Lynch v. Coogan

Wheelek, J.

The form of action is without precedent, but so unlikely to be again adopted by counsel that we shall not stop to point out its anomalous character. Evidently, when the case reached the trial court, the parties were desirous of securing a judgment upon the facts before the court, and with the consent of the parties the trial court treated the case as one in the nature of interpleader. This course admits of a disposition of all questions involved, in the litigation, while fully protecting the rights of all the parties to the litigation; and in order to end the cause we have concluded to treat the case as the trial judge did and consider the several grounds of appeal wherein are stated the claimed errors of the trial court.

An examination of the evidence satisfies us that no fact of material importance is found contrary to, or without, evidence, and therefore the motion to correct is denied.

The errors assigned in rulings on evidence are without merit.

Patrick Coogan devised to his son James a house and lot, provided he should pay to his executrix $3,000 within six months of the testator’s decease, and assume one third of a mortgage thereon; and in the event of the failure of James so to do, he willed that the property should become a part of the residue. The residue he bequeathed and devised to his wife, Mary Coogan.

Within the period of six months the defendant, Mrs. O’Loughlin, paid over to the plaintiff, who had been appointed administrator c. t. a. of the estate of Patrick Coogan, in behalf of her brother James, $3,000, to secure to him this devise, upon the agreement of the administrator that he should receive the $3,000, deposit the same in a bank, and in case the devise should not fully pass to James, he would pay this sum, with four per cent interest, to Mrs. O’Loughlin. Thereupon the administrator delivered possession of the property to James, who at this time was a tenant of the premises, and he continued in possession, paying no rent therefor, from the date of delivery of possession by the administrator to the date of sale of the premises. The reason able rental value of these premises during this period was $810.

The administrator deposited the $3,000 in a bank at four per cent interest, and subsequently, without authority of Mrs. O’Loughlin, used a part or the whole of the $3,000 to pay the debts of the estate, saving to it a sum in excess of the rental value of these premises for the period of James’ occupancy under possession from the administrator.

This property was later on sold by order of the Court of Probate to pay the debts of the estate, and in consequence James received no part of this devise. There is no residuum of the estate of Patrick.

Mrs. O’Loughlin received no consideration from the estate for the $3,000. James executed and delivered to her a mortgage and quitclaim deed of the premises, the purpose of which was to secure her for such sum in case the title to the premises ultimately vested in James, and this was not to become a loan to James until the fund should be applied in carrying out the provisions of the will, and the deeds were not to become operative until title to the premises in fact passed to James.

On the trial James disclaimed all right to this fund; Mary claimed it as a part of the residue; the administrator claimed it as part of the assets of the estate; Mrs. O’Loughlin claimed the fund consisting of $3,000 with interest at four per cent.

We see no occasion to consider whether the administrator was authorized in law to make the agreement he did. The fact is that he made it, and by it agreed to hold the sum of $3,000, paid to him by Mrs. O’Loughlin, and to repay it to her with interest at four per cent upon a certain contingency, which has come to pass. He received this sum as administrator, he has either used it for the benefit of the estate, together with a part of its increment, or he holds it in his hands as administrator, with its increment, and he is bound to abide by the agreement.

Whatever sum the estate received as interest it is obviously bound to refund. What sum represents the difference between the interest actually received and that agreed to be paid, the finding does not state; and no specific claim was made that such portion in no event could be recovered. Clearly, the estate having used the fund should be compelled to pay the value of its use, especially in view of having profited largely by its use. To hold otherwise would be unconscionable. The value of this use measured by the rate of interest agreed upon is certainly as generous a disposition of its obligation in this regard as the estate could ask. In the condition of the finding and of the claims in this particular and.the obvious justice of the judgment, we find ample justification in refusing to disturb the judgment because it may include a small sum, perhaps of inconsiderable amount, for interest, which the estate may not have received and for which its liability may be legally doubtful.

The claim that James Coogan elected to take the specific devise, and hence he and Mrs. O’Loughlin are bound by the results of his election, is immaterial to the consideration of whether this administrator should repay to Mrs. O’Loughlin the sum paid by her to him, and which sum he either expended for the benefit of the estate or it is now in his hands.

Mrs. Coogan claims the right to have set off against the recovery the value of the use of the premises during James’ occupancy. This claim can only be relevant upon the theory that this payment was made by James and was his property. If such were the fact the off-set should be allowed. But the terms under which the fund was delivered to the administrator show that, this is not the fact. The fund was paid by Mrs. O’Loughlin, it always remained hers; it was to be repaid to her in case the title to the premises ultimately failed to rest in James. She did not occupy the premises, nor did James occupy for her. Whether James should pay the value of his use is not involved in this case; the question of payment of such use was no part of the agreement made with Mrs. O’Loughlin, and hence cannot be set off against her recovery under her agreement.

We confine our discussion to the issue involved, and do not consider the question of whether the administrator became personally liable under this agreement. That issue would require a determination of whether this agreement was one which the administrator could legally make, and the condition of the record relieves us from its present consideration.

There is no error.

In this opinion the other judges concurred.