action as against the executor. Short v. Moore, 10 Vt. 446. When a decree has been made and the time fixed for payment has expired the amount decreed becomes a debt due from the trustee to the beneficiary. Until that time the fund belongs to the estate and the legal title is held by the trustee. Bank v. Kidder, 20 Vt. 519; Probate Court v. Chapin, 31 Vt, 373; Foss, Tr. v. Sowles, 62 Vt. 221; In Re Hodges' Estate, 63 Vt. 661.

The plaintiff contends that in the circumstances of this case the income was the defendant's so that she could have enforced its collection without an order of the probate court. The general rule is that, for a creditor of one to make another chargeable as trustee of the debtor, the latter must have a cause of action against the trustee,-that the creditor takes the place of the principal debtor. Kettle v. Harvey, 21 Vt. 301; Boyden v. Ward, 38 Vt. 628; Smith v. Stratton and Tr., 56 Vt. 362.

It was held in Lynde v. Davenport, 57 Vt. 597, that an action at law would lie to recover the amount of a trust fund when the trust had terminated and nothing remained to be done but to pay over the money. Upon the same ground it was decided in Underhill v. Morgan, 33 Conn. 105, that a widow might maintain assumpsit against her husband's administrator for a fund which her husband had held in trust for her. In II Perry on Trusts, 843, it is laid down as a rule that where an account between the trustee and the cestui que trust has been stated, assumpsit will lie while the trust remains open, upon the ground that a legal debt had been created between the parties. So it has been held that where there is an express promise by the trustee to pay the beneficiary a certain part of the income, assumpsit will lie upon the promise. Weston v. Barker, 12 Johns. 276; Dias v. Brunell, 24 Wend. 9; Roper v. Holland, 3 A. & E. 99. In Case v. Roberts, Holt's N. P. Cas. 500, it is carefully stated that a balance of money received and to be accounted for by a trustee cannot be sued for at law by the party

entitled unless such balance had been specifically adjusted, in which case it may be sued for.

The case at bar does not come within these rules. The trust had not terminated; the trustee had not promised to pay the beneficiary the amount of income in his hands, nor accounted to her for it so that a promise could be implied. No decree or order having been made the defendant was not entitled to sue for it. The case of Hoyt v. Christie, 51 Vt. 48, does not aid the plaintiff, for in that case the estate had been fully settled and the share of the defendant therein fully determined, and the money which constituted the defendant's share had ceased to be the money of the estate and had become the money of the defendant.

But the plaintiff contends that the trustee conceded his liability in the agreed statement. The concession was as to the amount of funds in his hands with a submission to the court of the question whether he was chargeable as trustee. The same question is now presented in respect to the trustee's legal liability that would have arisen upon the report of a commissioner.

Judgment reversed and judgment that the trustee is not chargeable.

CUTLER & MARTIN VS. HYNMAN SKeels.

October Term, 1896.

Present: Ross, C. J., TAFT, ROWELL, TYLER, MUNSON and START, JJ.

Evidence-Ordering Letter Produced-Opinion-Comparisons-Excep tion to Charge-Improper Argument to Jury.

Error cannot be predicated upon an improper answer to a proper question. The exclusion of an unanswered question is not error, no offer being made showing that the answer would disclose admissible evidence.

The trial court refused to order the plaintiff to produce, for the use of the defendant while cross-examining the plaintiff, a letter which the plaintiff had received from the defendant concerning the matter in question. Held, the contents of the letter not being shown by the record, that no error could be found in the ruling.

A witness qualified to speak upon the subject may give his opinion as to the age of cattle.

A dealer who had seen the meat in question was asked, as a witness, to compare the meat he saw with that which could be obtained from such cattle as were described by another witness. Held, that the question was properly excluded.

There was no error in allowing the defendant to be asked if in his letter to the plaintiff he stated his claim as he then, on trial, made it; no inquiry being made as to what the contents of the letter were.

An exception, to a recited portion of the charge, in the words, "to all which the defendant excepted," will not justify a reversal if any part of the recited portion is correct.

The court permitted counsel for the plaintiff to make, in argument to the jury, statements of facts which were not in evidence. In this respect there was error and the judgment is reversed.

GENERAL ASSUMPSIT. Plea, the general issue. Trial by jury at the March Term, 1895, Washington County, Start, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepted.

The action was for the price of a pair of oxen. The oxen, while alive, were sold, by description, through Howard P. Martin as the plaintiffs' agent, to be dressed and delivered at the defendant's market in Barre at seven cents per pound.

The defendant's evidence tended to show an express warranty that the oxen were not over five or six years old, a strictly fancy pair, and fit to hang in the defendant's windows as an advertisement, and that the price was for that reason larger by one cent per pound than the price of ordinary first-class beef; that the contract was made January 18, 1893, and that the cattle were delivered February 23, 1893, by one Lombard as the plaintiffs' agent; that the defendant received the meat with objections, not as filling the contract but in reliance upon Lombard's representation that the plaintiffs would do what was right about it; that until a month after the delivery the defendant supposed he

was dealing with Howard P. Martin as principal; that the day after the delivery the defendant notified Howard P. Martin, by letter, that the meat was unsatisfactory and that he must come and settle, which letter was received and delivered to the plaintiffs on the day following; that after waiting a reasonable time and reasonable time and receiving no receiving no reply the defendant cut up the meat and began the sale of it, being still ignorant of the age of the cattle and not intending to accept it under the contract; that about March 1, 1893, the plaintiff Willard S. Martin called upon the defendant for the pay for the cattle and that the defendant insisted upon settling with the supposed principal, Howard P. Martin; that, soon after, Howard P. Martin called and was informed by the defendant that the meat was not accepted and that the defendant claimed damages for breach of the contract; that the cattle were, in fact, from twelve to fifteen years old, and the meat not worth over four or five cents per pound, and that considerable of it was unmarketable; that the defendant offered to return the unsold portion when he found that the plaintiffs were unwilling to allow a recoupment of damages. The plaintiffs conceded that they were bound by any representation made to the defendant by Howard P. Martin.

The plaintiffs' evidence tended to show that there was no warranty as to the age of the cattle, that they were not sold as a fancy article, and that the meat was all that it was represented to be.

(1) The basis for this exception appears in the opinion.

(2) On cross-examination, the plaintiff, Willard S. Martin, was asked if he did not instruct Lombard to keep quiet about where the oxen had gone, and answered: "No, I never did and I never heard of it until you just spoke." He was then asked: "You did not know that Mr. Lombard had told somebody that you had instructed him to that effect, did you?" The question was excluded and the defendant excepted.

(3) On further cross-examination, the same witness admitted that while the case was pending before the justice he did, perhaps, ask him to look at other of the plaintiffs' cattle and see what kind of cattle they were. The defendant then offered to ask him: "Did you not know better than to approach a justice in that way?" The question was excluded and the defendant excepted.

(4) The basis for this exception appears in the opinion.

(5) The defendant while putting in his case called the plaintiff, Martin, for cross-examination and asked him to produce a letter written to the plaintiffs by the defendant, concerning the cattle, which the witness acknowledged was in court in the hands of his counsel. The court refused to order the letter produced at that time. The defendant excepted.

(6, 152, 16) The witnesses Hall and Brock were allowed to give their opinion as to the age of the cattle, having testified that they had examined them for the purpose of determining their age.

(7, 8, 15) The basis for these exceptions appears in the opinion.

(17) Counsel for the plaintiffs in the opening, argument stated to the jury that one of the witnesses for the defendant was an assistant counsel and argued that his relations as such counsel affected his credibility as a witness. There was no evidence in support of the assertion. The defendant was allowed an exception. In the closing argument the plaintiffs' counsel stated that the plaintiffs brought their reputation into court with them, that he (counsel) had known them for many years and known of their previous good character and reputation and that these were the best kind of evidence in their behalf. There was no evidence in support of either of these assertions. The statement was not withdrawn, but left to have its natural effect. The defendant was allowed an exception.

(18) The holding of the court renders a statement of the charge unnecessary.