Miller v. Whittier , 36 Me. 577 ( 1853 )

Rice, J. —

This case which has been before this Court on two former occasions, 32 Maine, 203 and 33 Maine, 521, now comes up on exceptions to the rulings of the Judge before whom the report of the master was presented, with the exceptions filed to that report by several parties to the bill. The exceptions to the rulings of the Judge below, present for the consideration of this Court, all the exceptions which were taken to the report of the master.

The instructions under which the master acted, were “ to state an account with Whittier since Nov. 17, 1845, exhibiting the sum due to him by the contract, and the claim which he justly has against the estate for services and expenditures ; what property, securities, and means, including rents and profits he has received from it, and the conveyances made, and the amounts received and receivable therefrom. Also to state the account due bona fide to Jones on the several mortgages, and the rents, profits and income received by him from the property. And to state the amount originally due to Mrs. Whittier by the mortgage to Smith, and the sum justly due tó her on that account.»

Whittier claims to have acted as the agent of the 'owners of the estate, and as such to be entitled to a stipulated sum, $900, as an annual salary for himself, and also to be entitled to compensation for the services of his wife and minor, children upon the estate.

The contract to which both parties refer as the basis of their claims, is dated Nov. 17, 1845, - and is recited, at length, in 32 Maine, 203. The parties to that contract, at the time it was executed, evidently contemplated an arrangement which was to continue one year only, during which Whittier was to receive a salary of $900, and it was the expectation of the parties that at the end of the year, all the affairs connected with the estate should have been finally adjusted and closed up. Rut the year expired and neither party made any movement to procure a final settlement, and the master states in his report, that from the end of the first year, the defendant seems to have treated the estate as his own. The papers and evidence show no claim on his part to the salary, and no recognition of his right to it on the part of the owners. For this reason, - perhaps, the accounts of Whittier have been so loosely kept, as to present no satisfactory basis upon which the master could state an account between him and the estate, and he came to the conclusion, that as the actual receipts and expenditures with which the estate should be charged could not be ascertained and stated from the books and papers, it only remained to charge the defendant Whittier, with such items and income of the estate from various sources, by him received, as he should be rightfully charged with, and to make for him such allowances on the various •claims'as will be a just compensation for bis services and expenditures and claims against the estate.

Most of the exceptions of the defendant Whittier, are founded upon objections to the basis assumed by the master, on which to state the account between the parties. It will therefore be unnecessary to notice all of them in detail.

It was the duty of the defendant, who claims to have acted as the agent and trustee of the owners, to have kept an accurate (account) of all his transactions with the estate. He had the power, and could have so kept his accounts as to have •made all his transactions plain, and to have presented his'claim upon his principal in such a manner as to preclude all uncertainty as to the rights of the parties. This he has failed to do, and the master has been compelled, in order to state an •account, which should be satisfactory, to adopt the basis upon which he has acted. Having no certain and reliable data upon which to proceed-, he was authorized to exercise a sound discretion, upon the whole evidence presented, and so to state bis account, as to do justice to all parties, as nearly as practicable. Dexter & al. v. Arnold & al., 2 Sum. 108; Lupton v. White, 15 Ves. 440. And the defendant, who by his negligence has caused this necessity, is not in a position to complain.

As to the fourth exception, it does not appear that the $3000 allowed by the master, was not sufficient to cover all the expenses for repairs and improvements made by the defendant. Exceptions are to be regarded so far only, as they •are supported by the special statements of the master, or by •evidence which ought to be brought before the Court by reference to the particular testimony on which the exceptor relies. Harding v. Hanley, 11 Wheat. 103. There is nothing contained in the report, nor any evidence presented to the Court, which would lead to the conclusion that the master erred in this matter.

The sum secured by the Cartland mortgage, referred to in the defendant’s 12th exception, was paid several years before the adjustment in 1845, though the mortgage was not discharged by Cartland at that time. This- claim was' not filed among the schedule of liabilities, at the time of that adjustment, and the bill and answers contain no reference to that debt. The presumption therefore is, that the claim had been settled by the parties, before the present controversy arose. At least there is no sufficient evidence to show that it should now be deemed an existing charge upon the estate.

The other exceptions of Whittier arise from objections to the basis assumed by the master. That basis being sustained, the exceptions necessarily become unavailing.

The defendant Jones has received conveyances of different portions of the estate from Whittier, some of which are in form absolute, and all of which the plaintiff alleges were fraudulent. But this Court, when this case was before it on a former occasion, 32 Maine, 521, found that the charge of fraud in these conveyances was not sustained by the proofs, but that the conveyances referred to, operated as mortgages to secure the amount in which Whittier was, or might be, indebted to Jones. The mortgages in the hands of the Fallons were of an earlier date than those conveyances to Jones, and he must have had knowledge of their existence before he made any advances under the securities which he held upon the estate.

To preserve his own securities, it became necessary to redeem the estate from the Fallons, and to. effect that object he instituted and prosecuted a bill in equity. Though this proceeding was for his own benefit, to protect himself against prior incumbrances, it also enured to the benefit of other parties, whose duty it was to have redeemed the estate from these mortgages. They cannot, therefore, justly complain, that they are required to pay the reasonable and necessary expenses by which the estate was preserved from forfeiture. The defendant’s exceptions to the decree of the Judge, on this point, are sustained, and the report of the master affirmed.

As to the charges made by Jones against Whittier, for his services, trouble and expenditures, in defending this suit, no satisfactory reason has been suggested for allowing them against the plaintiff. Those transactions were entirely between Jones and Whittier and should be adjusted by the parties interested.

The exceptions of Jones to the decree of the Judge, with the exception above, are overruled.

The exceptions of the plaintiff to the master’s report are also brought before us.

To the first of plaintiff’s exceptions it may be remarked, that he does not place himself in a position to claim the utmost that might have been made out of the estate. He is not himself free from fault. By failing to comply with the terms of the contract of 1845, he left the defendant in a situation of difficulty, so that the estate was not made as productive as it otherwise might have been. It was, therefore, proper that the master, in stating the account between the parties, should exercise a sound discretion, ill view of all the circumstances and facts in the case. Our attention has not been called to any evidence in the case which shows, that the master has fallen into error, in the result to which he has arrived in this branch of the account.

The inference to be drawn from the contract of Nov. 1845, is, that Whittier had a claim then due against the estate for $1500. This sum was to have been secured by mortgage on the property, at such time as should be agreed upon. That mortgage was never executed, probably for the reason, that the affairs of the estate were never closed up as contemplated by that contract. But that would seem to be no good reason why the sum then due Whittier should not be upon interest. We think it should. The plaintiff’s second exception was therefore properly overruled.

The plaintiff’s third exception is sustained for reasons already stated for overruling the second exception of the defendant Jones.

The plaintiff’s fourth exception is also properly sustained. By reference to the several conveyances from Whittier to Jones, it will be perceived, that they only purport to secure what may be due by note, account or otherwise, by the 23d of November, 1849. Advances made and credits given to-Whittier after that time, are- not covered by these mortgages, and cannot, therefore, be justly chargeable upon the estate-. In the most favorable view that can be taken for Jones, advances and credits to Whittier, under- these mortgages, should have ceased on the service of the plaintiff’s bill on Jones. The allowance of $1527, is therefore properly reduced to-$358,40.

The plaintiff’s- 5th and 6th exceptions refer to the amount allowed to Nancy Whittier. The contract of Nov. 17, 1845, was intended to be an adjustment of the affairs of all parties, interested in. the estate up to that time. The stipulation, for the payment- to Nancy Whittier of three- thousand dollars, was. evidently intended to be a substitute for her existing rights in the estate-. What those rights were-, was then well known to Wendell & Co., the plaintiff’s, assignors, and having been thus recognized and provided for, it is now too late to inquire into the consideration upon which they originally rested. Those exceptions were properly overruled.

The items which are deducted from the account of Jones, having been charged by the master to Whittier, are to be deducted from the balance due from Whittier to the plaintiff.

The plaintiff is also to produce and deliver up to Whittier the notes formerly held by Grant and. Stone against him, stated, in the contract of 1845, to amount at that time to $10500.

The master is also to find and state what amount, if any thing, shall be charged to Whittier for the use and occupation of the estate for the additional year, and add- the sum to-the account.

The decree of the Court below is to be modified so as to conform to these principles, and will then stand as the decree of the Court.

Shepley, C. J. and Tenney and Hathaway, J. J., concurred.