Humbird v. Humbird

Bond, C. J., delivered the opinion of the Court. Trustees of a residuary estate under a will appeal in this case from the disallowance of claim made by t-hem of a right ⁵⁸⁴ to deduct, from a distributive share of the income, interest accrued on a note of a deceased distributee, alleged to have been assumed by his widow, wlm succeeded as distributee in her own right, and is now the appellee. She denies ever having assumed the note of her husband, denies that there would have been any consideration to1 support assumption of it by her, and denies that her assumption of it would be enforceable if made, because it would be an undertaking to pay the debt or default of another, and there was no assumption of it in writing as required by the fourth section of the Statute of Frauds (Stat. 29 Car. II).

The court below found the note to have been legally assumed by the appellee, but found that the trustees had been guilty of laches in failing to insist upon their right to the obligation for many years past, and could not now make the deduction sought. The will of Sarah A. Humbird, who died in 1891, gave a one-sixth share of income under a trust of the residuary estate to John J. Humbird, and, upon his death without issue, then to his widow, Barbara Humbird, during her life or until her remarriage, and, John J. Humbird having died in 1908 without issue, his widow, the appellee, became entitled under this provision and has since been receiving this share of the income. In 1899, John J. Humbird borrowed from the trust estate $1,000, and gave his note for it, secured by the deposit of stock in an East End Land Company as collateral. John J. Humbird was less successful than other distributees, and from time to time J. Wilson Humbird, his cousin, and now one of the trustees in substitution for those named in the will, helped him with gifts of money, and promised that, when he should effect a sale of some coal land owned by him, he would give John J. Humbird half of the proceeds as a voluntary gift.

Before the death of the latter, and at his request, J. Wilson Humbird promised that he would make the gift to the widow. The note for $1,000 remained unpaid at the time of the death of the husband. And, from this point in the history of the case, the testimony of J. Wilson Humbird and the widow is in conflict. ⁵⁸⁵ He testifies that he sold his land in 1917, and had $2,040 to give in fulfillment of his promise, hut determined to pay from it to the estate the amount due on the note, giving the remainder to Mrs. Humbird, the widow. Mrs. Humbird, however, according to his testimony, persuaded him to give her the whole amount upon her assuming payment of the note, and he did so.

He testified that she verbally agreed to pay the note, and that interest accruing on it subsequently was regularly deducted from her share of distributable income until the year 1931. Mrs. Humbird admits having received the gift of $2,040, but, as stated, denies having assumed the payment of the note, saying that she never knew of its existence before 1931, and she denies having had any knowledge of the deductions of interest from her distributive share of income before that year. Both agree that in 1931 ,she inquired, or complained, concerning the fact that she was not paid a full one-sixth share, and that she then refused to consent to the making of the deductions. Thereupon, in 1931, the trustees filed a petition praying that the principal and interest due on the note he ordered deducted from Mrs. Humbird’s share in an accumulation of income then ready for distribution.

After answer filed, and testimony taken in open court, the petition of the trustees were dismissed. There was a cross-petition filed by Mrs. Humbird for repayment of the interest deducted from her share in the past, and this cross-petition was dismissed, and an appeal from the dismissal taken; but counsel inform us