Opinion
No. 4526.
Argued October 2, 1956.
Decided October 31, 1956.
An exception to the denial of a motion to set aside a verdict of the municipal court as contrary to the evidence presents no question of law to the Supreme Court where no transcript of the evidence was transferred.
On such exception, the findings are deemed to have been based upon competent evidence, and the presumptions are in favor of the verdict below.
An administrator was properly held liable under the equitable doctrine of restitution for fuel oil ordered for the decedent's home by her housekeeper after the decedent's death and before administration was granted where it was found to have been of benefit to the estate which consisted partly of personalty located therein.
The cost of such fuel oil was an allowable credit in the administrator's probate accounting.
ACTION, on a small claim under RSA ch. 503, to recover the sale price of 400 gallons of fuel oil delivered on February 15, 1955, to the former residence of the defendant's intestate Hattie M. Nims, in Keene, on order of her housekeeper given following her death on January 15, 1955, and before a personal representative was appointed on March 4, 1955. Trial before the municipal court of Keene, which found that "since the Hattie M. Nims estate received the benefit of the oil that it should pay the bill amounting to fifty-seven dollars and sixty cents ($57.60) with costs of one dollar and seventy five cents ($1.75)." The defendant's exception to the denial of his motion to set aside the verdict as "contrary to the evidence and the law," and for judgment in his favor, was reserved and transferred by Lane, justice of the municipal court.
It appears from the reserved case that the housekeeper who ordered the oil had previously ordered oil during the decedent's lifetime, and that she continued to live in the decedent's house following the latter's death. It also appears that when the oil was ordered, the plaintiff was aware that the decedent's death had occurred.
Joseph T. Cristiano for the plaintiff, furnished no brief.
Eaton Eaton (Mr. Robert I. Eaton orally), for the defendant.
The housekeeper who ordered oil from the plaintiff is not a party to the action, and hence no question is presented of her liability, either upon her own contract, or as an executor in her own wrong. See RSA 553:17; Emery v. Berry, 28 N.H. 473. Cf. 2 Woerner, Am. Law of Administration, s. 198. Her agency for the deceased terminated at the death of her principal (Wilson v. Edmonds, 24 N.H. 517, 547), and the reserved case establishes that when the oil was ordered the plaintiff knew of the death.
The evidence taken in the court below was not restricted by the technical rules of evidence (RSA 503:7), and is not before us. Consequently the allegation of the defendant's motion that the verdict is "contrary to the evidence" presents no issue for determination in this court. Racine v. Armstrong, 100 N.H. 96. The findings must be taken to have been made upon competent evidence (Id.), and the presumptions are in favor of the verdict below. Chabot v. Shiner, 95 N.H. 252.
The defendant asserts that the verdict was erroneous as a matter of law, because first no legal representative had been appointed at the time when the oil was ordered; and second as administrator of the estate of a deceased person not shown to be insolvent, he had no interest in the care and preservation of the real estate, title to which vested at once in the decedent's heirs. RSA 554:15; Lucy v. Lucy, 55 N.H. 9. If he is required to satisfy the plaintiff's claim, the defendant reasons, the expense will not be allowable in his probate account, but will fall upon him personally. See Ayers v. Laighton, 73 N.H. 487.
The reserved case indicates that the verdict was founded upon a finding that the estate "received the benefit of the oil." The liability found by the trial justice thus rests not upon any assumed contract of a legal representative, but upon an obligation arising out of the equitable doctrine of restitution. See Beaudry v. Favreau, 99 N.H. 444, 447. There is no suggestion in the case that the benefit found to have been received by the "estate" was in preservation or maintenance of the real estate. The defendant does not question that the estate also consisted of household furnishings and furniture, stocks, bonds, and savings accounts; and that some or all of the personal estate was kept in the decedent's house. It cannot be said as a matter of law that pending appointment of a legal representative, preservation of the personalty of the estate could not reasonably be found to warrant its protection by a custodian in the person of the housekeeper, and the reasonable use of oil to heat the premises where the assets were located, so that she might perform that task. See Emery v. Berry, 28 N.H. 473, supra, 483. Such care may well have been less expensive than commercial storage elsewhere would have been. Moreover, to the extent that any unconsumed oil came to the possession and control of the defendant's predecessor in the office of administrator, it was personal property and the administrator was chargeable with its value if it inured to the benefit of the estate, as the court has found. Its cost accordingly became an allowable credit in the administrator's probate accounting. No reason appears why the cost of oil consumed before appointment of an administrator should not also be found an incidental and allowable expense of protecting the personalty.
In the absence of any record of the proceedings below, this court is bound by the express and implied findings of the trial justice. Racine v. Armstrong, supra.
Judgment on the verdict.
All concurred.