39 N.J. Eq. 501 | N.J. Super. Ct. App. Div. | 1885
The appeal in this case is from a decree of the orphans court of Monmouth county, upon the final account of James W-Wight, acting executor of his father, Richard "Wight, deceased.. By the will of the latter, his estate, after the payment of his debts- and funeral expenses, was given to his children, Catharine,. James, Ann, Mary, Jacob and Mai’garetta, in equal shares, with substitution of their children in their stead in case they should predecease him, and with limitation over to the testator’s surviving children of the share of any of his children who should die, leaying no children, at any time before the provisions of the-will should have been carried out. Power was given to the-executor to convert the personal estate into cash, and apply it to-the payment of the testator’s debts and funeral expenses. Also-to sell and convey the real property, and apply so much of the-proceeds as might be necessary for the purpose, to pay any part
This settlement Avas carried out, and thereupon the three, Mary, Margaretta and James, became entitled to the whole estate. To raise the money to pay the amount agreed upon, it Avas necessary to mortgage or sell part of the real estate. A house and lot in "West Thirteenth street, in New York, already mortgaged by the testator for $3,000, was accordingly conveyed by James, as executor, to Mary and Margaretta, and they thereupon conveyed to him individually one-third thereof) and the three then mortgaged the property for $5,000, out of which the $3,000 mortgage and interest, and all other encumbrances on the property, and the expenses of the loan, were paid, and the balance., applied to the payment of the money which it had been agreed should be paid in compromise.
Margaretta Avas attorney in fact for her father for about eight years before his death. As such, or as agent for him, she advanced money to her sister Mary, the appellant, and took her promissory notes therefor. They and a book account against Mary in favor of the testator amounted, Avith interest, to from $2,500 to $3,000 at the time of his death. It appears that in the spring of 1880 (the testator died in 1876) it was agreed
Margaretta had, before the testator’s death, borrowed money of James to be used in her father’s business, and had given him notes signed with her father’s name by her as his attorney in fact, and James had also an account of about $1,700 against his father for board &c.
The appellant objects to various items of disbursement in the executor’s account, on the ground that the bills or claims for which the payments were made were not sworn to, and that the items of the demands therein are not given. The estate was not insolvent. The executor had a right to pay any claim against it which he knew or became satisfied was just, and he was under no obligation to require either a statement of the items or that the claim be sworn to.
There are objections to the allowance of money paid for penalties upon taxes on the real estate; and it is also urged that some items of payment are twice charged in the account, whereas they should have been charged but once only. I do not find any ground for reversing the decision of the orphans court in reference to those matters.
And so, too, of the charges and credits made in reference to the litigation in New York and the settlement thereof, and the objection that the executor ought to be charged with money in respect of rents of the real estate not collected by him.
The agreement that Margaretta should have $1,000 for her services as attorney in fact of her father, was made by all the parties interested in the estate. The appellant, in consideration
As to the respondent’s demand against the estate, as before stated, it was upon notes and book account. The former were signed with the testator’s name by Margaretta as his attorney in fact. It is argued that she had no authority under her power of attorney to sign notes for her father, because by its terms that instrument gave her authority only to do and perform all such acts as the grantor of the power himself might do in and about the care of his real and personal estate, and renting and collecting the rents of the former, and also to manage and control his general business. She acted as his agent in all the matters mentioned in the power, and, in the transaction of the business, found it necessary to borrow money for him for the purposes thereof, money which she so borrowed was in fact applied to those eposes. She must be regarded as his agent in borrowing the money. In this proceeding in reference to the. executor’s account, the borrowing of the money has been proved by the agent herself. So that that part of the respondent’s debt which is represented by the notes is established without them, and they are at least evidence of the borrowing of the money. Most of the rest of the respondent’s demand consists of charges for board of the testator and Margaretta at his house for about five years just before the testator’s death. ' Margaretta. was, as before stated, her father’s attendant. That part, as well as the rest of the claim, is satisfactorily established. The executor and Margaretta, as agent for her father, had a settlement at the close of December, 1877, of the accounts for board &c., up to the 1st of January, 1875, and she then gave him a note for the balance due him, signing it with her father’s name, by her as attorney in fact.
But it is urged that the orphans court had no jurisdiction to try the question of the respondent’s elaim against the estate, be^
The decree of the orphans court will be affirmed in all respects. No costs of the appeal will be awarded to either side.