Porter v. Long

• Decision Date: 13 September 1900
• Citation: 124 Mich. 584,83 N.W. 601
• Court: Michigan Supreme Court
• Parties: PORTER et al. v. LONG et al.

83 N.W. 601

124 Mich. 584

PORTER et al. v. LONG et al.

Supreme Court of Michigan

September 13, 1900

Appeal from circuit court, Kent county, in chancery; William E Grove, Judge.

Bill by Millie C. Porter and others against George H. Long and Horace J. Culbertson. From a decree in favor of defendants complainants appeal. Modified.

Butterfield & Keeney, for appellants.

Crane Norris & Stevents, for appellees.

MOORE J.

A reference to the case of Long v. Landman, 118 Mich 174, 76 N.W. 374, will make it unnecessary to make so long a statement of what is involved in this case as would otherwise be necessary. After that case was decided, this bill was filed by the complainants, who represent four of the five shares into which the will of Arthur B. Long divided his estate, the other share of which is represented by George H. Long. The purpose of the proceeding is to obtain from George H. Long, as surviving partner of the firm of A. B. Long & Son, an accounting of its affairs, and also to obtain from him, as sole executor for the state of Michigan, an accounting of the affairs of the estate of Arthur B. Long, deceased. In the court below, the following decree was made: '(1) That the defendant George H. Long, as surviving partner of the firm of A. B. Long & Son, is entitled to a reasonable compensation for all services rendered by him from June 24, 1884, in carrying on, with the original capital, good will, and assets of such firm, a general lumber business, in excess of mere winding up the affairs of said firm. But defendant George H. Long cannot receive double compensation for receiving and disbursing the same funds; that is, from his compensation as surviving partner must be deducted the commissions allowed to him by the orphans' court of Mifflin county, Pennsylvania, for receiving and disbursing the amounts paid over by said George H. Long out of the firm assets, property, and profits of the firm of A. B. Long & Son. (2) That all and singular the first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth annual accounts rendered by the defendant George H. Long, as executor for Michigan, to the probate court for the county of Kent, in the state of Michigan, and by that court, pursuant to the statutory notice previously given, regularly settled, are conclusive as to all matters contained in them. (3) That the defendant George H. Long properly brought the ejectment suit against the Chicago & West Michigan Railway Company, and properly defended the ejectment suit against the Chicago & West Michigan Railway Company, and properly defended the chancery suit brought against him by the Kent Furniture Company and the Chicago & West Michigan Railway Company. (4) That all and singular the partnership accounts between the firm of A. B. Long & Son and Arthur B. Long and George H. Long, and the accounts between the two partners, were settled December 31, 1883, and such settlement was entered upon the books of accounts of such firm, and that neither parties to this suit is at liberty to go behind such settlement so made and entered on such books; and the accounting hereafter directed is only to include transactions and matters since December 31, 1883. (5) That the said cause, together with all testimony, exhibits, depositions, settlements, papers, and books of account, to be referred to William B. Brown, a circuit court commissioner of said county of Kent, to take and state an account: First, of all the proceeds received by the defendant George H. Long as surviving partner of the firm of A. B. Long & Son, plus all sums deducted by the same defendant George H. Long as compensation for his services as surviving partner; second, of all sums received by him as executor of Arthur B. Long, deceased, in the state of Michigan; third, of the amounts paid by him as executor in Michigan to himself as executor in the state of Pennsylvania; fourth, of the amount of the personal estate of Arthur B. Long, upon which George H. Long, as executor in the state of Pennsylvania, received commissions, and the amount of commissions so actually received by the defendant George H. Long as executor in Pennsylvania; fifth, of the amount of the commissions on the personal estate of Arthur B. Long in the state of Michigan received by the defendant George H. Long as executor in Michigan; sixth, that the commissioner report the amount of commissions the defendant George H. Long as executor in the state of Michigan would be entitled to if commissions should be allowed to him as ancillary executor in Michigan; seventh, of the amount received by him as executor, if any, from the farm of Arthur B. Long, in Millbrook township, Mecosta county, Michigan, and the disposition of the same; eighth, of the amount of the personal estate of Arthur B. Long in Michigan, not including amounts paid for log stumpage nor for single stumpage, nor from his individual estate, but derived solely from the business carried on by the defendant, as surviving partner of the firm of Arthur B. Long & Son, from the death of Arthur B. Long, June 24, 1884, and from the assets of said firm; ninth, of the amount due from the defendant George H. Long, as surviving partner, to the executor of the will of Arthur B. Long, deceased, in the state of Michigan, under the contract of date July 9, 1881, for log stumpage, in accordance with the terms of that contract, and of the amount due from the defendant George H. Long, as surviving partner, to the aforesaid executor in Michigan, under the contract of date December 5, 1882, for shingle stumpage, according to the terms of such shingle-stumpage contract; tenth, of the amount received by him, as surviving partner, from the farm of Arthur B. Long, deceased, in Millbrook township, Mecosta county, Michigan, and the disposition of the same; eleventh, of the amount paid by the defendant George H. Long, as surviving partner, for highway taxes in Millbrook township, and the dates and amounts of such payments; twelfth, of the amount, if any, paid by defendant George H. Long, as executor in Michigan, for highway taxes in Millbrook township, Mecosta county, Michigan. (6) That the complainants and defendants have leave to take before the commissioner additional testimony in respect to what would be a reasonable compensation for the defendant George H. Long, as surviving partner of A. B. Long & Son, for all services in excess of mere winding up, and upon such testimony, and upon all other testimony in the case, the commissioner report what would be

a reasonable compensation for the defendant George H. Long, as surviving partner, for all services rendered by him in excess of mere winding up. (7) That the complainant and defendant have leave to take additional testimony in respect to the disposition by the defendant, as surviving partner, of the four thousand dollars ($4,000) received by the defendant, as surviving partner, under the mortgages executed by the defendant, as executor and surviving partner, to Kate E. Long, and the reasonableness and propriety of such disposition. (8) Of the disposition of the sum of four thousand dollars ($4,000) received by him as surviving partner under the two mortgages of date February 1, 1895, executed by him, as surviving partner and executor in Michigan, to Kate E. Long, and in the pleadings in this case mentioned. (9) The parties to this cause have leave to apply to this court for permission to take additional proofs before the said commissioner on any of the points herein referred at any time prior to the conclusion of the hearing before the commissioner. (10) That the commissioner, with his report and schedules, return all books, papers, documents, testimony, and depositions to the clerk of this court. (11) That the effect of the statute of limitations, the effect of laches of the complainants, if any, and the question of double compensation paid to the defendant George H. Long, if any, is hereby reserved until the final decree of this court, in respect to all and singular the claims and demands of the complainants. (12) That the right of the defendant as executor in Michigan to commissions upon the sums received and collected by him, and the question of costs, are hereby reserved until the final decree of this court. (13) The commissioner is ordered to state the account, debit and credit, on each and every of the items hereinbefore referred to him for his consideration.'

On October 16, 1899, upon showing by affidavit, an order was made by the court, and filed, extending time to settle case until December 28th, inclusive.

While the records and briefs are very long, the legal questions involved are not very complicated. Following the order in which the questions were decided in this decree, the first item which requires our attention is a charge of $6,000 a year made for six years by George H. Long for the management of the business of A. B. Long & Son after the death of Arthur B. Long. To pass upon this item intelligently, in addition to the articles of partnership and the provisions of the will which appear in the case of Long v. Landman, supra, it should be said that Arthur B. Long, during all the time he was associated with his son, was a resident of Pennsylvania, and there is nothing in the record to indicate that he did not expect to remain a resident of that state as long as he lived. George H. Long was a resident of Michigan, and the business of A. B. Long & Son was conducted in Michigan, and the articles of partnership expected it would be so conducted. Prior to 1881 Arthur B. Long was the owner of a large quantity of valuable pine timber, when agreements reading as follows were made:

'This agreement, made and entered into this ninth day of July in the year one thousand eight hundred and eighty-one, by and

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