Opinion
09-18-1902
STATE v. BOGGS et al.
Herbert H. Ward, Atty. Gen., for the State. L. Irving Handy and John W. Brady, for defendants.
One Boggs and others were charged with breaking and entering a building in the daytime. Indictment quashed.
Argued before , and SPRUANCE and BOYCE, JJ.
Herbert H. Ward, Atty. Gen., for the State.
L. Irving Handy and John W. Brady, for defendants.
The defendants were indicted as above under section 1, p. 940, Rev. Code. The indictment alleged that the defendants "feloniously" broke into a building in the daytime, etc.
Mr. Handy, for defendants, moved to quash the indictment on the ground that the statute (section 1, p. 940, Rev. Code) makes this offense a misdemeanor, whereas the indictment charges it as a felony.
Mr. Ward: However felonious it might be, the words "willfully" and "unlawfully" are left out, and I consider it a fatal defect.
LORE, C. J. We order the indictment quashed.
(75 Vt. 114)
CARPENTER v. STOWE'S ESTATE. (Supreme Court of Vermont. Windham. Nov. 19, 1902.)
ADMINISTRATOR—ACCOUNTING—PROCEEDS OF REAL ESTATE.
1. Under V. S. 2400, providing that an administrator shall be chargeable with the proceeds of real estate sold, he having sold real estate for cash, and taken a bag, represented by the purchaser to contain the full amount, and on counting it one or two days later found that it was short, and merely charged the purchaser with the shortage, without saying anything to him, his account is chargeable with the full purchase price.
Exceptions from Windham county court; Rowell, Judge.
Appeal from the probate court, wherein A. P. Carpenter, administrator of Titus Stowe's estate, presented the account of said Titus Stowe as administrator of Israel Stowe's estate. Prom a judgment making the estate chargeable with the sum in question, the plaintiff brings exceptions. Affirmed.
Argued before MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.
A. P. Carpenter and O. E. Butterfield, for plaintiff. Clarke C. Fitts and Arthur O. Spencer, for defendant.
HASELTON, J. Carpenter was administrator of the estate of Titus Stowe, and as such administrator presented to the probate court the account of Titus Stowe as administrator of the estate of Israel Stowe. One item in the account charged Titus Stowe, administrator, with $2,200 as cash received on the sale of the home farm of Israel Stowe. The administrator de bonis non of Israel Stowe's estate claimed that in the administration account of Titus Stowe the sum of $2,300, instead of $2,200, should be charged on account of the sale of said farm. The case came into county court on appeal, and was heard by the court on an agreed statement of facts. It appeared that under due authority from the probate court said Titus, as such administrator, made a cash sale for $2,300 of the farm in question to his brother, Warner Stowe; that Titus delivered the deed of the farm to Warner, and that Warner at the same time handed to Titus a bank book good for $1,500, and a bag, which Warner said contained $800 in gold; that Titus took the bag without counting the gold and without opening the bag, and that he kept it unopened for a day or two, when he took it to a savings bank for the purpose of depositing its contents; that the bag was then opened, and found to contain only $700; that Titus died shortly afterwards, and that $2,200, instead of $2,300, was all that was ever actually received by Titus for the farm. It did not appear that Titus said anything to Warner about the shortage, but on a book kept by Titus as administrator was found an entry in his own handwriting charging Warner with $100, "to error in counting gold topay for farm." It was agreed that the estate of Israel Stowe was solvent, that Warner was an heir, and that his distributive share would exceed $100 above any orders accepted by the administrator. The court rendered a judgment by which the estate of Titus Stowe was made chargeable in the sum of $2,300 on account of the farm transaction. To this judgment the plaintiff excepted.
We think that the estate of Titus Stowe was properly chargeable with the full cash price for which the farm in question was sold. This cash price must, in fairness, be considered the proceeds of the sale. See V. S. 2400. It does not, however, follow from this conclusion that the administrator of Titus Stowe's estate cannot collect from Warner the $100, if, in fact, it has not been paid.
Judgment affirmed.