Ancestors of Tim Farr and The Descendants of Stephen Farr


Gage Hughes AVERY was born on 6 Jan 1880 in Bellevue, Eaton, Michigan, United States. Gage married Ethel FARR on 27 Jun 1905 in Onekama, Manistee, Michigan, United States.

Ethel FARR [Parents] was born on 10 Mar 1880 in New York, United States. Ethel married Gage Hughes AVERY on 27 Jun 1905 in Onekama, Manistee, Michigan, United States.

They had the following children.

  F i Margaret Farr AVERY was born on 24 Oct 1906. She died on 2 Dec 2005.

Jacob FARR [Parents] [scrapbook] was born on 8 Sep 1780 in Chesterfield, Cheshire, New Hampshire, United States. He died 1, 2 on 1 May 1864 in Bradford, Orange, Vermont, United States from of paralysis. He was buried in Corinth, Orange, Vermont, United States. Jacob married Betsey TAPLIN about 1807 in Corinth, Orange, Vermont, United States.

Jacob was counted in a census 3 in 1850 in Corinth, Orange, Vermont, United States. He was counted in a census 4 in 1860 in Corinth, Orange, Vermont, United States.

DEATH: Father listed as Jacob and mother listed as Rhoda which turns out to be a transcription error. In the original, FHL film #2110573, the name is spelled "Phebe".

Betsey TAPLIN [scrapbook] was born in 1786 in Massachusetts, United States. She died on 10 Nov 1862 in Corinth, Orange, Vermont, United States. Betsey married Jacob FARR about 1807 in Corinth, Orange, Vermont, United States.

Betsey was counted in a census 1 in 1850 in Corinth, Orange, Vermont, United States. She was counted in a census 2 in 1860 in Corinth, Orange, Vermont, United States.

DEATH: "ae. 76 yrs."

They had the following children.

  M i Zelotas FARR was born on 16 Jul 1808. He died on 15 Jan 1857.
  M ii Chester N. FARR was born on 20 Oct 1809.
  M iii Amos FARR was born on 27 Feb 1811. He died on 11 Feb 1902.
  F iv Levina T. FARR was born on 7 Mar 1813.
  M v Horace FARR was born about 1820. He died on 23 Oct 1877.
  F vi Susan FARR was born on 18 Oct 1825.
  M vii
Jacob Edwin FARR was born 1 about 1830 in of Corinth, Orange, Vermont, United States.

Jacob was counted in a census 2 in 1850 in Corinth, Orange, Vermont, United States.



Edwin J. Farr, M. D., came to Kenosha in 1855, and the following year removed to Prairie du Sac, Sauk county, and in 1857 to Mauston, Juneau county, and in 1869 to Eau Claire.  He was born at Corinth, Orange county, Vermont, August 24, 1832.  He was educated at Castleton Medical College and graduated in 1851, and practiced at white River Junction, Vermont, until he came to Wisconsin.  He was assistant surgeon of the Second Wisconsin Volunteer Infantry for five months, and with Thirtieth Wisconsin Regiment for nearly three years.  He was post surgeon at Ft. Sully from July, 1863, to October, 1864, and had charge of the prison hospital at Louisville from January to August, 1865.

Dr. Farr was mayor of the city of Eau Claire and railroad surgeon for the Chicago, St. Paul, Minneapolis & Omaha and the Wisconsin & Minnesota Railway Companies.  He was a member of the A. F. & A. M. (Grand High Priest and Grand Master), I. O. O. F. and A. O. U. W.  He was married at White River Junction in January, 1855, to Emily L. Sawyer.  They had two children, twins:  Ewin B. and Emily B., born August 14, 1867.  Dr. Farr died July 10, 1914.

-Transcribed from the "History of Eau Claire County Wisconsin, 1914," page 318

Amos FARR [Parents] was born 1 on 6 Nov 1786 in Corinth, Orange, Vermont, United States. He died 2 on 30 Sep 1861 in Bradford, Orange, Vermont, United States. Amos married 3 Polly HADLEY on 20 Mar 1845 in Bradford, Orange, Vermont, United States.

Amos was counted in a census 4 in 1860 in Bradford, Orange, Vermont, United States.

Other marriages:
MOULTON, Anna

Polly HADLEY was born on 11 Nov 1799 in Corinth, Orange, Vermont, United States. She died on 11 Sep 1856 in Bradford, Orange, Vermont, United States. Polly married 1 Amos FARR on 20 Mar 1845 in Bradford, Orange, Vermont, United States.


Amos FARR [Parents] was born 1 on 6 Nov 1786 in Corinth, Orange, Vermont, United States. He died 2 on 30 Sep 1861 in Bradford, Orange, Vermont, United States. Amos married Anna MOULTON on 8 Jun 1813 in Corinth, Orange, Vermont, United States.

Amos was counted in a census 3 in 1860 in Bradford, Orange, Vermont, United States.

Other marriages:
HADLEY, Polly

Anna MOULTON was born on 19 Nov 1792 in Bradford, Orange, Vermont, United States. She died on 19 May 1844 in Bradford, Orange, Vermont, United States. She was buried in Upper Plains, Bradford, Orange, Vermont. Anna married Amos FARR on 8 Jun 1813 in Corinth, Orange, Vermont, United States.

They had the following children.

  F i
Diantha FARR was born in BEF ABT 1814 in Bradford, Orange, Vermont, United States.
  M ii
Denison FARR was born on 29 Nov 1819 in Corinth, Orange, Vermont, United States.
  M iii Moses Denison FARR was born on 29 Nov 1819. He died on 17 May 1887.

Loren FARR [Parents] [scrapbook] was born in 1790 in Piermont, Grafton, New Hampshire, United States. He died on 31 Mar 1869 in Bradford, Orange, Vermont, United States. Loren married 1 Joanna Collins KELLEY on 8 Feb 1816 in Bradford, Orange, Vermont, United States.

DEATH: Parents listed as Jacob and Phebe Farr.

Joanna Collins KELLEY was born on 4 Sep 1792 in Sandown, Rockingham, New Hampshire, United States. She died on 25 May 1878 in Vermont, United States. Joanna married 1 Loren FARR on 8 Feb 1816 in Bradford, Orange, Vermont, United States.

Marriage Notes:

CENSUS: 3 sons and 1 daughter.

They had the following children.

  F i Hariat Lovel FARR was born on 5 Nov 1821.
  M ii Hartwell Lovel FARR was born on 5 Nov 1821. He died on 15 Aug 1891 from of dropsy.
  M iii George Washington Wilton FARR was born on 11 Sep 1828.
  F iv
Joanna C FARR was born in Apr 1830 in Bradford, Orange, Vermont, United States. She died 1 on 7 Feb 1831 in Bradford, Orange, Vermont, United States.

Benjamin FARR [Parents] was born 1 on 15 Feb 1799 in Corinth, Orange, Vermont, United States. Benjamin married 2 Mary STEVENS on 10 Nov 1824 in Corinth, Orange, Vermont, United States.

Mary STEVENS was born about 1806 in Vermont, United States. She died on 18 Mar 1866 in Lunenburg, Essex, Vermont, United States. Mary married 1 Benjamin FARR on 10 Nov 1824 in Corinth, Orange, Vermont, United States.

They had the following children.

  M i Horatio Nelson FARR was born on 24 Feb 1833. He died on 29 Jun 1911.

Roswell FARR [Parents] [scrapbook] was born in 1805 in Corinth, Orange, Vermont, United States. He died 1, 2 on 14 Jan 1864 in Cabot, Washington, Vermont, United States from of consumption. Roswell married 3, 4 Fanny M HARVEY on 18 Jun 1842 in Woodbury, Washington, Vermont, United States.

Fanny M HARVEY [scrapbook] was born on 18 Sep 1818 in Woodbury, Washington, Vermont, United States. She died on 23 Apr 1901. She was buried in Harvey Cemetery, Woodbury, Washington, Vermont, United States. Fanny married 1, 2 Roswell FARR on 18 Jun 1842 in Woodbury, Washington, Vermont, United States.

Fanny was also known 3 as Fannie Hardy.

They had the following children.

  F i
Minnie Augusta FARR was born 1 on 12 Dec 1860 in Cabot, Washington, Vermont, United States. She died on 23 Jul 1872 in Cabot, Washington, Vermont, United States. She was buried in Harvey Cemetery, Woodbury, Washington, Vermont, United States.

Hyrcanus FARR [Parents] [scrapbook] was born on 18 Aug 1808 in Corinth, Orange, Vermont, United States. He died 1 on 17 Aug 1878 in Cabot, Washington, Vermont, United States. He was buried in Woodbury, Washington, Vermont, United States. Hyrcanus married Dorothy Paige SMITH "Dollie" on 13 Dec 1827 in Vermont, United States.

Hyrcanus was also known as Artemas Farr.

Other marriages:
RUSCOE, Sarah B.

New England reporter: all cases determined in the courts of last resort, as follows : Maine, Supreme judicial court; New Hampshire, Supreme court; Vermont, Supreme court; Massachusetts, Supreme judicial court; Rhode Island, Supreme court; Connecticut, Supreme court of errors, Volume 5 (Google eBook)

Oliver W. FARR
v.
Hiram PUTNAM et at.

1. On the death of an insane ward, his administrator took possession of his estate, with the consent of the guardian. The whole conduct of the guardian showed that be did not intend to retain a lien on the corpus of the property for what was due him, until after the sale of the property, when it appeared that the estate was insolvent; but he expected to be first paid out of the avails of what was sold. Held:

(a) That, if the guardian ever had an equitable lien, he had lost it.

(b) That he had no lien on the homestead; for that also went into the possession of the administrator, with the guardian's consent.

2. On a bill brought in such case to procure a foreclosure of the lien, the court declined to decide whether the guardian had a superior right to the avails of the property after its sale; or whether, on a bill properly drawn, he had such right.

(Orleans Decided February 2, 1888.)

BILL to foreclose an equitable lien. Heard on the pleadings and the report of a special master, February Term, 1887, Veazey, Chancellor. Decree that the bill be dismissed. Affirmed.

The defendants were Hiram Putnam, Sarah B. Farr, J. P. Lamson, and Mrs. J. P. Lamson.

On January 9, 1877, the orator, being a son of Hyrcanus Farr, was appointed his guardian by the probate court; and he remained such until the death of said Hyrcanus, August 17, 1878. Soon after the decease of said Farr, the defendant Putnam was appointed administrator of his estate; and on October 29,1878, commissioners to adjust claims against the estate were appointed. In 1840 the defendant, Sarah B. Farr, was married to one Ruscoe; and they lived together as husband and wife for about four years, when he deserted her and went to parts unknown. In 1852 a marriage ceremony was performed between the said Eyrcanus and said Sarah B., she believing that said Ruscoe was dead, and the said Hyrcanus and Sarah B. lived together as husband and wife until his death, both thinking that she was his lawful wife; and what property he left at his death was acquired by the united exertions of both. But the said Sarah B. was mistaken; and said Ruscoe was alive, and resided in Canada. The said Hyrcanus had no children by the said Sarah B., but had a large family of children by a former marriage. After their marriage said Hyrcanus and Sarah B. lived in Woodbury for about live years, and then they moved to Cabot, havinir purchased a farm situated in Cabot and Woodbury, and lived on this farm till September 7, 1876. On that day they left their said home for the purpose of visiting his children in Stannard and Craftsbury. When they left they intended to be absent only two weeks, and their sole object was to visit their friends. For some two years prior to this time the said Hyrcanus had been occasionally afflicted with epileptic fits, and was physically and mentally somewhat impaired. Within an hour after reaching the house of the orator in Craftsbury, said Hyrcanus had a severe fit, and was also stricken with paralysis. For a day or two he was unconscious, and remained helpless until his death.

After the paralytic shock he occasionally had fits, and would be out of his head for a while, and then recover his consciousness, but was mentally and physically quite weak. The said Hyrcanus was not in a condition to be removed to his home in Cabot, and so remained with his son, the said Oliver W. Farr, until his decease. During the last six months of his life he was without his reason. The said Sarah B. remained at the orator's house during the sickness of said Hyrcanus, and went to Cabot at the time of his burial, and, remaining there some weeks, she returned to Craftsbury. After a short time she went back to Cabot, and worked out at different places until the homestead was set out to her from the old farm, on the 20th day of November, 1880. The farm was rented to one Yaw while the said Hyrcanus was sick in Craftsbury; but the master found that, if he had been " able to return to his old home, ha and the said Sarah B. would have so returned." "I do not think that, at the time of said agreement to lease to Yaw, Hyrcanus had decided to permanently abandon his old homestead as and for a homestead, but he was at that time satisfied he would not !for the term of the lease be able to return. And that he then had reason to believe, and did believe, there were grave doubts as to his ever being able to return to Cabot."

The first meeting of the commissioners was at the orator's house, January 7, 1879. The defendants Putnam and J. P. Lamson, Esq. an attorney, representing certain creditors, were present. The orator and said Putnam and Lamson finally agreed that the orator should be allowed $750 for "keeping ward and wife, and services of self and family caring for same, two years." The next day the orator settled his guardianship account with the probate court, and said account was allowed at $750. Immediately after the orator was appointed guardian, January 9, 1877, he took possession of the ward's property, and had control and management of it until the ward's decease. The master found as to surrendering of possession of the property to the administrator by the guardian, as follows:

It is claimed by the defendants that it was agreed at that time that the amount allowed orator by the probate court, on the basis of an allowance of $750 for board and care, as before stated, should be treated as a common debt, and that he should share with the other creditors in the estate. Still, the defendant Putnam admitted upon the stand that he always supposed the orator was to be paid the amount due him as guardian after payment of charges for settlement of estate and amount allowed the widow, and before other creditors were paid. I am unable to find that said Oliver ever understandingly agreed to stand in common with the other creditors so far as his guardian account was concerned, but I do find that he always supposed and expected his guardian account would be paid first, and in preference to other claims. * * *

At the time of the settlement of said guardian's account it was ascertained that there was considerable personal property on hand, the property of said estate, in the possession of said orator; and the farm at Cabot and Woodbury was still unsold and a part of said estate.

After the expiration of Yaw's term, under his lease of the Cabot farm, the orator, as guardian,leased it to one Henry Wheeler, to carry on at the halves, who was in possession of said farm at the time of the death of said Hyrcanus. Some little time after the decease of said Hyrcanus, appraisers were appointed on his estate. Certain of the personal property of said estate was at the orator's in Craftsbury, and the balance at the old homestead in Cabot. The orator was with the appraisers at Craftsbury when they were in the discharge of their duty, and pointed out the property there belonging to said estate, and was also with them when they appraised the personal property and farm at Cabot.

Said Wheeler was on the Cabot and Woodbury farm at the time the appraisers were there to appraise the property. Wheeler remained on said farm through the winter following the death of the old gentleman, under an arrangement made with the administrator, Putnam, to stay and feed out the hay and take care of the stock; and in the spring of 1879 said administrator rented said farm to Jacob Farr, one of orator's brothers, and said Jacob Farr paid for the rent of said farm to said administrator. The orator knew this, and made no objection thereto.

The administrator took possession of the personal and real estate of the intestate, and this was done with the consent of the orator. But I find that the orator, at the time the administrator took such possession, understood and expected that said administrator was going to sell said property, and from the avails thereof he was first to be paid, in full, the amount allowed him in the settlement of his guardian account. The administrator supposed and expected that would be the result; but he did not feel authorized in paying said allowance till so directed by the probate court, and he never made any effort for such an order by said court.

In the fall of 1880 Sarah B. petitioned the probate court for the appointment of commissioners to set out a homestead and dower from the premises belonging to said Hyrcanus at the time of his decease.

The commissioners, on the 20th day of November, 1880, set out a homestead to Sarah B. Farr from said premises, and returned their report and warrant into the probate court on the 27th day of December, 1880; and the report was accepted and ordered recorded.

The orator had no knowledge of such proceedings until after the report of the commissioners had been returned to the probate court and accepted by it; but he did learn of the proceedings in time to take an appeal from the decree and order of the court. The appeal was allowed and duly entered in the County Court for Orleans County, at the February Term, 1881, and continued to the September Term 1881. At this term, defendant Putnam was dismissed as an improper party, and it was ordered and adjudged by the court that the decree of the probate court be affirmed; and the cause was ordered to be certified back to the probate court. The master found:

The orator offered testimony tending to show that there was no trial in said cause, that no issue was formed therein, but that said judgment was rendered by the court without any trial.

The defendants objected to the admission of such testimony for the reason that the orator is bound by the record; and that such testimony is immaterial and incompetent, and an attempt to collaterally impeach a judgment of a court of competent jurisdiction, and does not tend to establish any issue made by any of the pleadings.

I deemed it best to, and did, admit the testimony, subject to the objection and exceptions by defendants. I find, from the testimony thus admitted, that at said last-named term of Orleans County Court the orator in this suit, being the plaintiff in that cause, filed an affidavit for a continuance of said cause to the next term of said court; and there was a hearing upon that question, and the court refused to continue the case. The said Farr's counsel announced that he could not try the case, and the court thereupon rendered judgment as herein before stated.

The judgment so rendered and ordered to be certified to the probate court was so certified, and the certificate thereof was filed in the probate court on the 21st day of December, 1881.

The warrant issued to the commissioners commenced:

Whereas Hyrcanus Farr, late of Craftsbury, in said district, deceased, intestate, died seised and possessed of the following described real estate, to wit: It being the home farm where the said Hyrcanus Farr last resided in said Cabot, containing about 160 acres of land, said land being situated in the towns of Cabot and Woodbury, in said county, and out of which Sarah Farr, the widow of said deceased, is entitled to a homestead, and said widow is also entitled to dower; therefore, by the authority of the State of Vermont, you are hereby appointed commissioners, and authorized to appraise all the real estate whereof said deceased died seised. * * * When you have completed your inventory you will then proceed to set out from the dwelling-house, outbuildings, and lands used in connection therewith, and used and kept by said Hyrcanus Farr at the time of his decease, as a homestead, to said Sarah Farr.

As to the administrator's account, it was found that it came under the consideration of the probate court, after due notice, on the 18th day of July, 1881; that although no one appeared to object, at the request of the orator, it was continued to October 26, 1881, and was again continued till December 27, 1881, when said account was examined, sworn to, allowed, and ordered recorded, and is as follows:

Hiram Putnam,

Administrator of the Estate of Hyrcanus Farr, late of Craftsbury, Deceased.

In Account with Said Estate.

To the Estate, Dr. To amt. of real estate and personal property as per appraisal J2.R38.53

To cash rec'd for property not appraised. 13 SO To Income from real estate 113 10

$2,065 13

To the Same Estate, Cr. By homestead set to widow out of real estate $600.00

Hy shrinkage on appraisal, as per "Schedule A"... 1,212 07

By household poods assigned to widow 128 12

* * * Then this account was examined and sworn to, the question of its allowance being continued, awaiting the result of a matter pending in Orleans County Court.

Attest, O. H. Austin, Judge.

After the homestead was set out to the said Sarah B. Farr, the administrator, having obtained license to sell the real estate of his intestate, advertised for sale, and sold, at public auction, all the residue of the real estate of which the intestate died seised, to the said Sarah B. Farr, for the sum of $400, she being the highest bidder for the same.

And, in accordance with said sale, said Putnam, as such administrator, under bfe license aforesaid, executed a deed of the same to the said Sarah B., and she paid him therefor.

And all the personal property belonging to the estate of the said Hyrcanus, which had not previously been disposed of, was sold at the time of said auction. The orator knew that the administrator, Putnam, had applied for, and obtained, a license to sell all the real estate of which the said Hyrcanus Farr died seised, a long time previous to the time said homestead was set out; but he at all times claimed that he must be paid in full the amount of his guardian account from the avails of the property of which the said Hyrcanus died seised.

At the time the defendant Sarah B. bid off the balance of the said premises for $400, she was in need of funds with which to pay for the same, and she applied to the defendant Abbie A. Lamson for a loan of said money. Mrs. Lamson had money which she held in her own right, and passed over to her husband, J. P. Lamson, a check for the money required by the said Sarah B., and he obtained the currency therefor. At the time the administrator deeded said real estate, so sold at auction, to the said Sarah B., the said J. P. Lamson, acting for and on behalf of his wife, passed over to the said Sarah the sum of $430. And Mrs. Farr therefor, on the 20th day of April, 1881, executed and delivered a mortgage of said premises, including the homestead, to Mrs. Lamson, to secure the payment of said sum of money, as specified in two promissory notes then executed and delivered to said J. P. Lamson for his said wife.

The prayer of the bill was that defendants be foreclosed from all right in the said estate unless they paid the said $750. Mr. JJ- H. Thompson, for the orator: The orator, having been appointed guardian of Hyrcanus Farr under the provisions of Rev. Laws, 2436, 2438, until legally discharged from that appointment, had the possession and management of the estate of his ward, the care and custody of his person, and the care and custody of such members of his family as were dependent upon said ward for support.
Rev. Laws, § 2445; Waterman v. Wright, 36 Vt. 165,

By his appointment as guardian, the orator became a trustee, and thereby assumed the liabilities, and acquired the legal and equitable rights, of a trustee as to his ward's estate.

Rev. Laws, §§ 2447, 2285; 3 Pom. Eq. Jur. §§ 1088. 1097.

As trustee or guardian, the orator had an equitable lien upon his ward's estate, which took precedence of all other claims against the estate; and all persons taking said property with knowledge of said orator having been guardian took the same subject to his lien.

See Perry, Tr. 1st ed. 907, 910; Schoul. Bom. Rel. pp. 464,465; 2 Pom. Eq. Jur. B 1085; Rensselaer & 8. R. Co. v. Miller, 47 Vt. 152; Field v. Wilbur, 49 Vt. 165.
The defendant Abbic A. Lamson had constructive notice of orator's rights by virtue of proceedings in probate court. Again, she cannot stand as an innocent purchaser for value without notice, as she had actual notice; as her agent, attorney, and husband, J. P. Lamson, who acted for her, had full knowledge, at the time of taking her mortgage, of the equitable lien of the orator on said real estate.

Story, Ag. 140, 140a/ Bart v. Farmers & M. Bank, 33 Vt. 253.

A widow takes a homestead by operation of the law which says that, on the death of a housekeeper or head of a family leaving a widow or minor children, "his homestead shall pass to and vest in such widow or children."

Rev. Laws, g§ 1898, 1899.

The widow takes the homestead by virtue of her relation as wife to the deceased, the same as she does dower which does not depend on the contingency of dower being set out.

Dummerston v. Newfane, 87 Vt. 13; Johnson v. Johnson, 41 Vt. 467; Grant v. Parham, 15 Vt. 649.

The setting out of a homestead is a proceeding to sever and partition, and not to give title. If no title or homestead exists, the proceeding goes for nothing.

Rev. Laws, § 1970; Grice v. Randall, 23 Vt. 243; Freem. Judg. § 304.

The orator is not estopped by the judgment in the homestead proceedings.

Freem. Judg. 276, 281, 803.

He stands as a mortgagee of the property he is pursuing. The right under a mortgage is not affected by the setting out of a homestead.

Goodall v. Boardman, 53 Vt. 92.

The court of chancerv has jurisdiction.

3 Pom. Eq. Jur. 1088, 1097; 1 Pom. Eq. Jur. § 100; Harris v. Harris, 44 Vt. 820; Field v. Torrey, 7 Vt. 372.

Messrs. J. P. Lamson and Bates & May,

for defendants:

If the orator had any equitable lien at the time his father died, he lost it by voluntary delivery of property to Mr. Putnam, as administrator, to be administered as assets of the estate.

Richardson v. Merrill, 82 Vt. 27.

The orator is estopped from asserting his present claim.

Stone v. Fairbanks, 58 Vt. 145.

The guardianship ceased on the death of the ward, and it was the duty of the orator then "to pay over and deliver the estate and effects remaining in his hands * * * to persons entitled to same," namely, the administrator.

8 Redf. Wills, p. 457, § 56; Rev. Laws. 2447, 2488.

The probate court has jurisdiction of the appointment, power, duties, and rights of guardians and wards, and settlement of estates.

Rev. Laws, § 2018; Lathrop v. Hitchcock, 38 Vt. 496; Boyden v. Ward, 38 Vt. 628; 2a Vt. 50.

The decree of the probate court, affirmed by the county court, as to the homestead of Mrs. Farr, concludes the orator both in law and equity.

Atwood v. Robbins, 35 Vt.'580; 82 Vt. 472; 18 Vt. 77; 11 Vt. 148; 34 Vt.865;

Leach v. Leach, 51 Vt. 440; 3 Vt. 400; 16 Vt. 813; Grice v. Randall, 28 Vt. 239:

Stone v. Peasley, 28 Vt. 716; Lenehan v. Spaulding, 67 Vt. 115; Gaujolle v.

Curtis, 80 U. 8. 18 Wall. 465 (20 L. ed. 507); Roderigas v. East River Sav. Inst. 63N.Y. 460; S. C. 20 Am. Rep. 555; Gates v. Treat, 17 Conn. 392; Freem. Judg. 256, 272, 818; Thomp. Homesteads, § 614; 38 Tex. 491; 6 Cal. 234; 2 Bish. Marr. & D. 765; 84 La. 805; 48 Mo. 560; 17 Ind. 183; Freem. Judg. § 819a.

The guardian had no right to sell the real estate.

Rev. Laws, § 2477.

If he had such license the wife must join. Rev. Laws, § 1910.

The real estate of Hyrcanus was never charged to the guardian and was never under his control.

Munroe v. Holmes, 9 Allen, 244; 13 Allen, 109.

There is no such equitable lien as claimed bv orator in this case.

1 Story, Eq. Jur. § 506 et seq.; 2 Story, Eq. § 1216; Schoul. Exrs. § 264.

But if the unpaid balance is to be treated as a lien upon the property, it should not be paid before the reasonable, necessary expenses of administration are satisfied.

2 Story, Eq. Jur. § 1246.

The case of Pingree v. Goodrich, 41 Vt. 47, seems to be a full and complete answer to orator's claim.

In order to render the orders and decrees of the probate court void, it must appear upon the face of the record that the court has proceeded in a manner prohibited or not authorized by law.

Probate Court v. Winch, 57 Vt. 282. See Byram v. Byram, 27 Vt. 285; True v. Morrill, 28 Vt. 672.

The orator can reach this balance in the hands of the administrator by applying to the probate court, and, if dissatisfied, by appeal.

Dans v. Gaines. 104 U. S. 386 (26 L. ed. 757); Rorer, Jud. Sales, § 470.

The decree of the probate court allowing 1172.12 to Mrs. Farr was final.
Richardson v. Merrill, 32 Vt. 27; Leach v. Leach, 51 Vt. 440; 3 Vt. 400; 16 Vt. 313. See Probate Court v. Van Duzer, 13 Vt. 135.

Rowell, J., delivered the opinion of the court:

Before and at the time of the death of Hyrcanus Farr, an insane person, on August 17, 1878, the orator was his guardian.

By his bill the orator seeks to subject his ward's estate in the hands of the administrator and of the other defendants, as far as they have had to do with it to a first charge or lien for the payment of the balance found due him on settlement of his guardianship account in the probate court on January 8, 1879. The bill goes upon the ground that, in the orator's bands, his ward's property was chargeable with the payment of what was due him as guardian; but that the property was unlawfully, and against his will, taken from his possession by the administrator, and therefore is still chargeable in his favor by way of an equitable hen or mortgage for the foreclosure of which he prays.

But the findings of the master do not sustain the allegation that the property was taken from the orator unlawfully and against his will. On the contrary, it appears that the administrator took it with his consent, though with an understanding and expectation, on his part, that it would be sold, and he paid from the proceeds. And the administrator expected the result would be that he would be thus paid; but he did not feel authorized to make payment without an order of the probate court, which he has never attempted to obtain.

It also appears that the orator was with the appraisers when they appraised the property of the estate, and pointed out some of it to them; that before the property was sold he knew the administrator had obtained license to sell the real estate; and that at one time he bargained with the administrator to buy the whole estate for $1,350, but the trade fell through. During all this time it does not appear that the orator claimed any lien on the property, but only,when he said anything about it, that he should be first paid out of the proceeds.

The orator concedes that if he never had a lien on the property, or if he had one and has lost it, he cannot maintain his bill. Now, without undertaking to say whether he ever had a lien or not, we think, if he ever had one, he has waived and lost it. See what be has done. Everything shows that he did not intend to retain a lien on the corpus of the property itself in the hands of the administrator; for he consented to let it go into his hands, supposing and expecting he would sell it in due course of administration. And his consent was not, as claimed, on condition that be should be paid from the proceeds; but it was unconditional and absolute. How, then, can it be said that he intended to retain a lien on the property? It is clear that he did not so intend, not even as to the homestead; for that went into the hands of the administrator, with his consent, with the rest of the estate, and with the same expectation on his part that he was going to be paid out of the avails of the property sold; and at that time the estate appeared to be ample, aside from the homestead, to pay him, if he was to be preferred to other creditors; and that was what be expected; and he then neither claimed nor expected anything else; but now, the estate having been all sold except the homestead, and converted into money, it transpires that, by reason of the depreciation of the property in value from the appraisal, there is very little left of the avails with which to pay anybody. This makes the idea of setting up a lien on the property look very much like an afterthought on the part of the orator, conceived when, in the course of events, a necessity for it seemed to arise.

We have not inquired whether the orator has a superior right to be paid out of the avails of the property; for, if he has, he cannot assert it under his bill as drawn, certainly,if he could by a bill properly drawn and against proper parties.

This renders it unnecessary to consider the other points made in argument. Decree affirmed, and cause remanded.

DEATH: Death record names parents as Jacob and Hannah.

Dorothy Paige "Dollie" SMITH [scrapbook] was born 1 on 18 Jun 1804 in Hardwick, Caledonia, Vermont, United States. She died 2 on 25 Sep 1850 in Woodbury, Washington, Vermont, United States. She was buried in Harvey Cemetery, Woodbury, Washington, Vermont, United States. Dollie married Hyrcanus FARR on 13 Dec 1827 in Vermont, United States.

They had the following children.

  M i John FARR was born on 6 Jul 1828. He died on 22 Oct 1896.
  F ii Emily FARR was born in 1830. She died on 1 Jan 1865.
  M iii
Oliver W. FARR was born on 29 Jul 1831 in Vermont, United States. He died 1 on 20 Nov 1908 in Walden, Caledonia, Vermont, United States. He was buried in South Walden, Caledonia, Vermont, United States.

Oliver was counted in a census 2 in 1850 in Woodbury, Washington, Vermont, United States.
  M iv Edmond FARR was born on 11 Jul 1833.
  M v Benjamin A FARR was born on 21 Oct 1834. He died on 5 Feb 1889.
  F vi
Laura FARR was born in 1836 in Vermont, United States.

Laura was counted in a census 1 in 1850 in Woodbury, Washington, Vermont, United States.
  M vii Rufus H. FARR was born on 21 Mar 1839. He died on 12 Nov 1911.
  M viii Jacob W. FARR was born in Mar 1840. He died on 21 Jun 1918 from of Hemoplegia.
  F ix
Dorothy FARR was born in 1842 in Vermont, United States.

Dorothy was counted in a census 1 in 1850 in Woodbury, Washington, Vermont, United States. She was counted in a census 2 in 1860 in Cabot, Washington, Vermont, United States.
  M x
Artemas G FARR was born in 1843 in Vermont, United States.

Artemas was counted in a census 1 in 1850 in Woodbury, Washington, Vermont, United States.
  M xi William H. FARR was born on 18 Aug 1844. He died on 2 May 1915 from of lanerma.
  F xii Sarah H. FARR was born about 1845. She died on 10 Sep 1932 from of arterial sclerosis.

Hyrcanus FARR [Parents] [scrapbook] was born on 18 Aug 1808 in Corinth, Orange, Vermont, United States. He died 1 on 17 Aug 1878 in Cabot, Washington, Vermont, United States. He was buried in Woodbury, Washington, Vermont, United States. Hyrcanus married 2, 3 Sarah B. RUSCOE on 23 Sep 1852 in Woodbury, Washington, Vermont, United States.

Hyrcanus was also known as Artemas Farr.

Other marriages:
SMITH, Dorothy Paige

New England reporter: all cases determined in the courts of last resort, as follows : Maine, Supreme judicial court; New Hampshire, Supreme court; Vermont, Supreme court; Massachusetts, Supreme judicial court; Rhode Island, Supreme court; Connecticut, Supreme court of errors, Volume 5 (Google eBook)

Oliver W. FARR
v.
Hiram PUTNAM et at.

1. On the death of an insane ward, his administrator took possession of his estate, with the consent of the guardian. The whole conduct of the guardian showed that be did not intend to retain a lien on the corpus of the property for what was due him, until after the sale of the property, when it appeared that the estate was insolvent; but he expected to be first paid out of the avails of what was sold. Held:

(a) That, if the guardian ever had an equitable lien, he had lost it.

(b) That he had no lien on the homestead; for that also went into the possession of the administrator, with the guardian's consent.

2. On a bill brought in such case to procure a foreclosure of the lien, the court declined to decide whether the guardian had a superior right to the avails of the property after its sale; or whether, on a bill properly drawn, he had such right.

(Orleans Decided February 2, 1888.)

BILL to foreclose an equitable lien. Heard on the pleadings and the report of a special master, February Term, 1887, Veazey, Chancellor. Decree that the bill be dismissed. Affirmed.

The defendants were Hiram Putnam, Sarah B. Farr, J. P. Lamson, and Mrs. J. P. Lamson.

On January 9, 1877, the orator, being a son of Hyrcanus Farr, was appointed his guardian by the probate court; and he remained such until the death of said Hyrcanus, August 17, 1878. Soon after the decease of said Farr, the defendant Putnam was appointed administrator of his estate; and on October 29,1878, commissioners to adjust claims against the estate were appointed. In 1840 the defendant, Sarah B. Farr, was married to one Ruscoe; and they lived together as husband and wife for about four years, when he deserted her and went to parts unknown. In 1852 a marriage ceremony was performed between the said Eyrcanus and said Sarah B., she believing that said Ruscoe was dead, and the said Hyrcanus and Sarah B. lived together as husband and wife until his death, both thinking that she was his lawful wife; and what property he left at his death was acquired by the united exertions of both. But the said Sarah B. was mistaken; and said Ruscoe was alive, and resided in Canada. The said Hyrcanus had no children by the said Sarah B., but had a large family of children by a former marriage. After their marriage said Hyrcanus and Sarah B. lived in Woodbury for about live years, and then they moved to Cabot, havinir purchased a farm situated in Cabot and Woodbury, and lived on this farm till September 7, 1876. On that day they left their said home for the purpose of visiting his children in Stannard and Craftsbury. When they left they intended to be absent only two weeks, and their sole object was to visit their friends. For some two years prior to this time the said Hyrcanus had been occasionally afflicted with epileptic fits, and was physically and mentally somewhat impaired. Within an hour after reaching the house of the orator in Craftsbury, said Hyrcanus had a severe fit, and was also stricken with paralysis. For a day or two he was unconscious, and remained helpless until his death.

After the paralytic shock he occasionally had fits, and would be out of his head for a while, and then recover his consciousness, but was mentally and physically quite weak. The said Hyrcanus was not in a condition to be removed to his home in Cabot, and so remained with his son, the said Oliver W. Farr, until his decease. During the last six months of his life he was without his reason. The said Sarah B. remained at the orator's house during the sickness of said Hyrcanus, and went to Cabot at the time of his burial, and, remaining there some weeks, she returned to Craftsbury. After a short time she went back to Cabot, and worked out at different places until the homestead was set out to her from the old farm, on the 20th day of November, 1880. The farm was rented to one Yaw while the said Hyrcanus was sick in Craftsbury; but the master found that, if he had been " able to return to his old home, ha and the said Sarah B. would have so returned." "I do not think that, at the time of said agreement to lease to Yaw, Hyrcanus had decided to permanently abandon his old homestead as and for a homestead, but he was at that time satisfied he would not !for the term of the lease be able to return. And that he then had reason to believe, and did believe, there were grave doubts as to his ever being able to return to Cabot."

The first meeting of the commissioners was at the orator's house, January 7, 1879. The defendants Putnam and J. P. Lamson, Esq. an attorney, representing certain creditors, were present. The orator and said Putnam and Lamson finally agreed that the orator should be allowed $750 for "keeping ward and wife, and services of self and family caring for same, two years." The next day the orator settled his guardianship account with the probate court, and said account was allowed at $750. Immediately after the orator was appointed guardian, January 9, 1877, he took possession of the ward's property, and had control and management of it until the ward's decease. The master found as to surrendering of possession of the property to the administrator by the guardian, as follows:

It is claimed by the defendants that it was agreed at that time that the amount allowed orator by the probate court, on the basis of an allowance of $750 for board and care, as before stated, should be treated as a common debt, and that he should share with the other creditors in the estate. Still, the defendant Putnam admitted upon the stand that he always supposed the orator was to be paid the amount due him as guardian after payment of charges for settlement of estate and amount allowed the widow, and before other creditors were paid. I am unable to find that said Oliver ever understandingly agreed to stand in common with the other creditors so far as his guardian account was concerned, but I do find that he always supposed and expected his guardian account would be paid first, and in preference to other claims. * * *

At the time of the settlement of said guardian's account it was ascertained that there was considerable personal property on hand, the property of said estate, in the possession of said orator; and the farm at Cabot and Woodbury was still unsold and a part of said estate.

After the expiration of Yaw's term, under his lease of the Cabot farm, the orator, as guardian,leased it to one Henry Wheeler, to carry on at the halves, who was in possession of said farm at the time of the death of said Hyrcanus. Some little time after the decease of said Hyrcanus, appraisers were appointed on his estate. Certain of the personal property of said estate was at the orator's in Craftsbury, and the balance at the old homestead in Cabot. The orator was with the appraisers at Craftsbury when they were in the discharge of their duty, and pointed out the property there belonging to said estate, and was also with them when they appraised the personal property and farm at Cabot.

Said Wheeler was on the Cabot and Woodbury farm at the time the appraisers were there to appraise the property. Wheeler remained on said farm through the winter following the death of the old gentleman, under an arrangement made with the administrator, Putnam, to stay and feed out the hay and take care of the stock; and in the spring of 1879 said administrator rented said farm to Jacob Farr, one of orator's brothers, and said Jacob Farr paid for the rent of said farm to said administrator. The orator knew this, and made no objection thereto.

The administrator took possession of the personal and real estate of the intestate, and this was done with the consent of the orator. But I find that the orator, at the time the administrator took such possession, understood and expected that said administrator was going to sell said property, and from the avails thereof he was first to be paid, in full, the amount allowed him in the settlement of his guardian account. The administrator supposed and expected that would be the result; but he did not feel authorized in paying said allowance till so directed by the probate court, and he never made any effort for such an order by said court.

In the fall of 1880 Sarah B. petitioned the probate court for the appointment of commissioners to set out a homestead and dower from the premises belonging to said Hyrcanus at the time of his decease.

The commissioners, on the 20th day of November, 1880, set out a homestead to Sarah B. Farr from said premises, and returned their report and warrant into the probate court on the 27th day of December, 1880; and the report was accepted and ordered recorded.

The orator had no knowledge of such proceedings until after the report of the commissioners had been returned to the probate court and accepted by it; but he did learn of the proceedings in time to take an appeal from the decree and order of the court. The appeal was allowed and duly entered in the County Court for Orleans County, at the February Term, 1881, and continued to the September Term 1881. At this term, defendant Putnam was dismissed as an improper party, and it was ordered and adjudged by the court that the decree of the probate court be affirmed; and the cause was ordered to be certified back to the probate court. The master found:

The orator offered testimony tending to show that there was no trial in said cause, that no issue was formed therein, but that said judgment was rendered by the court without any trial.

The defendants objected to the admission of such testimony for the reason that the orator is bound by the record; and that such testimony is immaterial and incompetent, and an attempt to collaterally impeach a judgment of a court of competent jurisdiction, and does not tend to establish any issue made by any of the pleadings.

I deemed it best to, and did, admit the testimony, subject to the objection and exceptions by defendants. I find, from the testimony thus admitted, that at said last-named term of Orleans County Court the orator in this suit, being the plaintiff in that cause, filed an affidavit for a continuance of said cause to the next term of said court; and there was a hearing upon that question, and the court refused to continue the case. The said Farr's counsel announced that he could not try the case, and the court thereupon rendered judgment as herein before stated.

The judgment so rendered and ordered to be certified to the probate court was so certified, and the certificate thereof was filed in the probate court on the 21st day of December, 1881.

The warrant issued to the commissioners commenced:

Whereas Hyrcanus Farr, late of Craftsbury, in said district, deceased, intestate, died seised and possessed of the following described real estate, to wit: It being the home farm where the said Hyrcanus Farr last resided in said Cabot, containing about 160 acres of land, said land being situated in the towns of Cabot and Woodbury, in said county, and out of which Sarah Farr, the widow of said deceased, is entitled to a homestead, and said widow is also entitled to dower; therefore, by the authority of the State of Vermont, you are hereby appointed commissioners, and authorized to appraise all the real estate whereof said deceased died seised. * * * When you have completed your inventory you will then proceed to set out from the dwelling-house, outbuildings, and lands used in connection therewith, and used and kept by said Hyrcanus Farr at the time of his decease, as a homestead, to said Sarah Farr.

As to the administrator's account, it was found that it came under the consideration of the probate court, after due notice, on the 18th day of July, 1881; that although no one appeared to object, at the request of the orator, it was continued to October 26, 1881, and was again continued till December 27, 1881, when said account was examined, sworn to, allowed, and ordered recorded, and is as follows:

Hiram Putnam,

Administrator of the Estate of Hyrcanus Farr, late of Craftsbury, Deceased.

In Account with Said Estate.

To the Estate, Dr. To amt. of real estate and personal property as per appraisal J2.R38.53

To cash rec'd for property not appraised. 13 SO To Income from real estate 113 10

$2,065 13

To the Same Estate, Cr. By homestead set to widow out of real estate $600.00

Hy shrinkage on appraisal, as per "Schedule A"... 1,212 07

By household poods assigned to widow 128 12

* * * Then this account was examined and sworn to, the question of its allowance being continued, awaiting the result of a matter pending in Orleans County Court.

Attest, O. H. Austin, Judge.

After the homestead was set out to the said Sarah B. Farr, the administrator, having obtained license to sell the real estate of his intestate, advertised for sale, and sold, at public auction, all the residue of the real estate of which the intestate died seised, to the said Sarah B. Farr, for the sum of $400, she being the highest bidder for the same.

And, in accordance with said sale, said Putnam, as such administrator, under bfe license aforesaid, executed a deed of the same to the said Sarah B., and she paid him therefor.

And all the personal property belonging to the estate of the said Hyrcanus, which had not previously been disposed of, was sold at the time of said auction. The orator knew that the administrator, Putnam, had applied for, and obtained, a license to sell all the real estate of which the said Hyrcanus Farr died seised, a long time previous to the time said homestead was set out; but he at all times claimed that he must be paid in full the amount of his guardian account from the avails of the property of which the said Hyrcanus died seised.

At the time the defendant Sarah B. bid off the balance of the said premises for $400, she was in need of funds with which to pay for the same, and she applied to the defendant Abbie A. Lamson for a loan of said money. Mrs. Lamson had money which she held in her own right, and passed over to her husband, J. P. Lamson, a check for the money required by the said Sarah B., and he obtained the currency therefor. At the time the administrator deeded said real estate, so sold at auction, to the said Sarah B., the said J. P. Lamson, acting for and on behalf of his wife, passed over to the said Sarah the sum of $430. And Mrs. Farr therefor, on the 20th day of April, 1881, executed and delivered a mortgage of said premises, including the homestead, to Mrs. Lamson, to secure the payment of said sum of money, as specified in two promissory notes then executed and delivered to said J. P. Lamson for his said wife.

The prayer of the bill was that defendants be foreclosed from all right in the said estate unless they paid the said $750. Mr. JJ- H. Thompson, for the orator: The orator, having been appointed guardian of Hyrcanus Farr under the provisions of Rev. Laws, 2436, 2438, until legally discharged from that appointment, had the possession and management of the estate of his ward, the care and custody of his person, and the care and custody of such members of his family as were dependent upon said ward for support.
Rev. Laws, § 2445; Waterman v. Wright, 36 Vt. 165,

By his appointment as guardian, the orator became a trustee, and thereby assumed the liabilities, and acquired the legal and equitable rights, of a trustee as to his ward's estate.

Rev. Laws, §§ 2447, 2285; 3 Pom. Eq. Jur. §§ 1088. 1097.

As trustee or guardian, the orator had an equitable lien upon his ward's estate, which took precedence of all other claims against the estate; and all persons taking said property with knowledge of said orator having been guardian took the same subject to his lien.

See Perry, Tr. 1st ed. 907, 910; Schoul. Bom. Rel. pp. 464,465; 2 Pom. Eq. Jur. B 1085; Rensselaer & 8. R. Co. v. Miller, 47 Vt. 152; Field v. Wilbur, 49 Vt. 165.
The defendant Abbic A. Lamson had constructive notice of orator's rights by virtue of proceedings in probate court. Again, she cannot stand as an innocent purchaser for value without notice, as she had actual notice; as her agent, attorney, and husband, J. P. Lamson, who acted for her, had full knowledge, at the time of taking her mortgage, of the equitable lien of the orator on said real estate.

Story, Ag. 140, 140a/ Bart v. Farmers & M. Bank, 33 Vt. 253.

A widow takes a homestead by operation of the law which says that, on the death of a housekeeper or head of a family leaving a widow or minor children, "his homestead shall pass to and vest in such widow or children."

Rev. Laws, g§ 1898, 1899.

The widow takes the homestead by virtue of her relation as wife to the deceased, the same as she does dower which does not depend on the contingency of dower being set out.

Dummerston v. Newfane, 87 Vt. 13; Johnson v. Johnson, 41 Vt. 467; Grant v. Parham, 15 Vt. 649.

The setting out of a homestead is a proceeding to sever and partition, and not to give title. If no title or homestead exists, the proceeding goes for nothing.

Rev. Laws, § 1970; Grice v. Randall, 23 Vt. 243; Freem. Judg. § 304.

The orator is not estopped by the judgment in the homestead proceedings.

Freem. Judg. 276, 281, 803.

He stands as a mortgagee of the property he is pursuing. The right under a mortgage is not affected by the setting out of a homestead.

Goodall v. Boardman, 53 Vt. 92.

The court of chancerv has jurisdiction.

3 Pom. Eq. Jur. 1088, 1097; 1 Pom. Eq. Jur. § 100; Harris v. Harris, 44 Vt. 820; Field v. Torrey, 7 Vt. 372.

Messrs. J. P. Lamson and Bates & May,

for defendants:

If the orator had any equitable lien at the time his father died, he lost it by voluntary delivery of property to Mr. Putnam, as administrator, to be administered as assets of the estate.

Richardson v. Merrill, 82 Vt. 27.

The orator is estopped from asserting his present claim.

Stone v. Fairbanks, 58 Vt. 145.

The guardianship ceased on the death of the ward, and it was the duty of the orator then "to pay over and deliver the estate and effects remaining in his hands * * * to persons entitled to same," namely, the administrator.

8 Redf. Wills, p. 457, § 56; Rev. Laws. 2447, 2488.

The probate court has jurisdiction of the appointment, power, duties, and rights of guardians and wards, and settlement of estates.

Rev. Laws, § 2018; Lathrop v. Hitchcock, 38 Vt. 496; Boyden v. Ward, 38 Vt. 628; 2a Vt. 50.

The decree of the probate court, affirmed by the county court, as to the homestead of Mrs. Farr, concludes the orator both in law and equity.

Atwood v. Robbins, 35 Vt.'580; 82 Vt. 472; 18 Vt. 77; 11 Vt. 148; 34 Vt.865;

Leach v. Leach, 51 Vt. 440; 3 Vt. 400; 16 Vt. 813; Grice v. Randall, 28 Vt. 239:

Stone v. Peasley, 28 Vt. 716; Lenehan v. Spaulding, 67 Vt. 115; Gaujolle v.

Curtis, 80 U. 8. 18 Wall. 465 (20 L. ed. 507); Roderigas v. East River Sav. Inst. 63N.Y. 460; S. C. 20 Am. Rep. 555; Gates v. Treat, 17 Conn. 392; Freem. Judg. 256, 272, 818; Thomp. Homesteads, § 614; 38 Tex. 491; 6 Cal. 234; 2 Bish. Marr. & D. 765; 84 La. 805; 48 Mo. 560; 17 Ind. 183; Freem. Judg. § 819a.

The guardian had no right to sell the real estate.

Rev. Laws, § 2477.

If he had such license the wife must join. Rev. Laws, § 1910.

The real estate of Hyrcanus was never charged to the guardian and was never under his control.

Munroe v. Holmes, 9 Allen, 244; 13 Allen, 109.

There is no such equitable lien as claimed bv orator in this case.

1 Story, Eq. Jur. § 506 et seq.; 2 Story, Eq. § 1216; Schoul. Exrs. § 264.

But if the unpaid balance is to be treated as a lien upon the property, it should not be paid before the reasonable, necessary expenses of administration are satisfied.

2 Story, Eq. Jur. § 1246.

The case of Pingree v. Goodrich, 41 Vt. 47, seems to be a full and complete answer to orator's claim.

In order to render the orders and decrees of the probate court void, it must appear upon the face of the record that the court has proceeded in a manner prohibited or not authorized by law.

Probate Court v. Winch, 57 Vt. 282. See Byram v. Byram, 27 Vt. 285; True v. Morrill, 28 Vt. 672.

The orator can reach this balance in the hands of the administrator by applying to the probate court, and, if dissatisfied, by appeal.

Dans v. Gaines. 104 U. S. 386 (26 L. ed. 757); Rorer, Jud. Sales, § 470.

The decree of the probate court allowing 1172.12 to Mrs. Farr was final.
Richardson v. Merrill, 32 Vt. 27; Leach v. Leach, 51 Vt. 440; 3 Vt. 400; 16 Vt. 313. See Probate Court v. Van Duzer, 13 Vt. 135.

Rowell, J., delivered the opinion of the court:

Before and at the time of the death of Hyrcanus Farr, an insane person, on August 17, 1878, the orator was his guardian.

By his bill the orator seeks to subject his ward's estate in the hands of the administrator and of the other defendants, as far as they have had to do with it to a first charge or lien for the payment of the balance found due him on settlement of his guardianship account in the probate court on January 8, 1879. The bill goes upon the ground that, in the orator's bands, his ward's property was chargeable with the payment of what was due him as guardian; but that the property was unlawfully, and against his will, taken from his possession by the administrator, and therefore is still chargeable in his favor by way of an equitable hen or mortgage for the foreclosure of which he prays.

But the findings of the master do not sustain the allegation that the property was taken from the orator unlawfully and against his will. On the contrary, it appears that the administrator took it with his consent, though with an understanding and expectation, on his part, that it would be sold, and he paid from the proceeds. And the administrator expected the result would be that he would be thus paid; but he did not feel authorized to make payment without an order of the probate court, which he has never attempted to obtain.

It also appears that the orator was with the appraisers when they appraised the property of the estate, and pointed out some of it to them; that before the property was sold he knew the administrator had obtained license to sell the real estate; and that at one time he bargained with the administrator to buy the whole estate for $1,350, but the trade fell through. During all this time it does not appear that the orator claimed any lien on the property, but only,when he said anything about it, that he should be first paid out of the proceeds.

The orator concedes that if he never had a lien on the property, or if he had one and has lost it, he cannot maintain his bill. Now, without undertaking to say whether he ever had a lien or not, we think, if he ever had one, he has waived and lost it. See what be has done. Everything shows that he did not intend to retain a lien on the corpus of the property itself in the hands of the administrator; for he consented to let it go into his hands, supposing and expecting he would sell it in due course of administration. And his consent was not, as claimed, on condition that be should be paid from the proceeds; but it was unconditional and absolute. How, then, can it be said that he intended to retain a lien on the property? It is clear that he did not so intend, not even as to the homestead; for that went into the hands of the administrator, with his consent, with the rest of the estate, and with the same expectation on his part that he was going to be paid out of the avails of the property sold; and at that time the estate appeared to be ample, aside from the homestead, to pay him, if he was to be preferred to other creditors; and that was what be expected; and he then neither claimed nor expected anything else; but now, the estate having been all sold except the homestead, and converted into money, it transpires that, by reason of the depreciation of the property in value from the appraisal, there is very little left of the avails with which to pay anybody. This makes the idea of setting up a lien on the property look very much like an afterthought on the part of the orator, conceived when, in the course of events, a necessity for it seemed to arise.

We have not inquired whether the orator has a superior right to be paid out of the avails of the property; for, if he has, he cannot assert it under his bill as drawn, certainly,if he could by a bill properly drawn and against proper parties.

This renders it unnecessary to consider the other points made in argument. Decree affirmed, and cause remanded.

DEATH: Death record names parents as Jacob and Hannah.

Sarah B. RUSCOE was born in 1820 in of Woodbury, Washington, Vermont, United States. Sarah married 1, 2 Hyrcanus FARR on 23 Sep 1852 in Woodbury, Washington, Vermont, United States.


THORNTON was born in 1810 in Woodbury, Washington, Vermont, United States. THORNTON married Hannah FARR.

Hannah FARR [Parents] was born 1, 2 on 25 Oct 1814 in Woodbury, Washington, Vermont, United States. Hannah married THORNTON.

Other marriages:
RIDEOUT, Herbert P

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