Collins v. Collins

This accounting covers a period of twenty-nine years and eleven months, from March 31,1862, to April 1,1892. The learned referee has stated the accounts as follows:

Rents collected................. $66,355 17

Rental value of rooms occupied by Mary A. Collins.. 5,370 00

Rental value of rooms occupied by plaintiff......... 3,714 00

Rental value of rooms occupied by George K. Collins. 28 00

Total rents received and rental values.......... $75,467 17

George K. Collins is charged with this sum by the referee, and is credited by the referee with the following sums:

Taxes, insurance, etc-............................ 37,111 79

$38,355 38

*506Of this balance Mary A. Collins, as dowress, is entitled to three-ninths............................ $12,785,127

John A. Collins (plaintiff), two-ninths............. 8,523.418

George K. Collins, four-ninths.................... 17,046.836

$38,355.38

Plaintiff’s interest in rents...................... $8,523 41

Against this the following sums are charged :

Rental value of rooms occupied by plaintiff. $3,714 00

Board of himself and family by mother. <* r-T 00

Coal furnished, by mother.............. 701 27

Wood furnished by mother............. 250 00

Milk furnished by mother.............. co cq CO 50

Ice furnished by mother............... 30 00

One-third cost of small piece of land, paid for by George K. Collins and added to property.......................... 36 66

Mary A. Collins, as agent for George K. Collins, collected $20,261.64 of the rents, all of which is charged to George K. Collins, who held the legal title of the property. The referee allows the mother five per cent for collecting $20,261.64, which amounts to $1,013.08, two-ninths of which is charged to John A. Collins........................... 225 12

- 7,229 55

Amount due John A. Collins.................. $1,293 86

The rents collected (the first item in the account), the rental value of rooms occupied by Mary A. Collins (the second item in the account) and the rental value of rooms occupied by George K. Collins (the fourth item in the account) are conceded by the plaintiff to be correct. But he challenges the right of the referee to charge him with $3,714 for the rooms occupied by him. The value of the use of these rooms was established by competent evidence, which is hardly questioned by the plaintiff, but it is urged that one tenant in common cannot charge his co-tenant for use and occupation. This is *507undoubtedly the rule in cases between co-tenants; but,, if the rule should be applied in this case, the rental value of the rooms occupied by Mary A. Collins and George K. Collins would necessarily be deducted from the account, which would leave the amount of rents to be charged against George K. Collins at $66,355.17, and after deducting taxes, insurance, etc. — $37,111.79—would leave $29,243.38. to be divided among the co-tenants, two-ninths of which belongs to> the plaintiff, and equals $6,498.52, or $2,024.89 less than the sum now credited to him. It is urged that the court erred in charging-the plaintiff with the value of board, coal, wood,, milk and ice furnished to the plaintiff and his family by the mother, Mary A. Collins. The evidence shows beyond question that the items charged for were furnished by the mother to this plaintiff and his family, and were of the value charged; and that she paid for them out of the rents collected by her from the tenants of the building; and that between her and George K. Collins she had no- right to make this application of these moneys, and is accountable to George K. Collins for his share of the moneys so applied. It is also urged in behalf of the plaintiff that the referee erred in charging him with $225.12, two-nintlis of the amount found due the mother for collecting part of the rents of the building. Had the defendant, George K. Collins employed and paid a collector, the amount, if reasonable, -would have been allowable under the rule held in Loos v. Wilkinson (113 N. Y. 485). The referee finds that, as between George K. Collins and his mother, he is chargeable with a reasonable sum for the collection of these rents; and, under the circumstances of this case, we think the charge of two-ninths thereof against this plaintiff was eminently fair and equitable. It is conceded that the defendant George K. Collins mainly had the charge of this building for thirty years, made all of the expenditures and managed the business, for which he made a claim of $6,000, or at the rate of $200 per year, but nothing was allowed' for his services during all of this period. lie also insisted and gave some evidence tending to show he had expended, at least $40 a year, or $1,200 in all, for items in connection with the building not charged for in his account. This claim was also disallowed. The plaintiff further insists that the accounts should have been stated with annual rests, and that George K. Collins should have been charged with *508interest upon the balances in his hands. It is apparent from the way in which the members of this family lived and conducted their business, that this mode of computation would have been impossible. If this could have been done, the amount which the plaintiff received •during each year would be charged against him and deducted from the amount chargeable to the defendant, and the difference between this method of accounting and the one adopted by the referee would not be great.

It should be observed that this is not an accounting by a trustee who has a definite or ascertainable fund in his hands which it is his ■duty to invest and pay over the income, and the principles applicable to such an accounting would be inequitable in a case like the present. An examination of the evidence in this case convinces me that ample justice was done by the referee to the plaintiff on •this accounting. I am aware of the fact that the defendant George K. Collins is in form charged by the judgment as a fraudulent trustee, but it seems to me to have been a case of constructive, rather than of intended fraud. It may be that his action in acquiring the'title, which was concurred in by the mother, was for the purpose of preserving the plaintiff’s interest in this estate, who seems not always to have been a successful business man. This view is strengthened by the fact that, when the youngest brother, Frank, became of age, the defendant settled with him for 1ns share in the property upon terms, the justness of which has not been assailed. I think that the referee has done substantial justice between these litigants, and if he has erred he has erred in favor of the plaintiff.

The order should be reversed, the report confirmed, and a final judgment ordered thereon, with costs to the plaintiff up to the date when that report was filed, and with costs in favor of the defendant George K. Collins against the plaintiff subsequent to that date, including costs of this appeal, to be taxed and set off against the plaintiff’s costs.

All concurred.

Order reversed, the report confirmed and a final judgment ordered thereon, with costs to the plaintiff up to the date when that report was filed, and with costs in favor of the defendant George K. Collins, against the plaintiff subsequent to that date, including costs of this appeal, to be taxed and set off against the plaintiff’s costs.