46 N.J. Eq. 528 | N.J. Super. Ct. App. Div. | 1890
The principal parties to the appeal in this case are the administrators of Joseph Andress, deceased. The appeal presents two .questions — -first, were the commissions allowed excessive? and, second, was the respondent awarded more than his just proportion of them ? The appellant contends that both of these questions should be answered in the affirmative. They exhibit the grounds of his appeal.
The amount allowed for commissions is, in my judgment, excessive. The period covered by the administration was less than fourteen months. Letters of administration were ordered to be issued on the 2d day of September, 1887, and the account of the accounting administrator (the appellant) was filed on the 15th day of October, 1888. Commissions, at the rate of four per cent., were allowed on a sum slightly in excess of $107,500, amounting to a trifle in excess of $4,300. The principal part of the estate consisted of securities, which were never collected or converted into money, but were distributed, in specie, to the next of kin before the filing of the account. The evidence does not show, with certainty, just how much was thus'distributed in specie — the accounting administrator, at first said, in giving his evidence, that about $66,000 had been assigned in securities to the next of kin, and then that twenty shares of bank stock had also been assigned, and, lastly, that $76,000 in bonds and mortgages had been distributed — but the general tenor of the proofs goes to show that nearly the whole estate distributed to the next of kin was passed over in securities held by the intestate at the time of his death. All that was done in the administration of that part of the estate, which was thus distributed, was to keep the securities safely, in a secure place, collect their income, and
Rut it is said, suppose the amount allowed for commissions is excessive, the appellant has no right to complain — he is not thereby aggrieved, and it is only a person aggrieved by an order, sentence or decree of the orphans court who may appeal therefrom to this court. The appellant is one of the next of kin of the intestate, and so is the respondent. They occupy a dual position towards the estate; they are its administrators and also two of the next of kin. A person aggrieved has been defined to be one whose pecuniary interest is directly affected by the decree ; one whose right of property may be established or divested by the decree. Swackhamer v. Kline’s Admr., 10 C. E. Gr. 503, 505; Parker v. Reynolds, 5 Stew. Eq. 290, 293. As to that part of the commissions Avhich is in excess of the correct amount,
The orphans court divided the commissions equally. The appellant complains of this method of division as unfair to him, and, I think, justly. The rule prescribed by the statute on this subject is, that where any difference arises between administrators as to the proportions in which commissions shall be divided, ■the court shall determine the same, having regard to their respective services. Rev. p. 776 § 112. The plain direction of
The claim that the appellant deprived himself of the right of appealing from the order dividing the commissions, by consenting to a division by equal shares, is not sustained by the proofs. Indeed, the proofs so entirely fail to show that that part of the-order was made by consent, that I have not thought it necessary to examine the question, whether evidence aliunde the order, and consisting entirely of the recollection of witnesses, is competent to prove the fact that the order was made by consent.
For the reasons stated orally on the hearing, that part of the-order brought up for review which allows counsel fees to the-counsel of the respondent, will be affirmed.
No costs or counsel fees will be allowed in this court to either party as against the other. Each must pay his own' costs and counsel fees.