17 N.J. Eq. 419 | N.J. Super. Ct. App. Div. | 1864
This case tomes before the court upon an appeal from a decree of the Orphans Court of the county of Middlesex, upon exceptions filed to the account of the executors as reported for settlement and allowance. The first ground of appeal is, that the court below sustained an exception to the following item in the account, viz, “ Gash paid Eliza S. Egerton, $800.”
The charge is attempted to be supported on the ground that it was a donation mortis causa. The evidence in sup-? port of the claim is, that the testator was the owner of eighty shares in the City Bank of Newark, which, by his will, he had bequeathed to his wife. On the 7th of November, 1859, the directors of the bank resolved to increase its capital stock $50,000, giving to its old stockholders the privilege of subscribing for the new stock, in proportion to the amount of stock held by them respectively. They ordered books of
To constitute a donatio mortis causa, there must not only be a clear intention to give, but an executed gift. “Gifts of chattels personal, are the act of transferring the right and the possession of them; whereby one man renounces and another man immediately acquires, all title and interest therein; which may bo done either in writing) or by word of mouth, attested by sufficient evidence, of which the delivery of possession is the strongest and most essential.” 2 Bl. Com. 441. This definition of a gift inter vivos, is equally applicable to a donatio mortis causa. There must he a subject capable of passing by delivery, and an actual delivery at the time of the alleged gift. Ward v. Turner, 2 Vesey, sen., 431; 2 Kent’s Com. 445; 1 Story's Eq. Jur., § 607 a, c; Roberts v. Wills, Spencer 597; Parish v. Stone, 14 Pick. 203; 1 Williams on Ex’rs 651-4.
The evidence does not bring the present case within the principle. The gift must have been either of the stock, or of the money to purchase the stock. It was clearly not a gift of the stock, for the testator never owned it. The stock was
Now, if it had been a donation by the testator mortis causa, the right of the donee would have been absolute upon the donor’s death, subject only to the rights of creditors. The money would have formed no part of the estate. It would not have been the subject of ecclesiastical jurisdiction, nor have formed a component part of the executor’s account. The donee would have taken not through, but paramount to the executor. Nicholas v. Adams, 2 Wharton 22.
It is clear that, at the time of this alleged gift, there was and could have been no delivery. The subject matter was not capable of passing by delivery. All that the husband could claim at the time of the pretended gift was the mere privilege of subscribing for the stock. And after the subscription had been made, all that he had was the right of having the stock issued upon the payment of the par value. Giving full credence to the evidence, it proves nothing more than an intention on the part of the husband that the wife should have the benefit of his privilege of subscribing for the stock of the bank. If he had entered into an express contract with her that she should have the advantage of the contract, it would, as a contract inter vivos, have been null and void. Nor could it operate as a donatio mortis causa. Even the giving of his own promissory note, or acceptance, by the donor to the donee, it is well settled will not constitute a donatio mortis causa. It is not the gift of a chattel, but a mere contract to pay. It is otherwise with the gift of a note, acceptance, or bond of a third party, which may pass by endorsement or delivery. Holiday v. Atkinson, 5 Barn. & Cress. 501; Raymond v. Sellick, 10 Conn. 484; Parish v. Stone, 14 Pick. 203; Harris v. Clark, 2 Barb. S. C. R. 94;
The second ground of appeal is, that the court sustained an exception to a charge of $200 for- cash paid Andrew T. Anderson. The bill rendered was for services of Anderson and wife from July 2d to December 23d, 1859, and was paid by one of the executors. Anderson was a brother of Mrs. Egerton. He went with his wife to the house of the testator in July on a visit, but, at the desire of the testator, remained till his death. The evidence as to the value of their services, or whether they were rendered for hire, or as mere offices of friendship, is conflicting. Clothing and dresses are proved to have been purchased in the testator’s name and given to Anderson and wife, to the value of about $50, which, according to the testimony of several of the witnesses, was more than their services were worth. The proof would, in my opinion, have warranted an allowance of at least a part of this charge, but the preponderance of the evidence is not so decisive as to require a modification of the decree. The fact that a bill has been paid by the executor affords, under ordinary circumstances, a fair presumption of its justice and propriety. As the legal representative of the estate, he is authorized to pay all just claims against it. And while he acts within the line of his duty and in good faith, every fair presumption is to be made in his favor. He is, however, but a trustee for others, and may not sacrifice their rights with impunity. If he pays groundless or illegal claims upon the estate, he must bear tlie loss. If he pays disputed claims, especially after being warned, he acts at his peril. Good faith and a regard for the interest of the estate must characterize all his measures. In this case, the interest of the wife of the testator, who was the legatee of the great bulk of the estate, was in direct conflict with the interest of the residuary legatee, who alone is interested in this controversy. There is a manifest disposition on the part of the executor, by whom this claim was paid, to favor claims against the estate. The executor knew that this claim arose under circumstances
The exception to the charge made by one of the executors of $1150, for services rendered by him in the lifetime of the testator, was properly sustained. The executor was a man o.f business, and was long in habits of intimate friendly and business relations with the testator. Ho book account is produced, no- charge for the services appears to have been made, nor is there the least intimation in the evidence, that in the testator’s lifetime it was expected or intended that such charge would be made-. On the contrary, the executor repeatedly declared that he- should make no charge, and on one occasion, after the death of the testator, said, as he himself admits, that he would be the most ungrateful of mortals to do so. The services rendered by the parties to each other appear to. have been mutually beneficial, and it is apparent that no pecuniary remuneration was expected or intended. The charge in the account was, in fact, an after thought. It was not made when the account was originally filed, but was added after exceptions had been taken to the account.
The court were right in charging the executors, individually, with all the costs of the suit. The evidence in the cause and the whole history of the case, creates the belief that most of
The decree of the Orphans Court is affirmed, with costs.