Calcagni v. Cirino, 1514.

• Decision Date: 25 July 1940
• Docket Number: No. 1514.,1514.
• Citation: 14 A.2d 803
• Parties: CALCAGNI et al. v. CIRINO et al.
• Court: Rhode Island Supreme Court

14 A.2d 803

CALCAGNI et al.

v. CIRINO et al.

No. 1514.

Supreme Court of Rhode Island.

July 25, 1940.

Appeal from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Suit by Levia Calcagni and others, by their father, Peter Calcagni, as next friend, and by Peter Calcagni in his own interest, against Antonio Cirino and others to have the named respondent declared to hold certain realty in trust for the benefit of the complainants and to require him to account for rents and profits. From an adverse decree, the complainants appeal.

Decree affirmed in part, and modified in part.

J. Raymond Dubee, of Providence, for complainants.

Benjamin Cianciaurlo, of Providence, for respondents.

MOSS, Justice.

This litigation is now before this court for the third time. It was begun by a bill of complaint filed by the six children of Annie Cirino Calcagni, who was then deceased, all being minors and acting by their father, Peter Calcagni, as next friend. He also joined in the bill in his own interest as surviving husband of Annie Cirino Calcagni.

The relief sought was that the respondent Antonio Cirino be declared to hold certain real estate in the city of Providence in trust for the benefit of the complainants and be required to account for the rents and profits accruing to him from such real estate.

After a hearing on bill, answer and evidence a decree was entered in the superior court denying such relief as to the only piece of improved real estate involved in the cause, but granting the relief sought as to the title to eight unimproved lots, and ordering an accounting for rents and profits therefrom, by the first-named respondent, who is the only real respondent and who will hereinafter be referred to simply as the respondent. On an appeal to this court by the complainants, that decree was affirmed. 62 R.I. 44, 2 A.2d 889. On the same date a petition, filed in this court, for a "new trial" on the ground of newly discovered evidence was denied. 62 R.I. 49, 2 A.2d 891.

Later a bill of review by the same complainants, to obtain a reversal of the same decree on the ground of newly discovered evidence, was filed in the superior court; and a demurrer thereto was sustained by that court in a decree, which was affirmed in this court on appeal. Calcagni v. Cirino, R.I., 7 A.2d 691.

Thereafter, by a decree of the superior court, the cause was referred to a member of the bar of this state, as a special master-in-chancery to take evidence as to an accounting between the parties and to make and file his report, with findings, to that court. Evidence was taken accordingly and a report, with findings, was made by the master to the superior court and filed therein.

After a hearing before that court on exceptions by the respective parties to this report, a decree was entered confirming the report of the master with relation to the amount of taxes, on the lots involved in the cause, which had been paid by the respondent, plus $40.74 for a curbing assessment paid by him. By this decree it was adjudged that the respondent had paid to the city of Providence from 1917 to 1939 the sum of $1,339.91 for taxes, plus the above sum of $40.74 for a curbing assessment, making a total sum of $1,380.65.

By this decree it was also adjudged that this sum, plus interest thereon at the rate of 6% per annum from the time of the payment of that sum by the respondent to the city, made a total sum, due to him, of $1,865.42, from which should be deducted the sum of $35 for income received by him from such lots; and that after the deduction of this sum, the total sum due to the respondent for taxes was $1,830.42. It was further adjudged that, as the complainants have a one-fourth interest in the lots in question, they are responsible to the respondent for one-fourth of this sum of $1,830.42, amounting to $457.60.

It was, therefore, in this decree ordered, adjudged and decreed that the complainants pay to the respondent the sum of $457.60 as their share of the net expenses incurred by him in the payment of taxes, etc.; and he was authorized and empowered "to draw his order on any funds belonging to the complainants over which he has control, for the amount found due him under the terms of this decree."

The cause is now before us on an appeal by the complainants from this decree. The only reasons of appeal on which they have relied in this court are that the decree is against the law; that it is against the evidence and the weight thereof; and that the superior court erred in allowing that part of the master's report in which he found that the respondent had made certain payments of city taxes assessed on the lots of land involved in the cause for all of the years from 1917 to 1938, inclusive, amounting to a total of $1,339.91, as set forth in the decree appealed from.

We have examined this report and also the evidence before the master upon which he based his findings as to the payment of these taxes; and we are of the opinion that we cannot properly hold that the superior court was wrong in allowing that part of the master's report. We are also of the opinion that the finding of the master, in his report, that the respondent on October 24, 1933, paid a curbing assessment of $40.74 on lot 241 on the city tax assessors' plat 123, being one of the lots involved in this cause, which finding was in substance adopted in the decree appealed from, was supported by the evidence; and that the receipt by the respondent of $35 only, in income from these lots, as recited in that decree, was supported by the evidence.

The only remaining questions raised by the reasons of appeal are questions of law, the other pertinent facts involved in the cause being now not in dispute. These facts are as follows.

Annie Cirino Calcagni was the daughter of Liberato and Filomena Cirino; and the respondent is their son. Filomena Cirino died, on July 20, 1914, leaving her husband surviving. At that time the two of them were the owners in common of a certain parcel of improved real estate in Providence and also of the eight unimproved lots in Providence with which the accounting now involved in this cause is concerned. By her will the half interest of Filomena Cirino in all this property passed to her surviving husband, for his life, and the remainder in fee therein passed to their two children, Annie Cirino Calcagni and the respondent, as tenants in common.

On August 13, 1920, Liberato Cirino, Annie Cirino Calcagni and her husband Peter and the respondent sold and conveyed the aforesaid improved real estate to a purchaser; and the sum of $1,576, being one-half of the proceeds of the sale, was by agreement deposited by the vendors in a bank for the benefit of Liberato Cirino for his life.

Annie Cirino Calcagni died intestate on February 28, 1928; and thereupon her undivided half interest in remainder in the eight unimproved lots passed to her children, the principal complainants.

In 1934 Liberato Cirino, who then had an undivided half interest in fee in the eight lots of unimproved real estate and also a life estate, under his wife's will, in the other half interest, quitclaimed by deed all his right, title and interest in these lots to the respondent. Upon the delivery of this deed, the respondent was the owner in fee of an undivided three-fourths interest in these lots and an estate for his father's life in the other undivided one-fourth interest therein; and the remainder in fee in this one-fourth interest was in the other complainants equally, as owners in common.

Liberato Cirino died intestate on May 12, 1936. The bank deposit of $1,576, representing one half of the proceeds of the abovementioned sale of the improved real estate, was very soon thereafter divided, one half of it being...