Montaquila v. Montaquila, 2518

• Decision Date: 12 June 1957
• Docket Number: No. 2518,2518
• Citation: 133 A.2d 119,85 R.I. 447
• Parties: Samuel MONTAQUILA v. John MONTAQUILA et al. Eq.
• Court: Rhode Island Supreme Court

Page 119

133 A.2d 119

85 R.I. 447

Samuel MONTAQUILA v. John MONTAQUILA et al.

Eq. No. 2518.

Supreme Court of Rhode Island.

June 12, 1957.

Joseph H. Coen, A. Louis Rosenstein, DiMascolo & DiPetrillo, Henry R. DiMascolo, Providence, for appellants.

Francis J. McElhiney, Philip B. Goldberg, Leo M. Goldberg, Providence, for appellee.

ROBERTS, Justice.

This bill in equity for the partition of certain real estate known as the Dean Estates was brought by Samuel Montaquila against John Montaquila and certain other respondents. After the trial began, the matter was compromised and a final decree was entered on February 14, 1952. A deed of trust was executed and delivered by the parties to Joseph H. Coen and Francis J. McElhiney as trustees, conveying the real estate referred to in the bill of complaint in trust to said trustees. A copy of the trust deed was made a part of the final decree. Under the trust deed the trustees were to be paid 15 per cent of all sums received by them as full payment for their services in the development of the land.

On March 31, 1953 complainant Samuel Montaquila died, leaving as legatees under his will Rose T. Montaquila, his widow, and Anna Sisti, a daughter. The widow and an attorney, A. Louis Rosenstein, were designated as executors under the will and Rosenstein and the Rhode Island Hospital Trust Company were named as trustees. The two appeals hereinafter referred to, as taken by the cotrustee Coen, were joined in by the legatees, the executors and the trustees under the will.

On February 14, 1954 McElhiney resigned as cotrustee and respondent John Montaquila was appointed by the court as his successor. During the time that Coen and McElhiney acted as trustees they had employed A. W. Riccio as a salesman for the sale of house lots located in various areas as the land was developed. Thereafter Riccio left the employ of the trustees, and John Montaquila suggested that he take over the work of selling the platted lots. He and Coen conferred informally with the trial justice, who deemed it proper for Montaquila to act as a salesman and suggested that his compensation for such services be fixed at 4 per cent of the sums received on the lots he sold. The trustees worked out an agreement based on the court's suggestion, but it does not appear from the record that any decree was entered relating to such agreement.

In the summer of 1955 Montaquila asked his cotrustee to agree to his receiving a higher commission on the sale of lots. Thereafter, following a conference with the trial justice, a petition for instruction signed by both trustees was filed. The petition was heard on October 21, 1955, and the widow and daughter of Samuel Montaquila appeared and objected to granting Montaquila an increase in his commission. On December 21, 1955 a decree was entered containing findings of fact to the effect that the interest of Montaquila as a salesman was consistent with his interest as a cotrustee; that the commission of 4 per cent of the amounts received for the sale of lots sold by him was inadequate; and that he was entitled to 8 per cent of such amounts. It was ordered that the co-trustees compensate Montaquila for his work as a salesman at the rate of 8 per cent of the amounts received for the sale of the lots. On December 31, 1955 an appeal from this decree was duly taken by Coen. On February 16, 1956 the cotrustee Montaquila filed a motion to dismiss the appeal on the ground that it was not a final decree and therefore was not appealable.

It further appears that on January 19, 1956 Montaquila petitioned the court for permission to engage counsel to defend the decree of December 21, 1955 and to pay such counsel from the trust estate, apparently under the provisions of General Laws 1938, chapter 528, § 22. This petition was heard by the trial justice, and on February 7, 1956 a decree was entered authorizing him to engage counsel to defend said decree and to pay such counsel out of the assets of the trust estate. An appeal by Coen from this decree of February 7, 1956 was duly taken on February 29, 1956 and on June 19, 1956 the cotrustee Montaquila moved to dismiss this appeal on the ground that the decree was not final.

The cause is before this court on the appeals of cotrustee Coen from the decrees of December 21, 1955 and February 7, 1956 and on cotrustee Montaquila's motions to dismiss the said appeals of Coen.

The question first to be considered here is whether the appeal of the co-trustee Coen from the decree of December 21, 1955 should be dismissed on the ground that it is not a final decree. It is our well-settled rule that apart from certain classes of interlocutory decrees specifically provided for by statute, an appeal to this court lies only from a final decree. There is, however, a well-established exception to this rule, namely, that where a decree, which in a strict sense is interlocutory, should be reviewed immediately because of possible injurious consequences, it will be held to possess such elements of finality as to permit an immediate appeal. Stanton v. Sullivan, 62 R.I. 154, 157, 4 A.2d 269; McAuslan v. McAuslan, 34 R.I. 462, 472, 83 A. 837.

Assuming without deciding that the decree of December 21, 1955 is not a final decree, from which an appeal may be taken under the provisions of G.L.1938, chap. 541, § 1, as amended by Public Laws 1955, chapter 3497, and as further amended by P.L.1956, chap. 3752, we are of the opinion that if it is not, it clearly falls within the exception stated above and may be appealed from immediately. In this decree the trial justice found that the employment of the cotrustee Montaquila as a...