
    RE ARMILDA C. BROWN ESTATE, B. W. BROWN, APPELLANT.
    Windsor County,
    1893.
    Before: Taft, Munson, Start, and Thompson, JJ.
    
      Account of administrator. Tombstone. Separate estate of 'wife. Error must affirmatively affear.
    
    1. Upon the question whether an administrator has properly expended $100 in the erection of a tombstone for his intestate, it is proper to receive evidence as to the wishes of the deceased and of her surviving family in this respect, and as to the orders of the probate court made with or without notice to the heirs, for all this tends to show whether the administrator acted in good faith.
    2. It does not necessarily follow that a chamber set, which was used in the family, belongs to the estate of the wife because she bought and paid for it with her own money. The husband in the exercise of his marital rights might have reduced it to his possession.
    3. And'it must affirmatively appear that he did not in order to reverse a judgment of the county court that the administrator of the wife is not chargeable with it.
    Appeal from a judgment of the probate court for the district of Windsor allowing the account of the administrator. Heard at the December term, 1892, Tyler, J., presiding, upon the report of a commissioner. Judgment for the ap-pellee. The appellant excepts. • The case appears in the opinion.
    
      Gilbert A. Davis for the appellant.
    
      The chamber set, having been bought with the wife’s money, belonged to her estate. Leavitt v. Jones, 54 Vt. '423 ; Sjbooner and Wife v. Reynolds, 50 Vt. 437» 444.
    
      Fred C. Davis and W. W. Stickney for the appellee.
   The opinion of the court was delivered by

TAFT, J.

This case involves the settlement of an admin-* trator’s account by a commissioner appointed by the county court. The administrator charged the sum of one hundred dollars for a tombstone or monument for the deceased, and whether that sum should be allowed him was a question before the commissioner. The commissioner received in evidence the declarations of the deceased in respect of her wishes as to a monument, the statements of the husband of the deceased made to the administrator in respect of the same, and the orders of the probate court setting apart the sum named for the purpose of paying for the monument. The administrator -was justified in erecting a monument or tombstone, and it was proper for him to consult the wishes of the family of Mrs. Brown, and it was not error for the administrator to learn what the deceased desired in respect of something to mark her last resting place ; nor was it error to receive in evidence the orders of the probate court, whether made with or without notice to the heirs. All these matters bear to some extent upon the good faith of the administrator in the performance of his duties. Not that he should be governed by what any one said or desired, but it was proper for him to understand all the circumstances of the cáse, so that he could act intelligently in the premises. There was no error in receiving the testimony excepted to.

II. The other question is whether the court erred in not charging the administrator with a chamber set. It was bought by the intestate, during coverture, and she paid for it. It does not appear from the report that the property in question was the sole and separate property of the wife, and unless it was, the husband by virtue of his marital rights could take it as his own. That it was her sole and separate property must appear affirmatively, in order to show error in the judgment of the court below, as we cannot presume it. It not so appearing, the judgment must be and it is

Affirmed and ordered certified to the probate court.  