80 N.J. Eq. 565 | N.J. | 1909
The appeal in this case is from a decree of the prerogative court affirming a decree of the orphans court of Camden county sustaining exceptions filed to the final account of Ida E. Wagner, executrix of the estate of Elizabeth Walsh, deceased, by legatees under the will of the decedent. The prerogative court affirmed the decree of the orphans court upon the opinion delivered in that court by Joline, judge, which was as follows:
“The matters in controversy are contained in exceptions to the allowance of five items in the final account of Ida E. Wagner, executrix of the estate of Elizabeth Walsh, deceased. Elizabeth Walsh, who was the mother of the executrix, died upon the 25th day of December, 1904, having first made her last will and testament, dated February 25th, 1904, in and by which she left her personal property to her children, Ida E. Wagner, Clara J. Chadwick, Ellen M. Fennimore, Emma L. Deegan, and to a grandchild, Dora Meister. This will was admitted to probate on the 13th day of January, 1905, by "the surrogate of the county of Camden, and letters testamentary were granted to said Ida E. Wagner and Clara J. Chadwick, who were named as executrices.
“The prayer of the bill was that these assignments should he set aside, and that they, together with the rest of said personal property, be declared to be the property of and a part of the estate of the said testatrix at the time of her death, to be duly accounted for and administered. A decree pro confesso was taken against Clara J. Chadwick; but Ida E. Wagner filed a
“Ida E. Wagner, in her account, the said Clara J. Chadwick having been discharged as an executrix, charges herself with the proceeds of the sale of three of said mortgages, with the principal and interest of three others, with the amount realized from the sale of the stock of the Camden Eire Insurance Company, with household furniture valued at $200, alleged to be in her possession, and with cash amounting to $1,000, alleged to be in her possession. She prays allowance for said household furni- */ ture, claiming that she had never received it; for said cash, claiming that she had no knowledge of it; for part of the proceeds from the sale of mortgages advanced and paid by her to the testatrix, amounting to $816.80. This is the Abigail E. Hugg mortgage with which she had charged herself. She further prays allowance for claim of Ida E. Wagner for furnishing said testatrix with a home the rest of her days according to contract, $6,920, with interest from May 4th, 1904, to December 13th, 1907, $806.18—total, $7,726.18. The other allowances prayed for are the amount paid for premium on executrix’s bond for proctor’s fee and for commissions. The amount with which the accountant charges herself is $8,884.70, while the amount for which she prays allowance, exclusive of proctor’s fees, is $10,-166.44, thus leaving a deficit in the sum of $1,281.74.
“To all of the items for which allowance is prayed, except that for the household furniture, that for surrogate’s bill, and that for proctor’s fees, exceptions were filed by Ellen M. Eennimore and the administrator of Emma L. Deegan, deceased; said Ellen M. Eennimore and Emma L. Deegan in her lifetime being the complainants in the suit in chancery hereinbefore referred to. When the account first came on for hearing, objection was made to the introduction of any testimony upon the first three items excepted to for .the reason that they were part of the subject-
“Where the second action is upon a different claim or demand, but between the same parties, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. City of Paterson v. Baker, 51 N. J. Eq. (6 Dick.) 54. See, also, Mershon v. Williams, 63 N. J. Law (34 Vr.) 401; Clark Thread Co. v. William Clark Co., 55 N. J. Eq. (10 Dick.) 662; Mercer County Traction Co. v. U. R. R. & Co., 64 N. J. Eq. (19 Dick.) 594. The judgment is final be
“Referring now to the exceptions, it will be seen that the first is to" the prayer for allowance of $1,000, and that the second is to the prayer for allowance of the proceeds of a mortgage claimed to have been advanced to the deceased, amounting to $816.80. This is the Abigail F. Hugg mortgage, with the proceeds of the sale of which the accountant charges herself.' The conclusion which I have reached with regard to these items is that they are res adjudícala. An examination of the record in the chancery suit will show that each was included in the bill of complaint, and that the plea makes no exception, but alleges that all of the said bonds, mortgages, shares of stock and other personal property, in the bill of complaint mentioned, passed to the said Ida E. Wagner for a good and valuable consideration. The decision of the court was unquestionably adverse to this contention and necessarily included everything named in the plea. The defendant adopted a certain procedure, the legal effect whereof was an admission that she had in possession as owner certain things, including these two items excepted to, and the court rendered a decision, the legal effect whereof was that she did not own said mortgage, and said money of which she admitted that she had possession, and that she should turn them over to the estate of
“The third exception is to the item wherein the accountant claims compensation for furnishing Elizabeth Walsh with a home for the rest of her days according to contract. The amount claimed is $6,920, with interest from May 4th, 1904, to December 13th, 1907, amounting to $806.18, making a total of $7,726.18. The amount claimed, less the interest, is the aggregate amount of the mortgages and of the Camden fire insurance stock set out in the bill of complaint. In this claim there is included the Abigail E. Hugg mortgage, which is the subject of the second exception, and with which the accountant charges herself, and for which she claims allowance twice, once in the third item of her prayer for allowance, and once as a part of the fourth item.
“In the chancery suit the defendant claimed each of said mortgages and said stock upon an assignment made by the decedent based upon a good and valuable consideration; the same being substantially an agreement to keep her mother during the rest of her days. She offered very little evidence in support of the alleged consideration, and the determination of the court was as follows: "'On this evidence I find that the defendant has not supported her, plea that this $8,000 of property was transferred to her by the testatrix for a good and valuable consideration.’ Proof of the assignment of three of the mortgages only was
“It will be seen that the foundation for this claim is the same as that in the chancery suit for the assignment of the mortgages and other property, namely, the agreement to care for the mother. It was decided that it did not furnish a good consideration therefor, and I think that that decision is res adjudicada, as to the present proceeding, where, upon the same agreement, tire defendr ants in the preceding suit claim, not the mortgages and other
“The fourth exception is the claim of the accountant for the premium of $52 paid for her bond. It is true that she was ordered by the court to give a bond; the alternative being her discharge as executrix. I think that she should be allowed this charge. The security was demanded by the very parties who now except to the expense occasioned by their actions, and, if the executrix had failed to furnish the bond and had been discharged, the substituted administrator would have been obliged to furnish one, incurring in all probability the same expense. On the allowance side of the account there is a space left for proctor’s fees. A fair allowance should be made for services rendered to the accountant by her proctor; but it cannot include any allowance for services rendered in the chancery suit, or in this procedure in support of the items for which Ida E. Wagner advances a claim. With respect to said suit and to those items, she personally must compensate her counsel. I will hear counsel as to a proper allowance.
“The fifth exception is to the claim for commissions. Eull commissions are claimed even on the sum of $200 for household furniture, for which allowance is prayed and not excepted to. The rule is that allowance shall be made with reference to the actual pains, trouble and risk in settling the estate rather than in respect to tire quantum of estate> and that it shall not exceed certain rates. P. L. 1898 p. 782 §§ 108, 129. There was slight trouble and no risk incident to the settlement of this estate. The moneys were well invested, and there seem to have been no debts. The entire duty of the executrix consisted in keeping the estate intact, in collecting the income, in attending to the few matters required by law to be done, such as probating the will, .making and filing an inventory and appraisement, taking the
“It cannot be said that the conduct of the executrix, Ida E. Wagner, exhibited sincerity and candor. After her mother’s death she denied that there was a will or any estate. She later admitted that there was a will, but denied that there was any estate. When a suit was commenced by Mrs. Chadwick, in chancery, to have the property in her custody declared the property of the estate, she induced her in some way not to prosecute it, and it was onliy after being cited to do so that she filed the final account now under consideration. She knew that her right to the property left by her mother, was disputed by the heirs, and, even after she induced Mrs. Chadwick not to proceed against her, she knew when the bill was filed by Ellen M. Fennimore and Emma L. Deegan on November 10th, 1905, that such dispute still existed. Knowing this, and knowing that the case might be decided against her, it was her duty to conserve the estate, and if she disposed of any portion of it to invest the mone]^. Instead of doing this, she charges herself only with the amount realized from the sale of certain of the securities, as follows: Hugg mortgage of $800, $816.80; Baxter mortgage of $1,200, $1,242.23; Baxter mortgage of $700, $733.36; Camden Eire Insurance Company stock (seventy-two shares), $720.
“'The mother died on December 25th, 1904. It was not proved when the Chadwick suit was commenced; but the Fennimore suit was commenced in November, 1905, and the file in this court shows that steps were taken prior to that to bring Mrs. Wagner to account. She knew, therefore, that her light to this property was seriously disputed, and she should have-treated the entire property, both principal and interest, as possibly belonging to the estate of her mother, and as such it was her duty to keep it invested. She appears not to have done this with regard to the above items. They aggregate $3,420. They had been, and probably were, invested, and, at five per cent, per annum, the income would have been about $171 a year, and for two years alone, $342, nearly the amount of the commission. The executrix charges herself on these sums above the principal with only $92.39, for I assume that, as there were seventy-two shares of the stock of the insurance company, and it sold for $720, the price
“The conclusion reached is that the first, second, third and fifth exceptions should be sustained, and that the fourth exception should be dismissed. This determination having been reached upon the application of the above principles of law, it is unnecessary that the evidence adduced should be further considered.”
We concur in the view of the prerogative court that the decree of the orphans court was properly made, and are satisfied to rest our conclusion upon the very satisfactory opinion of Judge Joline.
The decree under review will be affirmed.
For affirmance—The Chief-Justice, Garrisoh, Swayze, Eeed, Parker, Bergeh, Voori-iees, Mihturh, Bogert, Vre-DENBURGH, YROOM, GRAY, DILL, COHGDOH—14:
For reversal—Hone.