claimant wished TO obtain the specific items in
which the fund had been invested but We are clearly
OF opinion that an action at law may be maintained
against the estate Of the trustee.
We DO not consider necessary TO notice the other
questions discussed except to say that We see no vy
by which the claims OF either the estate Of O. n Day-
export or that of RoKana j., against Bowler can be
onset against the claim in suit Although BoWker NAV
be the only person now claiming the estate, IL NAV
upon distribution be decreed TO some one else or
there may be nothing left Of It to pass under the de-
cree.
Judgment reversed aud cause remanded TO the
county court for further proceedings