3 N.J. Misc. 976 | Essex Cty. Surr. Ct. | 1925
Raffaele Jula, late of the city of Newark, died in the month of November, 1900, and Antonio- Fabiano was duly appointed administrator of his estate, which amounted to the sum of $1,077.50. On April 2d, 1902, the said administrator filed, in the office of the surrogate of this , county, an accounting showing a balance of $908.42 for distribution among the next of kin of the said intestate. 'This account, however, was merely filed, and was never allowed by the orphans court. It therefore is not an account at all in the true sense of that term, but merely a statement showing the then condition of the estate.
The administrator took no further proceedings in the matter until he was compelled, by order of this court, made on January' 30th, 1925, to settle his account as such administrator. The account, however, ivas not actually filed until the
Exceptant, however, pointed out that the two items of $37.50 each, one claimed to have been paid on December 14th and the other December 23d, 1900, were duplications, and an inspection of the vouchers filed shows that there are duplicate vouchers for a single payment. The administrator will therefore be surcharged with the sum of $37.50.
Another exception urged was the payment on, May 8th, 1902, to Antonio Jula, on account of Raifaele Jula, of the amount of $116.40. It was shown that this payment was to intestate’s father, who was not one of the next of kin, and, therefore, was not entitled to participate in his estate. This exception will therefore be allowed.
It will be recalled that the administrator was appointed during the year 1900, and it was not until April 2d, 1902, that he filed his first account. Since that time he has made, as appears from his account, small payments to the next of kin of intestate during the years of 1900 to 1903, but that he made no payments since that time.
On the part of the exceptant, it is urged that inasmuch as this fund in the hands of the administrator was not invested, and the administrator, having failed to either invest the fund or to pay it to the next of kin, is chargeable with interest thereon. Asked what he did with the money, the administrator first said that he had it in his safe. Being then charged with having no safe, he said it was in his son’s safe. When attention was called to the fact that at the time this money came into his hands his son was but a few years old, and, consequently, could have had no safe, he then said he kept it in a box in his room, later stating that he kept it in his trunk.
Counsel for accountant attempted to palliate this story by the fact that accountant was an Italian not sufficiently versed
The accountant, in response to a question, admitted that he used a portion of this fund in the purchase of certain real estate which he purchased for his own use. In response to questions by his own counsel, he said that this statement made by him was not true, and that he had never touched the fund, but that it had been lying in the form of cash in his 'trunk.
This story taxes the credulity of any normal-minded man to ask one to believe that this accountant had several hundreds of dollars belonging to this estate in his trunk from 1902 to 1925, a period of twenty-three years, is a story too preposterous to admit of serious consideration.
It is well settled that the balance of assets remaining in the hands of an administrator after payment of debts should be paid to those interested, or put out at interest for their benefit. If the funds are used by the administrator, he is required not only to pay interest, but to account for all the
It is contended on the part of exceptant that accountant followed this course of conduct by advice of counsel, and lie nanied an attorney of this state who has been dead for some years. While it seems incredible that any attorney should give such advice to accountant, still, such a defense is not applicable to him unless he acted in good faith, and inasmuch as I am fully satisfied that the defendant used a portion if not all of this money for his own personal use, it cannot be said that he acted in good faith. But be that as it may, the fact of retaining this money all these years without attempting to pay it to those to whom he knew it was due is certainly not good faith on his part. In his account, now under consideration, the accountant shows a balance in his hands of $475.22. The last payment made by accountant on account of the estate was on December 16th, 1903. He will therefore be held chargeable with simple interest on the sum of $475.22 from December 16th, 1903, at the rate of six per cent, per annum to the date of payment.
Accountant prays allowance under date of March 22d, 1902, for the sum of $73.08 as his commissions as administrator of the estate. It is well settled that an executor, administrator, guardian or trustee, is not entitled to commissions until they are settled and allowed by the orphans court, and that that cannot be deducted by him until they are so fixed and allowed. Lathrop v. Smalley, 23 N. J. Eq. 192; Wyckoff v. O’Neil, 72 N. J. Eq. 880. Tf accountant takes commissions before they are allowed by the court, he occupies the position of a borrower of the amount so taken, and is chargeable with interest thereon to the time of his accounting. Wyckoff v. O’Neill, supra. It is also well settled that commissions are a compensation for the faithful discharge
The accountant has certainty not performed his plain and simple duty by paying the balance in his hands to the persons entitled to it, or, as an alternative, of investing the money. He has therefore forfeited his right to»' commissions, and the same will be disallowed, and, inasmuch as he has already paid himself commissions, he will be surcharged with interest upon the amount which he took from the estate at the rate of six per cent, per annum. ,