In re the Accounts of the Executors of Haines

8 N.J. Eq. 506 | N.J. Super. Ct. App. Div. | 1850

The Obdinaky.

Each of the sons get, by the will, a farm, with buildings and improvements on it, one of 73 acres, and the other, of 82 acres ; and the two, together, get 40 acres of pine land, and 22 acres of timber land, and an undivided half of the testator’s interest in a piece of cedar swamp, the number of acres in which is not stated. I am ignorant of the value of the lands devised to the sons. The two shares of the daughter and the children of the deceased daughter, as the account now stands, will be but $1781.65, each share.

Nor have I any knowledge of the amount of the debts to be paid by the sons, Executors, out of the lands devised to them.

The Orphans’ Court allowed no commissions; being of opinion, that the will required the sons, Executors, to settle the estate without charge.

The will provides, “ that my just debts and expenses be duly paid and satisfied, by my Executors, (the two sons,) out of the legacies bequeathed to my two sons.” In the lands devised to the sons they have in their own hands the fund out of which the debts and expenses are to be paid. The personal estate is not to pay the debts and expenses. The sons, to whom this fund for the payment of the debts and expenses is given, are made Executors of the will, and as such are to settle the estate. The clause may be properly read thus : my debts and expenses to be paid by my sons, whom I appoint Executors, out of the property bequeathed to them.

Paying debts is a part of tbe services for which commissions =are allowed. The debts, in this case, being, by the will, to be paid out of property devised to the sons, they should receive no ■commissions for that service. The devise to them was the consideration, in the mind of the testator, why the sons should pay the debts. Testators frequently provide in their wills a mode or amount of compensation to Executors for settling the estate.

The word “ expenses” is never used to signify expenses during the life of the testator ; they would be debts. The clause may be read thus : all my debts, and the expenses, to be paid by my Executors out of the property devised to my sons; and I think this would mean, the expenses of the Executors in settling the estate, and, the will making the sons Executors, would put it on them to pay the debts.

The clause is in substance this: That all my just debts and expenses be paid by my executors out of the property given to them; that is, that all debts and all expenses be paid by them.

If the bulk of the estate is given to the sons, it is a persuasive consideration in favor of the conclusion reached by the •Orphans’ Court. The Judges of that Court may be supposed to have known whether the sons had the bulk of the estate. No information has been given tome by the appellants as to the value of the lands given to the sons. The parol evidence excluded by the Orphans’ Court was inadmissible. The order of the Orphans’ Court will be affirmed.

Order accordingly.