Williams v. Conroy

MYRICK, J. The motion to dismiss the appeal is denied. Though the action was brought by Williams, and he remained as plaintiff in the case as a whole, yet the portions of the decree appealed from relate, on their face, only to matters in controversy as between the defendants. In such matters Williams had no interest, would not be affected by any order relating thereto which might be made on the appeal, and was, in no respect, an adverse party to the appellants.

The appeal was taken from the order denying a motion for a new trial, and, as said above, from portions of the decree. But one undertaking was necessary to be given, no stay being required.

Substantially, the matters presented by the appellants for consideration on this appeal relate to the expenditure by Williams, while trustee, of thirty-nine thousand nine hundred and eighty-six dollars and eighty-seven cents, in improvements upon a lot which had been specifically devised to the Ketlers, and whether that amount should be deducted from the general trust fund belonging to the Conroy and Ketler trusts, so [193]called, and, in the adjustment of the effects on hand as between the two trusts, those effects should be divided equally, or whether the Conroy trust should have allowed to it a sum sufficient to balance the amount expended on the Ketler lot, so as to make equal the amounts to go to each trust, taking into account the amount expended. As to this expenditure, the findings of the court, filed November 11, 1875, as the result of the trial had in April, 1874, contain the statements that these sums were expended by plaintiff out of the mixed trust funds in-his hands, in the construction and erection of a brick and iron building and in the erection of a party-wall on the lot; that the building was a permanent and substantial structure, was erected at fair and reasonable prices, and that the rents were thereby increased from about two hundred and eighteen dollars to about four hundred dollars per month.

These findings were supported by evidence, as appears in the bill of exceptions of the appellants, wherein it is stated (page 108 of the transcript) that the plaintiff testified that the property when it came to his possession was scarcely tenantable; that the building erected by him on the lot was a permanent and substantial building; that the prices paid for it by him were fair and reasonable; that there were several bids for the work, and he gave it to the lowest responsible bidders; that the old buildings were in such condition that they produced but a very small rental, and that he erected a building of such a permanent character that a benefit accrued to the heirs and those that survivé them; that it will last fifty years; and connected with this testimony were statements of rents received by him.