36 N.J. Eq. 288 | N.J. Super. Ct. App. Div. | 1882
Thomas Aldridge, the appellant, proved the will of Richard. Parkes, deceased, March 10th, 1873. He filed an inventory on the 27th of that month, and from that time until May 21st, 1879, he filed no account. In January, 1878, Sarah J. McClelland, legatee and devisee under the will, by her petition to the orphans court, stated that for then over four years he had filed no account; that proceedings in bankruptcy had been instituted against him, and that he had therein been adjudicated a bankrupt. Thereupon the orphans court, by their order of January 29th, 1878, required him to account or show cause on the 12th of February then next, why he should not do so. On the last-mentioned day the court made an order stating that it appeared.
The will gives to Sarah J. McClelland the testator’s brick house and lot in fee, and the rents, issues and profits of another property, known as (he shop, for life. It also gives her an annuity of $180, to be paid in monthly payments by the executor.
It appears, by the account, that the payments made to Coeyman and Cummings were made at the request of Sarah J. McClelland, for repairs to the brick house. They were for work done to the house for her after the testator’s death, and therefore after she became the owner of the property in fee. Clearly, they are not proper charges against the estate, and therefore are not to be allowed to the executor in the account. It is urged on behalf of the executor that they should have been allowed as payments made to Sarah J. McClelland. But there was nothing before the court to justify such an allowance. There was no evidence that the payments were made under an agreement that they were to be regarded as payment of so much of the annuity, and they do not appear in the account as payments to Mrs. Mc-Clelland, but as charges against the estate. The charge of $25 cash paid to her was properly disallowed. It appears by the
He insured the property for the estate of Mr. Parkes, but the brick house, as before stated, became, at the death of the testator, the property of Mrs. McClelland, by virtue of the devise in his will, and so too she became the owner of a life estate in the shop property. The money paid by the executor for insurance on her property, of course is not a proper charge against the estate. It does not appear that he was under any obligation whatever as executor to insure the property. The charges were properly disallowed.
The executor was justly chargeable with interest on the money in his hands not expended in the payment of claims against the estate. He never kept it separate from his own funds, and he admits that he used it for his own purposes. The money from which the balance is derived came to his hands May 24th, 1874. The court below by mistake charged him with interest from March 24th. It also omitted to give him credit for $219.46, the amount charged in his account for his commissions, which amount he paid over to the administrator pursuant to an order
Amount of debits.................................................................. $4,736 50
Amount of credits claimed by the account, including commissions....................................................... $2,856 03
Deduct disallowances.............................................. 545 92
$2,310 11
$6 00 Add costs on settlement, not included in the account— Advertising...........................................
17 80 Court and surrogate................................
- 23 80
-- 2,333 91
$2,402 59
Interest at seven per cent, per annum on this amount, from May 24th, 1874, to July 4th, 1878, four years, one month and ten days... 691 40
Interest from July 4th, 1878, to July 29th, 1881, at six per cent. per annum, on $2,402.59-.................................................. 442 33
$3,536 32
Deduct amount paid July 29th, 1881......................... $1,880 47
Also amount paid in pursuance of order of August 9th, 1881................................................................. 219 46
Also amount of stenographer’s bill, paid Sept. 30th, 1880, 57 80
Interest thereon............. 2 80
- 2,160 53
$1,375 79
The decree of the court below will be modified accordingly. The costs of the appeal should be paid out of the estate.