Cetenich v. Fuvich

• Decision Date: 08 February 1918
• Docket Number: No. 413.,413.
• Parties: CETENICH. v. FUVICH et al.
• Court: Rhode Island Supreme Court

102 A. 817

41 R.I. 107

CETENICH.

v. FUVICH et al.

No. 413.

Supreme Court of Rhode Island.

Feb. 8, 1918.

Appeal from Superior Court, Providence and Bristol Counties; Chester W. Barrows, Judge.

Suit in equity by George Cetenich against Sarah Jane Fuvich and others. Decree for complainant, and respondents appeal. Appeal dismissed, decree affirmed, and cause remanded for further proceedings.

Washington R. Prescott and George Farnell, both of Providence, for appellants.

Harry C. Curtis and Baker & Spicer, all of Providence, for appellee.

VINCENT, J. This is a suit in equity brought by George Cetenich asking to have a trust declared in his favor in one-half of certain property standing in the name of Mary G. Cetenich at her decease. The complainant, it is claimed, was lawfully wedded to the said Mary G. Cetenich, but, however that may be, he lived with her for many years, apparently in the belief that he was her lawful husband. The property in question consists of four parcels of real estate situated in the city of Providence and certain personal property.

The respondents are Washington R. Prescott, executor and trustee under the will of Mary G. Cetenich, and Sarah J. Fuvich and Walter H. Powell, children of the said Mary by former marriages, and her sole beneficiaries under her will. Nicholas Fuvich, the husband of Sarah, is also included as a party respondent.

The complainant seeks relief against these respondents on the ground that equity should impress a trust in his favor upon one-half of said property because before his marriage to the said Mary G. Cetenich, and under an agreement with her, he turned over to her substantially all of his earnings which she was to save and invest for him, and further because under a subsequent agreement the money so turned over was combined with other moneys belonging to her and used in the acquirement of the real and personal property before alluded to, the title of which was taken in her name. The complainant further alleges that his wife, Mary G. Cetenich, was a shrewd woman, possessed of keen business ability, and that she took advantage of his illiteracy and abused his complete dependence upon and confidence in her in the transaction of the business connected with these property matters.

The case was heard in the superior court upon bill, answer, replication, oral testimony, and agreed issues of fact, and a decision was rendered granting the complainant's prayer as to two of said parcels of real estate, namely, those situated at 415 and 171 South Main street, and incidentally as to one-half of the net rents and profits of said two estates from the date of the death of the said Mary G. Cetenich. The court also granted to the complainant an accounting in the matter of these two estates, including the net rents and profits accruing therefrom since the death of Mary, but denied him relief as to the personal property and the other two parcels of real estate mentioned in his bill.

The cause is now before this court on the respondents' appeal from the decree entered in the superior court in accordance with the decision before mentioned. The only question now before us is whether Mary G. Cetenich, at the time of her death, held one-half of the properties located at 415 and 171 South Main street in trust for the complainant.

The complainant had been a sailor and fireman, and at the time when he first met Mary Grace Powell, afterwards Mary G. Cetenich, he was employed on one of the steamers of the Winsor Line running between Philadelphia and Providence. He met Mary in December, 1898, in a small candy and cigar store which she conducted on Wickenden street in Providence where he went to buy a cigar. Mary had two children, the respondent Sarah Fuvich, whose maiden name was Morby, then about eight years of age, and Walter Powell aged about four years. She called both of these children Powell. She represented to the complainant that she was a widow, and that her husband, Powell, was dead. A week later, when the complainant returned to Providence, he visited Mary again, proposed marriage, and was accepted. When he returned from his next trip, the following week, he saw Mary again, and in the course of conversation she proposed to him that he should turn his money over to her and that she should save it for him, and that when a chance presented itself they would buy some property. To this arrangement the complainant agreed, and immediately handed to her $20, and thereafter continued to turn over to her substantially all of his wages and other money. His expenses were extremely small, as he received his board and lodging on the boat, had very few clothes, and used but trivial amounts for personal expenses. During their engagement of a year and eight months the complainant turned over to Mary substantially all of the earnings which he received from his several employers, the Winsor Line, Providence Towboat Company, and Fletcher's yacht, amounting to some $40 or $50 a month, exclusive of his board. He also turned over to her during this period certain salvage money, as well as other moneys which he received for working overtime. He usually turned over his pay envelopes without opening them. At the end of a year and seven months after their engagement his money had accumulated in her hands to the amount of substantially $1,000.

On July 13, 1900, certain real estate at 415 South Main street in Providence was purchased. The deed was made to Mary as grantee. The purchase price was $2,500, of which $2,000 was paid in cash, and $500 by mortgage on the property. The only property which Mary was then known to possess was an estate in Rehoboth worth about $1,000, subsequently sold in Novemher 1898, for about $900, and $1,000 deposited in the Providence Institution for Savings in January, 1809, about a month after she and the complainant had become engaged and he had begun to turn his wages over to her. This deposit of $1,000 was withdrawn on July 13, 1900, the date when the property at 415 South Main street was purchased.

Upon the acquisition of this property, which consisted of a two-story building with stores in front and a smaller building in the rear, the upstairs part was arranged for a rooming house, and some secondhand furniture was purchased therefor.

About August 14, 1900, the complainant and Mary went through a ceremony of marriage in Boston, returning and making their home at 415 South Main street, Providence. Later a large four-story building containing three stores and some 25 rooms was erected on this property. The upper part of the premises was conducted as a rooming house down to the time of Mary's death on December 17, 1914. Until February, 1913, the complainant labored, in regular outside employment, either all day or all night, and gave all of his Sundays, holidays, evenings, and other spare time to the care of the rooming house and the other property. He scrubbed floors, made beds, repaired plumbing, painted, tended the fires, collected rents, and made himself generally useful. He was handy with tools, had a workbench for steam fitting in the basement, and a set of plumber's tool's. During 3 years when he was in the employ of the Providence Towboat Company he received for overwork sufficient coal and wood to supply the house, bringing it home at night upon his back.

In 1913, after Mary became paralyzed, he gave up his outside work and devoted himself to her care and the care of the rooming house during her long illness of some 20 months, besides doing washing, cooking, scrubbing, making beds, tending furnaces, collecting rents, and making repairs.

Altogether the complainant's wages which he turned over to Mary from August 14, 1900, to February, 1913, aggregated about $10,000.

In 1901 the city of Providence widened South Main street, and in so doing took 20 feet from the front of the property at 415, for which it paid to Mary $5,300. One thousand dollars of this money was spent in moving back and reconstructing the building; $2,500 was used in purchasing certain property at 171 South Main street on July 2, 1902. From time to time mortgages were placed upon these estates to get funds for buildings and improvements thereon and for the purchase of other real estate. All of such mortgages, however, were discharged before Mary's death. On October 16, 1903, Mary made another purchase of property located at 455 South Main street; on June 4, 1911, obtained an estate on Shimbo alley; on June 1, 1908, acquired property at 162 Smithfield avenue; and in November, 1908, a strip adjoining the 415 South Main street property which she purchased for $1,600, being the proceeds of a mortgage on the properties at 415 and 171 South Main street. The deeds of all of these properties were taken in Mary's name as grantee. In the four mortgages on the properties at 415 and 171 South Main street which were made after August 14, 1900, when the complainant and Mary were living together as man and wife, the complainant was described as a joint mortgagor, and he was also a comaker of the mortgage notes; he executing them by making his mark.

The real estate standing in Mary's name on November 15, 1914, the date of her death, comprised 415 and 171 South Main street, 162 Smithfield avenue, and a strip of land adjoining 415 South Main street. These properties cost altogether about $33,000. All of the business relating to the acquisition and improvement thereof was transacted by Mary in her own name. In addition to this real estate Mary's personal estate, at the time of her decease, was inventoried at upwards...