12 N.J.L. 316 | N.J. | 1831
delivered the opinion of the court.
In this case, it appears, that in August term, 1827, the account of Jacob Johnson and Julian Eicke, Jr., deceased, executors of Peter Eicke, Sr., deceased, “ having been reported by the surrogate for allowance, and the same appearing to have been duly advertised according to law? and no objections being made thereto, was allowed and confirmed in all things” by the judges of the Orphans’ Court of Hunterdon county.
In October term, 1827, on application in behalf of the above defendants, a rule was obtained “to show cause at the next term why the account filed should not be opened for restatement.”
In August term, 1829, after hearing the proofs and arguments, the court “being satisfied that in the said account there was an apparent mistake,” decreed, “ that the account be opened for restatement,” and ordered the defendants to file exceptions in ten days, and that the account be referred to auditors, &c.
Upon application of the executors, the court granted a state of the case, certifying — “ that the evidence read on the argument of the rule was — •
2. The will of Peter Eicke, deceased, the testator.
3. The inventory of the estate of the deceased.
4. The record of the division of the- real estate of the decased.
And that no other evidence than the above was given on either side: upon hearing of which evidence, the order to open the account was made.
The reason assigned and relied on for reversing the said order, is,
Because there was no evidence before the court either of fraud or mistake to warrant them in opening the settlement-of the account.
The defendants answer, in the first place, that the jurisdiction of this court over the settlement of the accounts of executors, in the Orphans’ Court, extends only to final settlements and decrees ; and that this is not of that character. If there be error in the opening of the account, it is very desirable that it should be at once corrected, before new and expensive proceedings grow out of it. And it would come with a very ill grace from an executor, after taking his chance for a favorable result of a second investigation, and having his accounts resettled and again confiimed, to apply to this 'court to set aside all the proceedings, because the original account had been erroneously opened. As this court will certainly have the power to review this decree, sooner or later, it becomes it to give a liberal construction to the word final in order to avoid the expenses and other bad consequences which would result from delaying the exercise of that power to a late period. And this case appears to me to be fairly within the reasoning adopted by this court, in the case of The State v. Hanford, 6 Halsted, 71, the decree being “final as to the subject matter on which it operatesI am therefore of opinion that this objection cannot prevail.
The court, in this case, have decreed the opening of the account, because “ they were satisfied there was an apparent mistake.” The whole of the evidence laid before them is presented here, and consists of the before mentioned written .documents. Upon the face of which papers, it is contended that there is evidence of mistake in three particulars.
1st. That the executors have charged themselves with rent for one year, and no more.
2d. That there is no allowance of interest, and,
*3d. That the commissions charged and allowed are too high.
As to the first particular, the executors having charged themselves with one year’s rent of the real estate of the testator raises no presumption that they'should be charged ■with anything more. The will gives them a naked authority to sell. This confers no right to let or to occupy the lands, nor did they acquire any by virtue of their office as executors. And although it may have been more than one year before the lands were sold, they cannot be called to account, in their character of executors, for the proceeds, even if they received them; and there is no evidence that they did receive them. And there being no evidence of any title to receive, or of the actual receipt of more than one year’s rent, there is surely no proof of mistake in the circumstance that they have not charged themselves with it.
The next supposed mistake is in the fact that the executors have charged themselves with no interest. The inventory was filed on the 25th day of September, 1821, and amounted to $561.83. The disbursements, within the ensuing fifteen months, nearly exhausted, and,.in less than two years, considerably overrun it. When the land was sold does not appear. The appearance of the account by no means convinces me, that if exceptions had been made to it
The last supposed mistake is in the amount of commissions alkrwed. This was $62.22, being 6 per cent, on Sj51,037. Whether this was too much or too little we cannot tell. The sum was within the range of discretion of that court which *settled the account, and the mere fact that so much was allowed, even if, without explanation, it should appear to be too much to another court, will not authorize them in opening the account. If an individual, in settling a private account makes an allowance for services beyond their fair value, the settlement is binding notwithstanding that fact. 'Some fraud or mistake must be shewn to open a settlement between individuals; and surely the accounts of trustees settled by a competent court should be equally obligatory.
The legislature has provided that all persons concerned shall have notice of the first settlement of an executor’s accounts. After they are reported and before confirmation, they may be excepted to, and that is the proper time for the investigation of them. When settled they ought not to be opened, but for the reasons specified in the act appearing by satisfactory proof. If they were liable to be opened because a subsequent court, upon mere inspection, should be
I am therefore of opinion that the order of the Orphans’ Court should be reversed.
Order reversed.