31 N.Y.S. 413 | N.Y. Sup. Ct. | 1894
David Hull, in 1878, resided in the town of Middletown, Delaware county, and owned two farms in that town, and one in the town of Roxbury; and he made and published his last will and testament, which, after his death, which occurred on the 2d of February, 1890, was presented to the surrogate, and duly proved, and letters of administration with the will annexed were issued to the defendant, who qualified, and took upon himself the duties of administration. In 1884, an inquisition de lunático inquirendo was issued out of this court, and David Hull was found to be a lunatic; and, in the proceedings had, Richard Hull, his son, was appointed committee of his estate, and Esther Hull, his wife, was appointed committee of his person. Richard Hull continued to act as committee of his estate until his death, which occurred on the 6th of August, 1886. Thereafter no committee was appointed of the estate of David Hull. Esther Hull continued to act as committee of his person until her death, which occurred November 15, 1887. After the death of Richard Hull, the only children and heirs at law of David Hull were John Hull, son, Jane Sliter, wife, of the defendant, and Esther Benedict, one of the plaintiffs. After the death of Richard, it was apparent to the children that some fresh arrangement must be entered into looking to the suitable care and protection of David Hull and his property. His wife was enfeebled, in advancing age and infirmities, and was unequal in strength and capacity to suitably care for her husband, who was then a confirmed lunatic, afflicted with senile dementia and weakness of his physical system, which rendered the care of him very burdensome. The children met on the 12th of August, and discussed the situation of affairs, and finally entered into a written agreement, called “Exhibit A,” which is set out in the findings made by the referee. In that instrument, which was execxited by the children of the deceased, and in which the wife of the deceased, Esther Hxxll, joined,, it was, in sxxbstance, provided, upon a recital that the parties, “mutually desiring a settlement of their rights and interests in and to-the property of the ■ said David Hxxll,” that Esther Hull and Jane Sliter and John Hull should sell unto Ashmun J. Benedict and Esther A. Benedict “all their right, title, and interest as heirs at law, legatees, or otherwise of said David Hull to and in all the-real property now owned by said David Hull, sitxiate in Middle-town, Delaware coxmty, N. Y.; also all their light, title, and interest as aforesaid in and to all the personal property, of every kind and description, now owned by and upon said farm of David Hull, for and in consideration that the said parties of the second part shall keep, maintain, and support in health and sickness during the lifetime of both or either of the said David Hxxll and Esther Hull, his-wife, and for the further consideration of payment to the said John Hull the sum of $800, and to the said Jane Sliter the sum of $1,800;-
In Willard’s Equity Jurisprudence (page 658) it is said:
“During the lifetime of the lunatic the next of kin have no interest in his estate. But as the lunatic, if of sufficient ability, is bound to maintain his family, and as the court is bound to see that his property is fairly devoted to that purpose, applications are not unfrequently made to the court for an order on the committee to make allowances in favor of those whom he is bound to provide for, and for other relatives of the lunatic towards whom he is under no such obligation.”
We think this case is distinguishable from Hospital v. Fairbanks, 129 Mass. 78, and Whiting v. Sullivan, 7 Mass. 107, and In re Rhodes, 44 Ch. Div. 94; and that the referee’s conclusion that the agreement, “under the circumstances of this case, in no wise affects the rights of the plaintiffs to recover in this proceeding for necessaries
Appellant calls our attention to McCreery v. Day, 119 N. Y. 1, 23 N. E. 198, which is to the effect that, where a contract is rescinded, no claim in respect to uerformance or of what has been paid or received thereon may thereafter be made, unless expressly and impliedly reserved upon rescission. We think the case does not support the contention of the appellant. And the case of Railroad Co. v. Forrest, 128 N. Y. 83, 28 N. E. 137, differs essentially from the case in hand.
2. The referee charged the plaintiffs with the use of the land occupied by them, at a sum that he found was the fair valuation of the rental, upon the assumption that the landlord or owner paid the taxes; and he found that the taxes which the plaintiffs necessarily paid amounted to §155.24, which he allowed to them in stating the account, and which seems proper to be allowed against the rent. He also found that the amount of the permanent repairs put on the buildings by the plaintiffs during the lifetime of the deceased amounted to §194.31, and that the “repairs were of substantial character, and enhanced the value of said real property, and were suitable and proper to be made, and the cost of malting them should be allowed the plaintiffs.” He properly allowed the plaintiffs to have a credit of §42.93, which was for the amount which accrued to C. J. Dickinson for shingles furnished to the committee of the deceased, and in settlement of which the plaintiffs advanced the money, and took an assignment of him from the account therefor. It was found by the referee “that this work was necessary and proper to be done. The amount of said bill was. reasonable, and, with interest to the time of purchase, amounted to §42.93.”
3. The contention of the appellant is that the referee allowed erroneously interest of §574.11. The referee has not stated the basis upon, which he allowed interest, nor the periods of time or any computation made by him of interest. We are inclined to think the case falls within the rule of Smith v. Velie, 60 N. Y. 106, where it is said:
“Interest, however, is not allowable until the accounts are settled; and the termination of the employment by the death of the master gives no right to interest from that time on the balance unpaid.”
And in Holmes v. Rankin, 17 Barb. 454, the referee’s report was made up, the value of board, lodging, etc., “without any interest thereon,” and his ruling in that regard was approved by the court. Holmes v. Rankin was approved in De Witt v. De Witt, 46 Hun, 258; and De Witt v. De Witt was cited with approval in Mansfield v. Railroad Co., 114 N. Y. 339, 21 N. E. 735, 1037; and the latter case was cited with approval in Sayre v. State, 123 N. Y. 297, 25 N. E. 163. The tenor of the cases seems to indicate that the referee fell into an error in allowing interest as stated by him in his findings of fact and conclusions of law.
4. When the referee’s report was made, chapter 686 of the Laws of 1893 was in force, which amended section 2718 of the Code of Civil Procedure; and in that section it was provided: “In deter
5. Several exceptions were taken during the progress of the hearing before the referee, and to his refusals to find, as well as to findings made by him. If the views already expressed are correct, the exceptions present no prejudicial error. See Barton v. Scramling, 31 Hun, 467; J ohnson v. Hicks, 1 Lans. 150.
Judgment reversed, and new trial ordered, with costs to abide the event, unless the plaintiffs shall stipulate to reduce the recovery of damages by striking therefrom $574.11, and any interest allowed thereon from the date of the referee’s report to the entry of judgment, in which event the judgment, as so modified, is affirmed, without costs of the appeal to either party. All concur.