text:
    Canfield against Bostwick and others.
    As a general rule, legacies are to be paid out of the personal estate.
    It is also a general rule, that a will speaks from the death of the testator, and not from its date, unless its language, by a fair construction, indicates the contrary intention.
    Where the testatrix gave sundry legacies to her grandchildren, and devised the residuum of her real estate to her children; and it also appeared, that at the making of her will, she owned no personal estate, though she became the owner of such estate before her death; it was held, that such legacies were payable out of the personal estate.
    Parol evidence is not admissible to vary the construction of a will, where there is no ambiguity created by the application of extraneous circumstances.

      Litchfield,

    June, 1852.
    Where an additional inventory was exhibited, in the course of administration, and the only article therein complained of, was a muff, found to be worth one dollar, seventy-five cents, which was sold for two dollars, and the avails duly applied; it was held, that this was not a sufficient ground for reversing the decree appealed from; the remedy of the appellant, if he was entitled to any, being by suit on the probate bond.
    Where the administrators, in the settlement of their administration account, included two dollars, fifty cents, for services then future, though necessary to be rendered; there being in this no unfairness, nor injury to the estate, but a matter of convenience and economy; it was held, that this was not a sufficient ground of reversal.
    But where the administration account included, as fees of the judge of probate, fifty cents, each, for a finding on the return of the inventory and order of sale, on the approval of the sale, on the return of notice, and on the return of a sale of real estate; it was held, 1. that the services for which these charges were made, were included in other services, enumerated in the table of fees; 2. that the charges therein specified contained all the charges allowable by law to judges of probate and their clerks; 3. that the appellant being heir at law and devisee, could avail himself of this objection; 4. that consequently, the decree of probate should be reversed to that extent, and in other respects affirmed.
    This was an appeal from a decree of the court of probate for the district of New Milford, passed May 11th, 1850.

      Betsey Canfield, of New Milford, on the 14th day of October, 1847, made her last will and testament, by which, after providing for the payment of her just debts and funeral charges out of any estate that she should leave at her decease, she bequeathed to her grandchildren the following legacies: to Henry Bostwick and Elizabeth Bostwick, one hundred dollars, each; to Walter Bostwick, two hundred dollars; to Samuel Northrop, Lawrence Northrop, and Cyrus Northrop, one hundred dollars, each; to Mary Elizabeth Dunderdale, one hundred dollars; to Martha M. Booth, one hundred dollars; and to Henry Seymour Mygatt, one hundred dollars: the above legacies to be paid to the legatees or guardians, in one year after her decease. The testatrix then gave and bequeathed the remainder and residue of her estate real, to be divided equally between her beloved daughter Betsey Booth and her beloved son Royal J. Canfield; that part of the bequest to Royal J. Canfield in this will, to be given to Betsey Booth, at the decease of Royal J. Canfield, or to Betsey Booth's heirs.
    The decree appealed from ordered the personal estate, owned by Mrs. Canfield, at her decease, after the payment of her debts and the expenses of settling her estate, to be applied to the payment of the legacies given by her will.
    At the hearing before the superior court, at Litchfield, August term, 1851, the following facts were found. Royal J. Canfield, the appellant, is one of the children and heirs at law of Betsey Canfield, the testatrix, and one of the devisees under her will. The appellant offered parol evidence to prove, that the testatrix, when she made her will, was a married woman, and the wife of Ithamar Canfield, since deceased; and that, at that time, she was not the owner of any personal estate, and especially of the personal estate included in the inventory of her estate since made, but that the personal estate thus inventoried was the proper estate of her husband. To this evidence the appellees objected; but the court admitted it.
    The appellant also introduced Dr. Jehiel Williams, as a witness, who testified, that he drew up the will of the testatrix, and read it to her, as originally written, when she objected to the word “personal” then contained in it, remarking, that “she had no personal estate, and if she should have any hereafter, she could dispose of it, when she got it where upon, he erased from the original draft the words “both” and “personal;" after which she executed the instrument, and published it as her will. To the admission of this evidence the appellees objected; and thereupon the court rejected it, subject to the opinion of this court.
    When the will was so executed by Mrs. Canfield, she was not the owner of any personal estate, but the personal estate contained in the inventory which was returned to the court of probate, was in fact the proper estate of her husband, who was then living, and upon his death, which took place afterwards, it was distributed to her, as his widow. After it was thus distributed to her, and had come into her possession, she made no farther disposition thereof, by will or otherwise; nor did she make any alteration in or revocation of her will.
    The charges made by the administrators in their administration account, which were approved by the court of probate, for time by them spent and expenses paid by them, in the settlement of such estate, were true, reasonable and proper, with the exception of the following charges of the judge of probate: a finding of the court on the return of the inventory of said estate, and also on the return of the order of sale of the personal estate, one dollar; a finding of the court upon a report of commissioners, fifty cents; a finding of the court, approving the sale of personal estate, fifty cents; a finding of the court on return of notice, fifty cents; a finding of the court on return of order of sale of real estate, fifty cents. And also in said account are included, as part of the future and anticipated expenses and fees of court, the following charges, viz., order of distribution, seventy-five cents; approving the same, seventy-five cents; recording the same, one dollar. Though the last mentioned services had not then been performed, yet in making the charges, the judge of probate acted in good faith, and in conformity with common usage.
    The muff mentioned in the administration account, and embraced in an additional inventory, was of the value of one dollar and seventy-five cents, and no more; and it was sold, by the administrators, for two dollars, and the avails thereof were by them fully accounted for to the court of probate, together with the rest of the additional inventory; and this without injury to the estate.
    The several questions arising upon the record were reserved for the advice of this court.

      Sanford and Orton, for the appellant.

      Seymour and Harrison, for the appellees.
   Ellsworth, J.

We think there is no error in the decree of probate, ordering the payment of legacies out of the personal estate.

The general rule of law has not been questioned; but it is said, the rule does not apply to this case, because, at the time the will was made, the testatrix had no personal property to pay the legacies with; and besides, after giving the legacies, she gives “the remainder and residue of her real estate.”

A will speaks from the death of the testator, and not from its date, unless its language, by fair construction, indicates the contrary intention. That may be by words of description, or by reference to an actual existing state of things. 1 Jarm. on Wills, 277: hence a devise of personal property, generally, carries all the testator had, at the time of his death. The same would have been true of real estate, had it not been held, that in England, a devise of real estate was considered to be, in the nature of an appointment, which could not be made in relation to future acquired estate. The rule was the same here, until our late statute was passed; but the rule has been abolished here and in England, and there is now no difference between real and personal estate.

The argument of the appellant’s counsel, then, fails, if this will speaks, as we hold it does, from the death of the testatrix, and not from its date.

We discover no records which controul the general principle, that legacies are to be paid out of the personal estate of the testator. In this will, the legacies are given generally. There is no provision exempting the personal property from their payment; and we see nothing in the language used, nor in the dispositions in the will, which induces us to depart from the general rule, and so make the legacies a charge on the real estate. Nor does the fact, that the testatrix had no personal property, when she executed her will, make any difference. She had, when the will is held to speak; and that is sufficient: and besides, after she acquired the property which she had at her death, she might have altered her will, and charged the legacies, contrary to the presumption of law, on a different fund. Perhaps this was her intention; but we cannot presume it was, nor can we let in parol proof to establish it.

But it is said, the form of the residuary bequest of the real estate, proves that such was her intention, and that that appears from the will itself. It is true, the words “remainder and residue of my estate real," are used. But these words are not words of exemption; something more clear and decisive is necessary to do that, and break in upon a well settled principle of law. Indeed, it is much more of a question, had it been pressed upon us, whether, according to the course of decisions, the real estate was charged with the legacies, at all. Gridley v. Andrews, 8 Conn. R. 1. Swift v. Edson, 5 Conn. R. 531. Saunders v. Mathewson, 11 Conn. R. 148. Kightley v. Kightley, 2 Ves. jun. 328. Keeling v. Brown, 5 Ves. 359. Lupton v. Lupton, 2 Johns. Ch. R. 614. Pow. Dev. 122.

The superior court was correct in rejecting the testimony of Jehiel Williams. There is no ambiguity raised on the provisions of the will, to let in such proof. The truth is, this appellant is attempting to deny and controul the will, by parol proof, rather than to explain away any ambiguity created by extraneous circumstances applied to it. He wishes to show, that the will is to take effect from its date, and not from the death of the testatrix; which is no ambiguity of any kind.

It is further said, the judge of probate erred in allowing, a credit to the estate, in the administration account, of forty-four dollars, in an additional inventory. This was made, upon the discovery of a few articles, after the principal inventory had been made and returned. It was not signed by the appraisers; nor had they placed a valuation upon the property in it; or this omission, it is said, should have induced a rejection of the credit. The court find, that this new discovered property has been fully applied, and that there has been no fraud or unfairness; and especially do they find, that the only specific article in the new inventory complained of, is a muff, worth one dollar, seventy-five cents, and that it was sold for two dollars, and duly applied. Now, without deciding whether an additional inventory must, in every case, be made and sworn to, as if it were the primary inventory, in order to save a breach of the probate bond, we are fully satisfied no such objection lies here. The account properly embraces this charge against the administrators; and since the property is now sold, and cannot be appraised by the appraisers, if the appellant is entitled to relief, it must be by a suit on the bond.

It is again said, that in the account, the court allowed a charge against the estate of three items, amounting to two dollars, fifty cents, for services then future, although they were certainly to be rendered, and that this was illegal. We do not so apprehend it. If those charges are to be made, the court would, if it approved of it, then allow them to be made in the final administration account, as a matter of convenience and economy. There was no unfairness in this and no injury to the estate; and nothing is more common than for an administrator, in closing up his account, to charge certain ascertained future disbursements, e. g., as for a monument, taxes, &c. Whatever is left in his hands, by permission of the judge, he is responsible for on his bond.

The remaining objection, to certain fees of the probate judge, we think is well founded and unanswerable; and to that extent, we advise the superior court to reverse the decree. Those fees are fifty cents each, for a finding, on the return of the inventory and order of sale, on the approval of the sale, on the return of notice, and on the return of sale of real estate. These “findings,” as items of distinct charge, are not to be found in the statute bill of fees, and we cannot sanction them. The services of the judge, in this particular, are included in other enumerated services for which fees are allowed. Thus, a finding on the return of inventory, is included in the “receiving and probate of each inventory,” for which a commission of fifteen cents is allowed on every one thousand dollars. So the finding on a return of the order of sale, is included in the “accepting a return of the sale of estate,” for which fifty cents is allowed. The same is true of the remaining charges.

But there is another objection of a most decisive character. In the table of fees, all the fees to be taken by a judge of probate, are specifically put down. Fees for “findings,” are not among them. And then, at the foot of that table, we find this emphatic provision: “The fees herein stated shall include all charges which may be made, by the judges of probate and their clerks, other than such as are allowed by some particular statute.” We are aware, there is a practice somewhat extensive, to charge fees for “findings,” and doubtless, the judge, in this instance, conformed to this practice, and, as he believed, to the law itself; but the charges are none the less incorrect, and cannot be allowed, by this court of dernier resort.

We think the appellant can make the objection on this appeal, since as heir and devisee, he is interested in the administration account.

We advise a reversal of the decree of probate, to the extent of the fees for said findings; and that in other respects, it be affirmed.

In this opinion the other judges concurred, except Hinman, J., who thought, that the question of fees of the judge of probate, did not properly arise in this case.

Judgment affirmed in part, and reversed in part.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Fuller and wife against The Naugatuck Railroad Company.
    Where the declaration, in an action against a rail-road corporation, for a personal injury to one of the plaintiffs, after stating, that the defendants were the owners of a certain rail-road, running through the towns of W and P, and of certain cars for the conveyance of passengers upon that road, averred, that, on the day specified, the defendants were the owners of, and were running and propelling, upon said road, a certain train of passenger cars, for a certain reasonable reward paid to the defendants; it was held, that it sufficiently appeared from the declaration, that the defendants were common carriers.
    In such case, it was not necessary to allege, that the defendants had power by their charter, to become common carriers; for they being engaged in this business, and having, in its pursuit, made a contract pertaining to it, ought not to be allowed to say to the contracting party, that they had no power to do so.
    Where the declaration, by husband and wife, for a personal injury to the wife, after stating the nature and extent of the injury complained of, proceeded to allege, that by means of such injury, she became sick, and was prevented from attending to her necessary affairs, and that the plaintiffs were thereby forced to, and did, necessarily expend two hundred dollars in endeavouring to effect a cure; it was held, that although the plaintiffs could not recover, in the same action, for the wife’s personal injury, and also for the expenses of her cure, yet in this case, the ground of damages, was the wife’s personal injury alone, and the statement regarding the expenses of her cure, was to be considered as descriptive of the extent of her injury, and not as a distinct and substantive ground of damages, and in that aspect, though unnecessary, still it was very proper; but if otherwise, yet as the gist of the action was the breach of contract in not carrying the wife safely, and this was a ground on which the plaintiffs could recover, it will be presumed, after verdict, that the court confined the evidence to that ground.
    Where in one count of the declaration in such action, the promise was alleged as made to the wife, and in another, as made to the plaintiffs; but in the latter case, the allegation of the promise was preceded and followed by language, which shewed that the promise was made for the wife’s benefit; it was held, that the fair reading of this count was, that the promise was made to her; and consequently, there was no misjoinder of counts.

      Litchfield,

    June, 1852.
    A promise founded on a consideration relating to the wife’s personal security, does not vest absolutely in the husband, but may be the subject of an action in the name of husband and wife.
    In all cases where the cause of action will survive to the wife, she may join with her husband in a suit upon it.
    The case of Griswold v. Penniman, 2 Conn. R. 564. considered and commented on.
    Where the plaintiffs, on the trial of the action above stated, offered a witness to prove, that the wife gave money to him to buy a ticket for her passage in the cars to P; that such a ticket was accordingly procured for and received by her; and that she thereupon took her seat in the cars, to be conveyed to P; this evidence was objected to, because it went to prove, that the contract was made with the husband, on the ground, that the money paid for the ticket must be presumed to have been his; but as she might have separate property, and the money might have belonged to either of them, it was held, that the evidence was admissible, as conducing to prove the contract laid, its sufficiency being out of the question.
    An implied contract will be presumed to be made with the party in interest; and as the husband has, legally, no interest in the wife’s personal security, a contract for that purpose, will be presumed to be made with her.
    Where the plaintiffs, on the trial of such action, claimed, that the injury alleged resulted from the car’s not stopping, at the station in question, a reasonable time for the passengers to leave; which was controverted, by the defendants; and the plaintiffs offered evidence to shew the usual and customary period of the car’s stopping at that place; it was held, that such evidence was admissible.
    A carrier of passengers is bound to use the highest degree of care that a reasonable man would use.
    This was an action on the case for a personal injury to Betsey Fuller, one of the plaintiffs.
    The defendants were described in the writ, as “a body politic and corporate, created by the legislature of this state, located and doing business in Bridgeport, in this state, by the name of the Naugatuck Railroad Company, with power to sue and be sued, plead and be impleaded.”
    The first count alleged, That on the 12th day of November, 1850, the defendants were, and ever since have been, the proprietors of a certain rail-road, known and called by the name of the Naugatuck Rail-road, located in this state, running from the town of Milford, in the county of New Haven, to and into the town of Winchester in Litchfield county, and passing through the towns of Waterbury and Plymouth, and are the owners of divers rail-road cars for the carriage and conveyance of passengers upon said road; and that the defendants, on the day aforesaid, were owners of, and were running and propelling, a certain train of passenger cars upon said road, for the carriage and conveyance of passengers, for certain reasonable hire and reward paid to the defendants. The plaintiffs then averred, that upon said 12th day of November, 1850, in consideration that said Betsey Fuller, at the special instance and request of the defendants, would take a seat in one of said cars, at Waterbury, to be carried and conveyed therein from said town of Waterbury to the town of Plymouth, for a reasonable hire and reward, viz., the sum of thirty cents, paid to the defendants therefor, by said Betsey Fuller, they, the defendants, undertook and faithfully promised the said Betsey, safely and securely to carry her, in and by said car, from said Waterbury to said Plymouth, and safely and securely deliver her, at the usual place of delivering passengers in said Plymouth; and the plaintiffs say, that confiding in the undertaking and promise of the defendants, she, the said Betsey, did on said 12th day of November, engage and take a seat in said car, to be conveyed from said Waterbury, to said Plymouth, and she did, then and there, pay to the defendants, said sum of thirty cents, the same being a reasonable hire or reward for the conveyance of said Betsey from said Waterbury to said Plymouth; and the plaintiffs say, that confiding in the promise and undertaking of the defendants, said Betsey did become a passenger of the defendants in said train of cars, to be conveyed from said Waterbury to said Plymouth, yet the defendants, not regarding their said promise and undertaking, but contriving and intending to injure the said Betsey, did not safely and securely carry and deliver the said Betsey out of the said cars, at the usual place of delivery of passengers at said Plymouth, but then and there wholly neglected and refused so to do, but instead thereof, by their servants and agents, so carelessly, negligently and unskillfully managed said train of cars, at and near the usual and common place of delivery of passengers, at said Plymouth, that through the carelessness, negligence and misconduct of the defendants, and their agents and servants, said Betsey was unable to safely and securely get out of and leave said cars, at said Plymouth, and the defendants then and there wholly neglected and refused to stop the motion of the said cars, allow said Betsey a sufficient opportunity, safely and securely to leave said cars; by means of which, said Betsey, in endeavouring to leave said cars, fell and was thrown with great violence from said cars, and on to the earth, and on to an iron rail then and there lying, by means of which the said Betsey was greatly hurt, bruised, wounded and injured in her back, side, head, limbs, and divers other parts of her person, and became sick, sore, lame and disordered, and so remained from that time to the present, during all which time she has suffered great pain and distress, and by means of which she has become permanently lame and disabled, and has been hindered and prevented from performing and transacting her necessary affairs and business by her to be performed and transacted, and also, thereby they, the plaintiffs, were forced and obliged to, and did necessarily pay, lay out and expend a large sum of money, viz., the sum of two hundred dollars, in and about endeavouring to be cured of the bruises, wounds, sickness, soreness, lameness and disorder, aforesaid, occasioned as aforesaid.
    In the second count, it was alleged, That on the 12th day of November, 1850, at Waterbury, in New Haven county, in consideration that said Betsey Fuller, at the special instance and request of the defendants, had then and there engaged and taken a seat and place, by a certain other car, to be conveyed thereby to Plymouth, in Litchfield county aforesaid, for certain other reasonable hire and reward to the defendants in that behalf, they, the defendants, then and there, undertook and faithfully promised said Betsey, that due and proper care should be observed, and taken in and about the conveying and delivering her, said Betsey, as such passenger as aforesaid, to Plymouth aforesaid; and although said Betsey, confiding in the last-mentioned promise and undertaking of the defendants, afterwards, on the day and year aforesaid, to wit, at Waterbury aforesaid, did become such passenger, by the last-mentioned cars as aforesaid; yet the defendants, not regarding their last-mentioned promise and undertaking, yet contriving and fraudulently intending craftily and subtilly to deceive and defraud and injure said Betsey, in this behalf, did not, nor would, cause and procure due and proper care to be observed and taken in and about the conveying and delivering said Betsey, as such passenger as aforesaid, to Plymouth aforesaid, but wholly neglected to do; and by reason of the carelessness and improper conduct of the defendants, and their agents and servants in that behalf, in and about the conducting and managing of the said last-mentioned car, the said Betsey was unable to safely and securely get out of and leave said last-mentioned car, at Plymouth aforesaid; and the plaintiffs say, that although the defendants did, by their servants and agents, then and there stop the motion of the last-mentioned car, to wit, at and near the usual place for the landing and delivery of passengers at Plymouth aforesaid, yet that they did not stop the motion of the last-mentioned car, a proper, reasonable and sufficient length of time to allow the said Betsey safely and securely to leave and get out of said last-mentioned car, by reason of which, said Betsey, while endeavouring to leave the said last-mentioned car, fell and was thrown, with great violence upon the earth, and upon an iron rail, then and there lying, by means of which said Betsey was greatly hurt, bruised, wounded, and injured in her head, back, side, limbs and divers other parts of her person, and became sick, sore, lame and disordered, and so remained from that time to the present, during all which time, she has suffered great pain and torment, and by means of which she, the said Betsey, has become permanently lame and disabled, and has been hindered and prevented from performing and transacting her necessary affairs and business by her to be performed and transacted, and also thereby they, the plaintiffs, were forced and obliged to, and did necessarily pay, lay out and expend another large sum of money, to wit, the sum of two hundred dollars, in and about endeavouring to be cured of the bruises, wounds, sickness, soreness, lameness and disorder aforesaid, occasioned as aforesaid.
    In the third count, the plaintiffs alleged, that, heretofore, on the day and year aforesaid, the defendants were the owners of a certain other rail-road, known and called by the name of the Naugatuck Rail-road, located in this state, and running from the town of Milford, in the county of New Haven, through the towns of Derby, Seymour, Naugatuck, Waterbury, Plymouth, Litchfield, Torrington, to and into the town of Winchester; and then were, and now are, the owners of divers other cars or coaches or the conveyance pagsengers upon said road; and that the defendants, on the day aforesaid, were the owners and proprietors of, and were running and propelling a certain other train of passenger cars upon said road, for the conveyance of passengers, for certain other reasonable hire and reward paid to the defendants; and the plaintiffs say, that upon the 12th day of November, 1850, at Waterbury aforesaid, in consideration that the said Betsey Fuller, at the special instance and request of the defendants, had then and there engaged a seat and place by a certain other car, to be conveyed thereby to Plymouth aforesaid, for certain other reasonable hire and reward to the defendants in that behalf paid and received, they, the defendants, then and there undertook and faithfully promised the plaintiffs, that due and proper care should be observed and taken in and about the conveying and delivering her, said Betsey, as such passenger as aforesaid, to Plymouth aforesaid, and although said Betsey, confiding in the last-mentioned promise and undertaking of the defendants, afterwards, to wit, on the day and year last-mentioned, to wit, at Waterbury aforesaid, did become such passenger, by the last-mentioned car as aforesaid, yet the defendants, not regarding their last-mentioned promise and undertaking, but contriving and fraudulently intending craftily and subtilly, to deceive, and defraud, and injure said Betsey, in this behalf, did not, or would not, cause and procure due and proper care to be observed and taken in and about the conveying and delivering said Betsey, as such passenger as aforesaid, to Plymouth aforesaid, but wholly neglected so to do; and by reason of the carelessness and improper conduct of the defendants, and their agents and servants in that behalf, in and about the conducting and managing the last-mentioned car, said Betsey was unable to safely and securely get out of and leave said last-mentioned car, at said Plymouth; and the plaintiffs say, that although the defendants did, by their servants and agents, then and there stop the motion of the last-mentioned ear, to wit, at and near the usual place for the landing and delivery of passengers at Plymouth aforesaid, yet that they did not stop the motion of the last-mentioned car, a proper, reasonable and sufficient length of time to allow said Betsey safely and securely to leave and get out of the said last-mentioned by reason of which, said Betsey, while endeavouring to leave the last-mentioned car, fell and was thrown, with great violence, upon the earth, and upon an iron rail then and there lying, by means of which said Betsey was greatly hurt, bruised, wounded and injured in her head, back, side, limbs and divers other parts of her person, and became sick, sore, lame and disordered, and so remained from that time to the present; during all which time, she has suffered great pain and torment, and by means of which, she, said Betsey, has become permanently lame and disabled, and has been hindered from performing and transacting her necessary affairs and business by her to be performed and transacted: And also thereby, they, the plaintiffs, were forced and obliged to, and did, necessarily pay, lay out and expend another large sum of money, to wit, the sum of two hundred dollars, in and about endeavouring to be cured of the bruises, wounds, sickness, soreness, lameness and disorder aforesaid, occasioned as aforesaid.

    The defendants pleaded the general issue; on which the cause was tried, at Litchfield, February term, 1852.
    Upon the trial of this cause to the jury, the plaintiffs, in support of the contrast set forth in their declaration, offered one Rufus E. Munger, as a witness, to testify, that on the day when the injury complained of occurred, Betsey Fuller, one of the plaintiffs, gave him some money, and requested him to purchase for her of the defendants’ agent in Waterbury, a ticket for her passage on the defendants’ rail-road car from Waterbury to Plymouth; that he received the money, purchased the ticket, and delivered it to her; and that she thereupon took her seat in the car, for the purpose of being conveyed to Plymouth.

    To the admission of this evidence the defendants objected, because, as they claimed, it did not conduce to prove the contract set up in either count in the declaration, but one variant therefrom. But the court overruled the objection, and received the evidence.
    The plaintiffs, in further support of their action, introduced evidence to prove, that upon the arrival of the car at the station for landing passengers in Plymouth, the defendants gave notice to the passengers who were to leave at that place, by their agent’s calling out “Plymouth;" that, thereupon, she immediately left her seat, and hastened, as fast as she could, to get off the car; but before she was able to leave the same, she was thrown, by the rapid motion of the car, upon the ground, and severely braised and injured; that the defendants’ train was either not stopped at all, at said station, or if stopped, it was but for a very short time, and then again put in motion, without allowing her any reasonable or sufficient time for her to leave the car.
    It was proved, and admitted by the defendants, that upon the arrival of the train at the Plymouth station, notice was given to the passengers to leave, by the defendants’ agent; that before the said Betsey had left the car, the defendants’ conductor had given an order for the train to proceed, and the same was in actual motion; and that the injury complained of was occasioned thereby. But there was no evidence that said conductor, when he gave said order, had any knowledge that said Betsey had not left the car.
    The defendants introduced evidence to prove, that their train was stopped at said station, and remained stationary, for a suitable and proper period of time, and sufficiently long to enable her to leave the car safely and conveniently, after due notice had been given to her; but that instead of leaving the car in a reasonable time, she remained therein an unreasonable period of time, and until after the train had resumed its progress, and that known to her; that when she was about getting off the car, she was informed by the superintendent of the road, that the train was moving, and that it would be dangerous for her then to leave, and if she would remain, he would stop the train. But it was denied by the plaintiffs, that any such information was communicated to her.
    The plaintiffs offered evidence to prove what was the usual and customary period of time, allowed by the defendants for passengers to leave at that station. To the admission of which the defendants objected, but the court admitted it.
    The defendants requested the court to charge the jury as follows, to wit:
    1. That if they found that the train was stopped the usual
      time of stopping, at the station, or long enough to enable Mrs. Fuller, by the use of reasonable expedition and to get off the car with safety, and she did not improve that opportunity, and get off, the defendants were not responsible for the injury.
    2. That if the jury found, that the train was stopped, after notice to the passengers to leave, the usual time, or long enough to enable Mrs. Fuller, in the use of reasonable expedition and care, to get off safely, and she did not get off then, the defendants are not liable for any injury occurring afterwards, provided the jury believe, that the conductor, at the time he started the train, bona fide supposed, that the passengers who desired to leave, had all left the cars.
    3. That if the jury found, that at the time Mrs. Fuller left the car, the train was in motion, so as to render it unsafe for her to leave it, and she knew it, or by the use of reasonable and ordinary care, might have known it, and yet went off, the defendants are not liable, whether the train was stopped or not, at that station.
    4. That the degree of care which the defendants, as common carriers of passengers, were bound to exercise in affording to Mrs. Fuller an opportunity to get off with safety, was not the highest degree of care attainable by human skill and foresight, but only that reasonable care which a prudent man usually exercises upon such occasions.
    The court, in its charge to the jury, informed them, that common carriers of passengers are not insurers of their safety; but they are bound to observe the highest degree of care in carrying them, which a reasonable man would use. Their contract is, that they will carry them safely, and as far as competent skill and human foresight will go, they will take due care in the performance of their duty.
    That the plaintiffs, in the case under consideration, cannot recover, if the injury is, in any manner, attributable to the want of ordinary care and diligence on the part of Mrs. Fuller, in leaving the car: such a degree of care and diligence as it was incumbent upon her to observe, under the circumstances in which she was placed; such as might reasonably have been expected from a person in her situation.
    It was her duty, upon the arrival of the car at the station and notice given to the passengers to leave, to use all reasonable diligence and care to leave the car; and if she omitted to do it, the defendants are not liable.
    So, if she imprudently and improperly attempted to leave the car, under such circumstances as showed a want of reasonable care and caution on her part, the defendants are not responsible.
    The court then submitted the case to the jury, for them to say, from the evidence before them, whether the injury was justly attributable to the want of due diligence, care, or caution on the part of Mrs. Fuller, or to the neglect of the defendants in not allowing her a reasonable time to leave the car, in the manner claimed by the plaintiffs.
    The jury returned a verdict in favour of the plaintiffs, with one thousand dollars damages.
    The defendants thereupon moved in arrest of judgment, for the insufficiency of the declaration. They also moved for a new trial, because the court admitted improper evidence offered by the plaintiffs, and for a misdirection to the jury.

      J. H. Hubbard and Buel, (with whom was Giddings,) in support of the motions,
    contended, 1. That the corporate powers of the company are not sufficiently set forth in the declaration. Goshen & Sharon Turnpike Co. v. Sears, 7 Conn. R. 92. The plaintiffs should have shown, that the defendants, a corporation, had power to become carriers. Common carriers are those whose usual business is, to carry. 1 Sw. Dig. 388. (Dut. ed.) The defendants are not so charged.
    2. That in all the counts, damages are claimed on account of the expenses of carrying the wife, which is error. 1 Chitt. Pl. 61. Barnes & ux. v. Hurd, 11 Mass. R. 59.
    3 That there is a misjoinder of causes of action. The first and second counts are on a contract with the wife alone; the third, with the plaintiffs, i. e. with husband and wife. That is also fatal. Gould on Plead. 219. Bocrum v. Taylor, 19 Conn. R. 122. 126.
    4. That the wife should not have joined at all; for, in the first place, this action “sounds in contract." See 2 Chitt. Pl. 117. 118. 271. 272. Corbett v. Packington, 6 B. & Cres. 268. (13 E. C. L. 170.) Secondly, the contract arose upon the purchase of the ticket. The price was paid
      with the husband’s money, and the contract was with him. Buckley v. Collier, 1 Salk. 114. S. C. 3 Salk. 63. Bidgood v. Way & ux. 2 Bla. R. 1236. 1 Bright on Husband & Wife, 63.
    . 5. That in this action, the wife’s right to sue is not shown, and cannot be intended. 1 Chitt. PI. 21. Gaylord v. Payne, 4 Conn. R. 190. In an action sounding in tort, it is admitted she might join.
    6. That the evidence offered by the plaintiffs, and admitted by the court, was inadmissible. And on this point, it is immaterial whether the action sounds in tort or in contract. Maine v. Bailey, 15 Conn. R. 298. Weall v. King, 12 East, 452. The contract is laid with the wife, in the first and second counts, and with the plaintiffs, in the third count. The evidence offered conduces to prove a contract with the husband alone. See 2 Greenl. Ev. § 209. 212. 1 Chitt. Pl. 295. 9. 304. Here no express contract was made with any one. The law implies the contract with the party from whom the consideration proceeds; and in this case, the husband paid for the ticket.
    7. That the usual and customary length of the stop at Plymouth, was immaterial. What that usual and customary time was, was not in issue. First, the defendants were not charged with stopping less than that time; and so had no notice to contest that point. Secondly, whatever it was, it could not affect the rights of the plaintiffs, nor the duties of the defendants.
    8. That the charge required too high a degree of care of the defendants, “as far as competent skill and human foresight will go,” is too far to require. The ground of liability is negligence; but if the “highest degree of care which a reasonable man would use,” as shown by the usual practice of prudent, reasonable men, tinder such circumstances, then there can be no just charge of negligence. See Derwort & ux. v. Loomer, 21 Conn. R. 253. And yet “competent skill and human foresight will go” far beyond that: so far as to give twice or thrice the necessary time for leaving the cars—giving notice twice instead of once—passing through the cars, and personally arousing the sleepers, &c.
    9. That the court should have told the jury, that attempting to leave, while the cars were in motion, was necessarily instead of leaving this matter to the jury.

      Sanford and Woodruff, (with whom was E. Johnson,) contra,
    contended, 1. That there was no necessity of alleging, that the defendant was a common carrier of passengers, eo nomine—it is sufficient to allege the ownership of the road and cars, and the use of the same, for carrying passengers for hire and reward, which makes them in law common carriers, and so are all the forms. 2 Chitt. Pl. 119. 2 Greenl. Ev. § 221. n. Angell on Carriers, § 592. n. 2. Besides, if the character of the defendant, as a common carrier of passengers, were not alleged with legal accuracy, the defect would be cured by the verdict. 1 Chitt. Pl. 673 to 682. (9th Amer. ed.)
    2. That the action is brought to recover damages for a personal injury to the wife, and the allegation of expenses incurred, &c., at the conclusion of each count, is mere matter of description of the extent of the injury, and not a substantive ground of claim for damages: it is therefore surplus-age, and good, after verdict. Richards v. Farnham, 13 Pick. 45. Lewis v. Babcock, 18 Johns. R. 443. So long as it does not appear that any evidence was offered to prove such expenses, or any claim made for them, on the trial, or that the jury have taken them into consideration, it will presumed, after verdict, that no such claim was made, or evidence offered. Dale v. Dean, 16 Conn. R. 579. 1 Sw. Dig. 776, 7. So where a plaintiff claims more damages than on the face of the declaration appear to be due, it will not vitiate, especially after verdict, 1 Chitt. Pl. 682. Van Rensselaer v. Platner, 2 Johns. Ca. 18.
    3. That though the promise in the third count, is alleged to the “plaintiffs,” in the plural, it is, in the first place, very clearly, a clerical error; for it is apparent, that the words “the plaintiffs,” refer to Betsey Fuller, by what precedes and follows. Secondly, if the promise was made to the plaintiffs jointly, for the benefit of the wife, and for her personal safety, in an action for breach of that undertaking, to recover damages for an injury to the wife, may not a count, upon a promise to husband and wife, be joined with a count upon a promise to the wife alone, both being for the same Cause of action? Thirdly, as the same plea may be pleaded, and the same judgment rendered, and it appears that personal safety of the wife alone was involved, there can be no objection to the joinder of the counts. Fourthly, it is apparent, that all the causes of action stated in the several counts, are for the same identical injury; and as the defendant has not, and could not, sustain any injury, by the form of the averments, as varied, he cannot have a new trial.
    4. That as the several counts are the same in form and substance, and for the same cause of action, and there is no misjoinder; if either count is good, the verdict will apply to that count. Wolcott v. Coleman, 2 Conn. R. 324. Smith v. Cleveland, 6 Metc. 332.
    The counts are all in the forms laid down as good declarations against carriers in assumpsit, 2 Chitt. Pl. 119. 2 Greenl. Ev. § 221. n. Angell on Carriers, § 592. n. 2.
    5. That the evidence of Hunger was properly admitted, because it conduced to prove, and did prove, the contract set up in the declaration. In the first place, he was the mere agent of Betsey Fuller, to purchase the ticket for her; and all the legal consequences followed from the purchase by him, that would, had she bought it in person. Secondly, from the sale of the ticket, by the defendants, to Betsey Fuller, and her taking a seat in the car, the law raises and implies the contract set up in the declaration. Thirdly, if no money had been paid at all—if they received her on board their cars—the law raises and implies the same contract.
    6. That the evidence offered to prove the customary time of stopping at Plymouth, was properly admitted. It was necessary, in order to show the jury, that, at the time in question, they did not stop the usual time, and did not furnish the usual facilities for leaving the car, and so broke their engagement.
    7. That the charge is all good law and right, and left the questions of fact on all the claims of the defendants to the jury to find; and they have found against them, on every one.
   Hinman, J.

The defendants in this case, after verdict for the plaintiffs, move in arrest of judgment, on the ground of the insufficiency of the declaration. The objections to the declaration are, that it does not state, that the defendants are carriers, or, that they had power, by their charter, to become common carriers; that the several counts each join a claim for damages on account of the wife's personal injury, with a claim for the expenses of her cure; that, in the two first counts, the promise is alleged to have been made to the wife, and in the third count, it is alleged to have been made to both husband and wife; that a valid promise cannot be made to a married woman, and she cannot sue in assumpsit, for any claim originating after coverture; and, lastly, it is said, the first count is in assumpsit, on the promise, and the two last counts are founded on the negligence of the defendants, and so are counts sounding in tort.

These several claims will be considered in their order.

First, does the declaration allege, that the defendants are common carriers, or carriers of passengers, or, that they have power, by their charter, to become carriers? We think it does. After stating that the defendants were the owners of a certain rail-road, running through the towns of Water-bury and Plymouth, and of certain cars for the conveyance of passengers upon said road, it then goes on to say, “And the defendants, on the day aforesaid, were the owners and proprietors of, and were running and propelling, a certain train of passenger cars upon said road, for the carriage and conveyance of passengers, for a certain reasonable reward paid to the defendants.” Now, a common carrier is one whose usual business it is, to carry; and the substance of these allegations is, that the defendants owned all the property and implements, usually employed by carriers of a certain description—railroad companies—and that they were, at the time, engaged in the use of this property, for the conveyance of passengers. We think this is enough, without a statement of the length of time the defendants had been engaged in the business, or any direct and positive allegation, that they were common carriers. In this respect, the counts conform to the precedents found in Chitty, or, if they differ from them, are rather more precise than those precedents.

It was not necessary to allege, that the defendants had power, by their charter, to become common carriers. They are alleged to be a rail-road corporation, owning cars, and engaged in running them on their road, for the conveyance of passengers. If this is true, it follows, that, so far as third persons are concerned, they must be presumed to have authority to do the business they hold themselves out as competent to do. They will not be presumed to be engaged in an unlawful business; and, being engaged in this business, and, in its pursuit, having made with the plaintiffs the contract declared on, they ought not now to be heard to they had no power to do so.

2. It is claimed, that the declaration asks for damages on account of the wife’s personal injury, and also for the expenses of her cure.

Each of the counts, after stating the wife’s personal injury, and the extent of it, then goes on to say, that, by means of the injury, she became sick, was prevented from attending to her necessary affairs, “and also thereby, they, the said plaintiffs, were forced and obliged to, and did, necessarily pay, lay out, and expend, a large sum of money, to wit, the sum of two hundred dollars, in and about endeavouring to be cured of the bruises, &c.”

It is clear, that the plaintiffs could not recover for the wife’s personal injury, and also for the expenses of her cure, in the same action. On the former ground of damages, the husband would have no interest, while the latter, would accrue to him alone; and so the two claims would be incompatible with each other. But we do not think this declaration open to that objection. Indeed, it may fairly be doubted, whether it was framed with that object in view. The ground of the action was the wife’s personal injury alone: otherwise, she could not have been made a party at all; and, we think, the statement in regard to the expenses of her cure, may well enough be considered as descriptive of the extent of her injury, rather than as a distinct and substantive ground of damages—as saying, in substance, that she was so hurt, that it had already cost two hundred dollars to cure her. In this aspect, the allegation, though unnecessary, is still very proper.

But suppose the pleader intended it, as a distinct ground of recovery, and that it is so expressed as to bear that construction only, still we think it clear, that it does not vitiate the declaration. In every instance, this claim is inserted as matter of aggravation, and not, as of itself, constituting a ground of recovery. The gist of the action is the breach of contract in not carrying the wife safely. It is stated, as one consequence of that, that the plaintiffs were obliged to expend money in paying for medical attendance. For that the plaintiffs cannot recover ; and if that was the sole ground of damages, it would be fatal to their case. But as there was a ground of damages for which they could recover, it will be presumed, that the court allowed no proof to be given of any ground on which they could not, although stated in the declaration.

3. It is said, there is a misjoinder of counts in the declaration; the promise in the two first counts being laid as made to the wife, and in the third, as made to the plaintiffs. It is true, the third count uses the plural word “plaintiff's,” when stating the person to whom the promise was made; but it is preceded and followed by language which shows, that the wife only was meant. Immediately preceding the allegation of the promise, it is stated, that “in consideration that the said Betsey Fuller, at the special instance and request of the defendants, had then and there engaged a seat and place, by a certain other car, to be carried and conveyed thereby to Plymouth aforesaid, for certain other reasonable hire and reward to the said defendants in that behalf paid and received, they, the said defendants, then and there undertook,” &c., that due and proper care should be observed in and about the carrying, conveying, and delivering her the said Betsey, as such passenger as aforesaid;" and then it goes on to say, that the said Betsey, confiding in said promise, became such passenger. It was, then, the wife that engaged the seat, and paid for her passage; and it was for her benefit that the promise was made. We think, therefore, the fair reading of the count is, that the promise was made to her, although its language, if not restrained by the whole frame of the count, would include both plaintiffs.

4. It is claimed, that a married woman cannot sue in assumpsit, on a contract made subsequent to the coverture; on the ground, that all choses in action accruing to her, vest, absolutely, in the husband; and, under some of our decisions, this is the most material question in the case. It is said, the husband paid for her passage, and therefore, the promise must be presumed to have been made to him. This is contrary to the express allegation in the declaration, in which it is explicitly alleged, that she paid for her passage. But then it is insisted, that as husband and wife are one person in law, the money that she actually paid, must be presumed to have been his, and so the consideration of the promise moved from him. As a wife, however, may have separate estate, over which the husband can have no controul; and may make contracts, which will bind her estate only, and not the husband’s, it is obvious, that her paying money out of such separate estate could raise no promise in the husband’s favour, founded upon the idea, that the consideration moved from him. As then, the money which she paid on this occasion, might have been her separate property, we should be bound, after verdict, on a declaration, alleging that she paid the consideration for the promise, and that the promise was made to her, for her benefit, to presume the facts to be as alleged, if it were necessary to do so, in order to sustain the verdict. But we do not place the case on this narrow ground; for although there are expressions used by our judges, in some cases, which seem to sanction the notion, that all choses in action accruing to the wife during coverture, vest absolutely in the husband; yet the cases in which this point is supposed to have been decided, are all of them distinguishable from this case. None of them arose on promises or obligations relating to the wife’s personal security. They were all mere money claims, for liquidated debts; and some of them were cases where the contest was between the wife, or her representatives, and the husband’s creditors. Indeed, it is not improbable, that the inclination our courts have always felt, to subject all a debtor’s property to the payment of his debts, and to guard against any possible evasion of this liability, may have led to our peculiar decisions on this point. However this may be, the principle, which our courts have established on this subject, is undoubtedly a departure from the common law, and ought not to be extended so as to operate unjustly. The rule of law is, that in all cases where the cause of action will survive to the wife, she may join with her husband in a suit upon it. This rule has not been affected by the cases to which we refer. Its application has been narrowed, by leaving the cases in which the cause of action will survive less in number, but the rule remains as before. If, then, the cause of action would survive to the wife, in this case, it must follow, that she may join her husband in a suit upon it. Now, the defendants admit, that an action on the case, for their neglect of duty, in not carrying the woman safely, might be sustained by her.

The question, then, is narrowed down to this—whether our decisions have so far destroyed the identity of the wife, as that a binding promise cannot be made to her for any purpose—not even for her personal security. Now, whatever may be said of the result to which the reasoning of some of our judges leads, we have no idea, that they intended to sanction any such doctrine. The truth seems to be, that our late cases on this subject, rest on the authority of Griswold v. Penniman, 2 Conn. R. 564; and that case rests upon the notion, that, because a husband may sue alone, on most choses in action, accruing to the wife during coverture, they vest absolutely in him. This, says Judge Swift, “clearly proves, that they vest in him absolutely.” Previous to the case of Griswold v. Penniman, our court of errors had decided, that an agreement between husband and wife was absolutely void, unless it was made through the intervention of a trustee. Hutton v. Dibble, 1 Day, 221. Nichols v. Palmer, 5 Day, 47.

This doctrine, carried out, would, perhaps, sustain the case of Griswold v. Penniman. The common law doctrine, that a husband may sue alone, or join his wife, on choses in action, accruing to her, during coverture, is founded upon the principle, that he has his election not to reduce such choses in action to possession; and the courts, at that day, might have considered such an election, to be a void agreement, under the case of Dibble v. Hutton. However this may be, it is clear, that Judge Swift’s principle does not apply to a case like this. The converse of the ground of that decision is true here. For the personal injury of the wife, the husband never could sue alone. He has no direct interest in that—none whatever, unless in consequence of it, he loses her society and service. For that he might sue; but not for the pain she suffers. If, then, it is true, that his right to sue alone, proves, that certain choses in action vest absolutely in him, it must follow, that in cases where he has no such right, they do not vest in him; and this being a case of this description, it must follow, that the suit was correctly brought in the name of the wife.

_The point stated in the motion, that the first count was laid in assumpsit, and the other counts in tort, has not been insisted upon in argument. We presume it was intentionally abandoned; as the counts all seem to have been taken from established precedents in Chitty, of forms given under the head of assumpsit.

Under the motion for a new trial, it is claimed, that the judge erred, in admitting evidence to prove, that the wife gave money to a witness to buy a ticket for her passage in the cars; that such a ticket was procured, which she took, and also took her seat in the cars, to be conveyed to Plymouth. It is said, this evidence went to prove, that the contract was made with the husband; on the ground, that the money she paid for the ticket, must be presumed to have been his. This might be a plausible claim, if it was not possible for a married woman to have separate property; but as she may have such property, it is obvious, the money might have belonged to either of them, and there might have been other evidence, showing to which it did in fact belong. The objection is, that it did not conduce to prove the contract. We think it did; whether it was sufficient for the purpose, we are not called upon to decide.

Again it is said, that no express contract was made with any one; and that the law will imply a contract only with the husband, because he paid for the ticket. We have already seen, that it does not appear who paid for the ticket, unless the fact, that the money came from her hand, is presumptive evidence, that it belonged to her. We do not think there is any presumption that it was his alone. Besides, it does not appear, whether the promise was expressed or implied. The motion does not profess to report the whole evidence in the case; and so far from presuming the contract was an implied one, we should be bound, rather, to presume that it was express, if it were necessary to do so, in order to sustain the verdict. These reasons are sufficient to dispose of this claim; but it ought not to be understood, that we intend to sanction the notion, that the law will imply a contract only with the party who pays the money, in such a case as this. It would seem more reasonable to suppose, that the implied contract, whatever it might be, would be with the party in interest in it. If it was a contract to pay for the wife’s labour, it would generally be to the husband, because he alone is interested in it; but if for her personal security, it must be to her, if any one, because he has no interest in that. But it is not necessary to pursue the subject further.

The injury for which the action was brought, occurred at the station, or usual stopping place, at Plymouth; and the plaintiffs claimed, it was in consequence of the cars not stopping the usual time, or long enough to give the passengers for that place a reasonable opportunity to leave. Under this claim, the plaintiffs gave evidence of the usual and customary period of the cars stopping at that place; and it was claimed, that such evidence was irrelevant, and ought not to have been received. We think it was proper, for the purpose of showing what the defendants had considered a reasonable time, to be allowed the passengers to leave, at that station; and, if the time allowed for that purpose, on this occasion, was shorter than the usual and customary time, it would tend somewhat to show, that a reasonable, time was not allowed. The evidence probably was not very important; but we cannot say, that it was improper.

The remaining question arises upon the charge of the court. It is said, that it requires too high a degree of care in the defendants. But the rule laid down by the judge, was the one adopted by this court, in Hall v. The Connecticut River Steamboat Company, 13 Conn. R. 319; and has been acted upon ever since. It is too well settled to require reexamination.

Upon the whole case, then, the motion in arrest is advised to be overruled, and no new trial is advised.

In this opinion the other judges concurred, except Waite, J., who was disqualified under the statute of 1852, c. 24. § 4.

Motion in arrest overruled;

New trial denied.


author: Church, Ch. J.

text:
    Lawrence against Kitteridge.
    Litchfield,
    June, 1852.
    It is a principle of international law, recognized in the jurisprudence of this state, that the law of the state or country in which the owner of personal property had his domicil, at the time of his death, is to govern the succession to and distribution of that property, wherever it is situated.
    The provision in the statute of this state, regarding the settlement of estates, declaring, that where there are no lineal descendants of the intestate, his “real and personal estate shall be set off equally to the brothers and sisters of the whole blood,” &c., does not affect the doctrine above stated, but the purpose of this provision was only to regulate the descent and distribution of the estates of our own citizens.
    Therefore, where the intestate, at the time of his death, had his domicil in the state of Vermont; there was then due to him from P, a citizen of this state, a debt of one thousand dollars; original administration upon the intestate's estate was granted in the state of Vermont, and was there nearly completed, the debts due to the estate, other than that due from P, being all collected, and all the claims upon it satisfied, when an ancillary administration was granted in this state; there were brothers and sisters of the intestate, of the half blood, living in Vermont, but P, an inhabitant of this state, was the only brother of the whole blood; under the statute of distribution in Vermont, brothers and sisters of an intestate of the whole and half blood are entitled equally to the estate; on an appeal from a decree of the court of probate granting the ancillary administration here, by a devisee and heir at law of P, it was held, 1. that the law of Vermont governed the distribution of the debt due from P, to the intestate’s estate;
    2. that the course taken by the ancillary administrator here, which was, in pursuance of a decree of the court appointing him, to remit the proceeds of P’s indebtedness to the principal administrator in Vermont, was unexceptionable.
    It seems to be settled, that the power of the court granting the ancillary administration, in such case, is a discretionary one, depending upon the circumstances and equity of each case, embracing the rights of all interested.
    Where a debt was due from an estate in settlement to M, and by agreement between M and the administrator, the latter made himself personally responsible to M for the debt, who took from him a discharge in full; it was held, that the allowance, in the administration account, of this debt, so paid, was unexceptionable.
    This was an appeal from two decrees of the court of probate for the district of Norfolk; one passed on the 29th day of September, 1851, and the other, on the 20th day of October, 1851. The former directed, that the remainder of the estate of Cephas Pettibone, deceased, situate in the district of Norfolk, after payment of the debts and charges against that estate in this state, should be transmitted to the administrator on such estate in the estate of Vermont, there to be distributed according to the laws of that state, and not according to the laws of this state. By the latter decree, in the settlement of the administration account, the sum of forty-one dollars, thirty-one cents, was allowed against said estate to Michael F. Mills, Esq.
    At the hearing before the superior court, February term, 1852, the following facts were found.
    In relation to the first decree appealed from, Cephas Pettibone, the settlement of whose estate was in question, died intestate, leaving no children, nor the representatives of any children, but a brother of the whole blood, Augustus Pettibone, Esq., late of Norfolk, since deceased, and several brothers and sisters of the half blood, residing in Vermont, or elsewhere, out of the jurisdiction of this state. At the time of Cephas Pettibone's decease, he was an inhabitant of, and had his domicil in, the state of Vermont. All his personal estate consisted of a debt of about one thousand dollars, due from the estate of said Augustus Pettibone, who, at the time of his death, and for many years before, resided in this state. Original administration on the estate of Cephas Pettibone was granted in Vermont, and was in progress, when an ancillary administration was granted in this state, and the first decree appealed from, was passed. At this time, there were no unsatisfied debts due from the estate, here or in Vermont; and nothing to complete the settlement of the estate, remained to be done, except the distribution thereof.
    As to the last decree, it was found, that at the death of the intestate, there was justly due from his estate to Michael F. Mills, Esq., the sum of forty-one dollars, thirty-five cents; and it was agreed between him and W. C. Kitteridge, the administrator in Vermont, that the latter should become personally responsible for the debt, and give said Mills a receipt in full discharge of his claim against the estate; which was done. The object of this arrangement was, to enable the administrator to settle his administration account.

      E. Grove Lawrence, the appellant,
    is the devisee, and one of the heirs at law, of said Augustus Pettibone, the brother of the whole blood of the intestate, and is thus interested in the distribution of the estate in question.

      The case was reserved for the advice of this court as to what judgment should be rendered thereon.

      Hall and Peet, for the appellant,
    contended, 1. That each state is bound to enforce its own positive law, and protect the rights of its own citizens, notwithstanding this may conflict with the law of other states, or the rights of citizens residing in other states. When such a conflict occurs, our laws are to prevail. Blanchard v. Russell, 13 Mass. R. 1; also Prentiss v. Savage, 13 Mass. R. 20. Tappan v. Poor & al. 15 Mass. R. 419. Sto. Conf. L. 348. 421. McCollimer v. Smith, Meigs’ R. 342. Titus r. Hobart, 5 Mason, 378. Ingraham v. Geyer, 13 Mass R. 146. West Cambridge v. Lexington, 1 Pick. 506. Greenwood v. Curtis, 6 Mass. R. 358, 377. Bulger v. Roche, 11 Pick. 36. Smith v. Spinolla, 2 Johns. R. 198.
    2. That there is, in this state, a positive and imperative statute law, directing as to the distribution of both real and personal estate; (Stat. 357. § 49.) which the court of probate, in this case, disregarded.
    3. That where there is a positive law where the property is situated, that law is to prevail as to the distribution of the personal estate, and forms an exception to the general rule, that the law of the domicil of the deceased shall govern, especially if the claimant, who is entitled, by such positive law, shall seek to enforce his rights under it. Sto. Conf. L. 346. § 410. 348, § 414. 438, 9. § 424, 5. Mahorner v. Hooe, 9 Smedes & Mar. 247. Aspden v. Nixon, 4 How. U.S. 67. Kneeland v. Ensley, Meigs' R. 620.
    4. That the property, if distributed according to the laws of the state of Vermont, should not be transmitted to that state, but distributed here. See cases cited by Webster, arguendo, in Harvey v. Richards, 1 Mason, 403. 2 Kent's Com. 432 to 434.
    5. That the court of probate erred, in allowing the administrator the amount of Mills's account; because he had never in fact paid it to Mills. Such a course would open a door to fraud. It would be an inducement for executors and administrators to collude with pretending creditors, and thus speculate out of the estate.

      J. H. Hubbard and Peck, for the appellee,
    contended, 1. That the distribution of personal property, wherever situated, is governed by the law of the country of the owner’s or intestate’s domicil, at the time of his death, and not by the conflicting laws of the various places where the goods happened to be situated. 2 Kent’s Com. 428. (4th ed.)
    2. That there is no such conflict between our statute and the statute of Vermont, as will justify our courts, upon any principle of affording the protection sought by the appellant, in violating the international rule. Both statutes must be reasonably construed, and in subservience to other important rules whose permanency should not be shaken. Our statute of distribution cannot be considered as embracing this case: because it is not to be presumed its makers ever intended it should have such scope, as to make it conflict with the rule, that personal property shall be distributed according to the law of the country of the intestate’s domicil; which last named rule is well recognized by us. Whether it be called a part of the law of nations, or a mere rule of comity, it would be the worst policy in the world to violate it, because our own citizens often are the recipients of its favour, under the obedience or respect paid to it, by the other states.
    3. That if these principles have validity, then it follows, that the appellant, as a legatee of a brother of the whole blood of the intestate, had no right, by our own laws, to claim a preference over the brothers of the half blood, or their representatives; and he is not seeking protection, but a donation.
    4. That the admistrator here was only ancillary to the principal administrator in Vermont, and all the effects here, not wanted for the payment of debts and expenses, were properly decreed to be delivered over to the principal administrator. Perkins, admr. v. Stone, 18 Conn. R. 270. Atwood v. Protection Ins. Co. 14 Conn. R. 255. 2 Kent’s Com. 429. 430. 431. 432. 433. Dawes v. Head, 3 Pick. R. 128. Harvey v. Richards, 1 Mason’s R. 403. Sto. Conf. L. 433. § 518.
    5. That from the authorities, which hesitate to recommend, that in all cases, the property be transmitted to the principal administrator for distribution, it is apparent, that the question is not one of jurisdiction, but of judicial discretion; so that the right and authority of the court is not disputed. Sto. Conf. L. 424. 2 Kent’s Com. 452, 3.
    6. That if the court of probate, in its discretion, had decreed a distribution here, it must have been made according to the laws of Vermont. And no motion or claim was made, by the appellant, before the court of probate, for an order of distribution here, according to the laws of Vermont; nor is the omission to make such order, assigned as error; nor was it made a point in the superior court; and it cannot be claimed as a reason why the appeal should be set aside in this court.
    7. That it is found, that the property in Connecticut consisted of a debt due to the estate of Cephas Pettibone from the estate of Augustus Pettibone, deceased; and it was a sound exercise of discretion, on the part of the court of probate, to order it transmitted to the principal administrator.
    8. That the other reason assigned for the appeal, is disposed of, by the finding of the court. The debt is paid.

   Church, Ch. J.

The first decree of the court of probate appealed from, was predicated upon facts essentially as follows, viz., Cephas Pettibone, the intestate, at the time of his death, was an inhabitant of, and had his domicil in, the state of Vermont, and was possessed of an estate there; and there was due to him here, from a citizen of this state, a debt of about one thousand dollars. Original administration upon his estate was granted in the state of Vermont, and was in progress, when an ancillary administration was granted in this state. When the decree appealed from was made, there were no unsatisfied debts due from the estate, here or in Vermont, and nothing but a distribution of the estate remained to be done.

The intestate died, leaving brothers and sisters of the whole and half blood; all, excepting the late Augustus Pettibone, Esq., of Norfolk, who was a brother of the whole blood, residing in Vermont, or elsewhere, out of this state; and he had no other heirs at law. By the laws of Vermont, the brothers and sisters of an intestate of the whole and half blood are entitled equally to the estate, under the statute of distribution.

Upon the foregoing state of facts, the court of probate for the district of Norfolk was of opinion, that the personal estate of Cephas Pettibone—the chose in action of one thousand dollars—should be distributed according to the laws of the state of Vermont; and that this could better be done, and without injury to any citizen of this state, by transmitting the money to the administrator there, and to the jurisdiction of the court of principal administration, than to order a distribution of it here. And therefore, the decree appealed from, was made.

The appellant, who is the representative of Augustus Pettibone, the brother of the whole blood residing in the district of Norfolk, objects to this decree, and appeals from it. He claims, that the assets or money in the hands of the administrator here, should have been distributed here, and according to the laws of this state, which prefer a brother or sister of the whole blood to one of the half blood.

1. We had supposed, that the law of the country of the domicil of an intestate governed and regulated the distribution of his personal estate; and that this was a principle of international law, long ago recognized by jurists in all enlightened governments, and especially recognized by this court, in the recent case of Holcomb v. Phelps, 16 Conn. R. 127. 133. in which we say, that, “It certainly is now a settled principle of international law, that personal property shall be subject to that law which governs the person of the owner, and that the distribution of and succession to personal property, wherever situated, is to be governed by the laws of that country where the owner or intestate had his domicil, at the time of his death.” Sto. Conf. Laws, 403. in notis. § 480. 465. 2 Kent's Com. Lect. 37. 2 Kaime's Prin. Eq. 312. 826. Potter v. Brown, 5 East, 124. Balfour v. Scott, 6 Bro. Parl. Cas. 550. (Toml. ed.) Bempde v. Johnstone, 3 Ves. 198. Pepon v. Pepon, Amb. 25. 415. Guier v. O'Daniel, 1 Binn. 349. in notis. Harvey v. Richards, 1 Mason, 381.

It is not necessary that we should now examine the reasons, whether of public policy or legal propriety, which have led the tribunals of civilized nations to relax from antiquated notions on this subject; some of these are well considered, by Judge Story, in the case of Harvey v. Richards, 1 Mason, 381. and by Chancellor Kent, in his Commentaries, vol. 2. Lect. 37.

It is true, that it is in the power of every sovereignty, and within the constitutional powers of the states of this Union, to repudiate this salutary doctrine, in its application to themselves, or to modify it, for what they may suppose to be the protection of their own citizens; but without some peculiar necessity, it cannot be supposed, that any well regulated government will do it. It was claimed in argument, in this case, that this had been done in this state, and by the provision of the 49th section of our statute for the settlement of estates, (Stat. 357.) by declaring, that when there are no children, &c. of an intestate, his “real and personal estate shall be set off equally to the brothers and sisters of the whole blood.” But it was not the purpose of this provision to disregard the universal and salutary doctrine of the law to which we have referred, but only to regulate the descent and distribution of the estates of our own citizens. This provision of our statute is not peculiar to ourselves; a similar one, we presume, may be found in the codes of other states; at least, imperative enactments exist in every state, directing the distribution of estates; but none of them are intended to repeal the law of the domicil, in its effect upon the personal estate of the owner. The controversy, in the case of Holcomb v. Phelps, arose under the same section of our law as does the one now under consideration, and the result of that case must settle this question, if it be one.

There are cases, in which the law of the domicil has been modified or restrained, in its full operation, for what courts have supposed to be the proper protection of the rights of the citizens of their own states; but these are generally confined to cases in which creditors are, in some way, interested, under insolvent proceedings, assignments, or bankrupt laws, and never, we believe, are extended to mere cases of distribution, as here claimed. Sto. Conf. L. 277. § 337.

The views of the court of probate in regard to the operating law of distribution, in this case, were correct; and the remaining question, in this part of the case, is, whether the decree which followed, directing the money in the hands of the administrator here, to be transmitted to the proper jurisdiction in Vermont, for distribution, should be reversed; or whether the court here, should, by its own decree, have made distribution according to the laws of Vermont?

There was but one estate to be settled; and this was, in legal view, attached to the person of the owner, at the time of his death, so far as it was personal. There were two administrations; one original and principal in Vermont; the other ancillary and subordinate, in this state. Perkins v. Stone, 18 Conn. R. 270. Sto. Conf. L. 423.

The creditors of this estate, and all persons having claims upon it, in this state and in Vermont, were satisfied, and nothing remained to be done, but the distribution of it among those, who, by the laws of the state of Vermont, were entitled to it. Why were two distributions of this one estate necessary? Without special reasons requiring a different course, there would seem to be a propriety, that the consummating act in the settlement, should have been done, by the tribunal exercising the principal jurisdiction, and that the money accidentally and temporarily in this state, should be transmitted thither, for that purpose. Otherwise, there might have been conflicting decrees, and the courts of the different jurisdictions, upon varying proofs, might have found different persons entitled to take as distributees. The law of Vermont was the governing law, and known to the courts of that state, as a matter of certainty; but here, to be ascertained only by proofs, as a matter of fact.

There are cases in which the courts of the ancillary administration have retained the assets, and distributed them according to the law of the domicil; and others, in which they have been transmitted to the principal and original jurisdiction for final action. Harvey v. Richards, 1 Mason, 381. Richards v. Dutch, 8 Mass. R. 506. Dawes v. Boylston, 9 Mass. R. 355.

We do not think it to be a legal consequence, because distribution should be made according to the law of the domicil, that the assets should be transmitted for distribution; the courts of the ancillary jurisdiction may distribute them. Stevens v. Gaylord, 11 Mass. R. 256. Dawes v. Heath & al. 3 Pick. 128. Bruce v. Bruce, 2 Bos. & Pull. 229. Balfour v. Scott, 6 Bro. Parl. Cas. 550. Hog v. Lashley, Id. 577. Drummond v. Drummond, Id. 601. Somerville v. Somerville, 15 Ves. 791.

But it seems now to be settled, that the power, of the court granting the ancillary administration is a discretionary one, and should depend for its exercise upon the circumstances and equity of each case. This is a salutary principle, and can work no harm; but in its application, the citizens of the state of the ancillary administration and their rights, are not alone to be regarded, but also the rights of all interested. Harvey v. Richards, 1 Mason, 381. Dawes v. Head, 3 Pick. 128. Topham v. Chapman, 1 Rep. Const. Court, S. C. 292. 2 Kent’s Com. Lect. 37. Sto. Conf. L. 424.

We see no good reason to be dissatisfied with the application of this principle and the exercise of this discretion, by the court of probate, in the decree appealed from. The original administration was granted, by a court in a sister state near by; and within one or two days’ reach of the appellant, who represents the only person interested in the estate here! All the other interested parties—and there were several of them—resided in the state of Vermont, or elsewhere, where they could, with equal convenience, protect their interests, and receive their portions of the distributed estate, as if the distribution had been made by the court of probate for the district of Norfolk. A greater inconvenience and expense has been avoided, by the transmission of the money to Vermont for final distribution, than if it had been retained here. And still we do not say, that we would, even under the circumstances of this case, have reversed an order of distribution, if made by the court of probate here.

2. The objection to the allowance of forty-one dollars to the administrator, for payment of a debt due from the estate to Michael F. Mills, Esq., and the appeal from the order making that allowance, is frivolous.

The estate owed the debt, and the administrator has satisfied it, by substituting his own private responsibility, which the creditor has received as payment in full.

The superior court is advised, that the orders and decrees of the court of probate should be affirmed.

In this opinion the other judges concurred—Waite, J. with some qualifications.

Decrees affirmed.