Cummings v. Weaver

• Decision Date: 16 February 1932
• Citation: 158 A. 812,114 Conn. 325
• Court: Connecticut Supreme Court
• Parties: CUMMINGS v. WEAVER et al.

158 A. 812

114 Conn. 325

CUMMINGS v. WEAVER et al.

Supreme Court of Errors of Connecticut.

February 16, 1932

Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.

Action by Miles L. Cummings, as executor of the estate of Minnie I Cummings, deceased, against Jeannette E. Weaver and others to recover money claimed to have been paid by mistake, and for an accounting.The case was tried to the court.Miles L Cummings died during the pendency of the action, and Curtiss K. Thompson, administrator of deceased's estate, was substituted as partyplaintiff.Judgment for defendants, and plaintiff appeals.

No error.

George W. Crawford and Curtiss K. Thompson, both of New Haven, for appellant.

Philip Pond and Joseph B. Morse, both of New Haven, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS and AVERY, JJ.

BANKS J.

The original plaintiff, Miles L. Cummings, died during the pendency of the action, and Curtiss K. Thompson, administrator upon his estate, was substituted as partyplaintiff.This is an action brought by the representative of one of the devisees under the will of Edward E. Bristol, who died a resident of New Haven, January 9, 1900, to recover from the heirs of another devisee certain rentals which it is claimed the latter received from the property of the estate, pending its settlement, beyond the amounts to which they were legally entitled.Edward E. Bristol left surviving him three children, Elias, Minnie, and Iva.In his will he left certain real estate in New Haven to each child for life, with remainder to the testator's heirs at law, and certain real estate in Cheshire and Hamden to his brother for life.He left all the residue of his estate to his three children in equal shares, and made them joint executors of his will.Under the will Elias received the life use of properties known as 17 Wall street and 157-161 Crown street; Minnie and Iva the life use of 145-141 Court street and 17 Clark street, equally; Minnie the life use of 21 Wall street; and Iva the life use of 19 Wall street.Prior to his death Edward E. Bristol had given certain deeds of the properties to his children, and after his death there arose among them a long dispute over the construction of the will and these deeds as affecting their respective interests in the property.As a result of the dispute the children entered into a mutual agreement that each was to collect the rents and income of the particular properties in which he or she was given a life estate, and this was done.All three of the children died within a period of a little over two years after their father's death.Iva died, intestate and unmarried, in February, 1901.Elias died intestate in June, 1901, leaving a widow, now Jeannette E. Weaver, and a daughter Frances, the defendant herein.Minnie, who had married Miles L. Cummings, died April 4, 1902, leaving no children.Her husband, the original plaintiff in this action, was life tenant under her will and executor of the will.Albert H. Barclay was appointed administrator upon the estate of Elias, and made claim that that estate owned half of all these properties.The parties had opinions from many different lawyers as to the construction of the will and the deeds.The claim of Barclay was disputed, and the claim was made that Frances was entitled to all the properties.Upon his appointment as administrator upon the estate of Elias, Barclay assumed possession of the Crown street property and of numbers 17 and 19 Wall street, and collected the rents therefrom, and after the death of Minnie accounted to Cummings, as executor and life tenant, for a portion of them, but what portion did not appear.After the death of Minnie, Cummings, as her executor and life tenant, took possession of the Court street and Clark street properties and collected the rents.In compliance, however, with Barclay's claim that half of the income of all these properties belonged to the estate of Elias, Cummings accounted to him for one quarter of these rentals, turned over one-half to Mrs. Weaver for the use of herself and daughter, and retained one-quarter for himself, as life tenant.He also told Mrs. Weaver that she should take over 21 Wall street, as it belonged to her daughter, and there after she collected the rents from 21 Wall street as guardian for her daughter, from March 9, 1902, until the sale of the property on December 7, 1920.Barclay was appointed administrator d. b. n. c. t. a. upon the estate of Edward E. Bristol in December 1918, and thereafter all the parties in interest agreed that distributors should be appointed who should make distribution of the estate, and that the properties should then be sold.This was done, and one-third of the real estate of the estate was distributed to the estates of Elias.Minnie, and Iva, respectively, and thereafter the estate of Iva was distributed equally between the estates of Elias and Minnie, resulting in each of the last two estates receiving an undivided half interest in all these properties.The plaintiff claims that the defendants received from the income of 21 Wall street and of the Court and Clark street properties a larger proportion than they were entitled to receive in accordance with their interest in these properties as determined by the distribution, and asks for an accounting for one half of the net income from 21 Wall street and for the recovery of over payments claimed to have been made by him to them from the rents of the Court and Clark street properties.

Though it appears from the finding that the defendants received the entire rentals of 21 Wall street during the period in question, and more than one-half of the rentals of the Court and Clark street properties, it does not appear that they received more than the one-half of the net income of all these properties which would be the amount they would be entitled to receive in accordance with their interests as determined by the distribution.The values of the different properties are not stated in the finding, and it is found that it did not appear what portion of the rentals of the Crown street property and of 17 and 19 Wall street collected by Barclay, administrator, were accounted for by him to Cummings, executor.The finding that the accounting by Cummings of the net income of the Court and Clark street properties-one-quarter to Barclay, administrator, and one-half to Jeannette Weaver, thus apportioning three-quarters of the net...