73 N.J. Eq. 99 | New York Court of Chancery | 1907
On going over and considering the entire record in this suit, including the accounts and exceptions, my present view is that no account can be equitably taken between the parties without taking in the entire accounts of Frank Marsh, as trustee, previous to May 1st, 1904. This will include his accounts for the income of the other real or personal estate, as well as the rents of the real estate in New Jersey, which has been partitioned and sold in this suit. In the matter of the accounting, the case is one of some complication, and the status on the whole record is as follows:
The testator, Theodore W. Marsh, domiciled in New York, died seized of lands in New Jersey as well as in New York, and also possessed of a large personal estate. His two sons, Yalentine Marsh, a resident of New York, and Frank Marsh, a resident of New Jersey, were appointed executors and trustees of his will. The will was proved and letters testamentary taken out by both executors in New York. The testator devised his residuary estate, real and personal, and wherever situate, “to his executors, the survivor and successor of them, in trust, for the uses and purposes declared in the will,” and by the fifth section of his will (the portion material for present purposes) the testator directed his executors to divide the residue of his estate, real and personal, after deducting certain sums set apart for testator’s sister and daughters (which has been done)
“into two portions or shares equal in all respects as to value, and that the net annual income of one of said shares should be paid in semiannual payments to each of my sons, Valentine Marsh and Prank Marsh, during his natural life, and upon the event of the death of either of my said sons leaving- lawful issue him surviving, I direct that the portion previously held in trust for the benefit of such deceased son shall be divided equally among his issue, share and share alike * *
On or after the settlement in Netv York of their accounts as e-xecutors, the two executors actually, divided a considerable portion of the personal estate amounting to nearly $120,000 and
On or-about May 17th, 1904, and-'after filing the bills for partition,'the'complainant, surviving trustee, filed-in the surrogate’s court of -Westchester county, his accounts as trustee for. the Valentine Marsh trust, from October 1st, 1903, to May 1st; 1904, and included the income from real estate as well as personal property in-a general-account, and prayed-allowance, generally, for the payments of-$3,800- and also for certain-other payments and expenses claimed to be chargeable, -generally, against the income. ' Whether this was a- voluntary accounting or was made on proceedings requiring him to account, does not clearly appear from the records before-me. ■ On May 17th-a copy of this account was served-oh-Minnie Marsh, or her attorney-in the proceedings, and she subsequently filed exceptions to the account, thus becoming a party'to the proceedings. These proceedings for account in the place of domicile and probate are' still pending. ■ In June, 1904, Minnie' Marsh, as defendant in the. partition- suits, which had been consolidated on her- application on May '39th, 1904, filed a cross-bill'for-partition -of the lands and a general account by'the complainant of personal estate as well as -of the rents of the lands sought to be partitioned. An application for the appointment of a receiver was subsequently made and denied,-but the complainant was directed to file in this court accounts of the rents of the.New Jersey real estate.- These accounts, up to-January 37th, 1-905, have been filed; and up to May 1st, 1-904, are the sainé as the accounts filed in- the surrogate’s court of Westchester county,- except that the items from rents of real estate and from-other sources have been--separated in the present accounts. The -gross amount received, according ■ to-• the -accounts, is $9,531.69,-of 'which $5,839.14 is from rents-of real estate-and $3,693.55-from other sources. The-gross payments, for which allowance is-claimed, is $8,654.30, and of this total amount, the
William S. Marsh, for services as clerk and bookkeeper .............................. $415.00
Rent and office expenses............ 257.59
Commissions to agents...................... 284.17
Repairs to real estate....................... 1,179.47
Counsel fees.............................■... 250.00
Office furniture............................. 89.80
Total ........................... $2,476.03
Except the repairs to the real estate and the commissions to agents, the charges, if proper,-are-general charges against the whole income, personal as well as real,’ and the ■ payments or allowances therefor cannot, I-think, on the mere option-of either party, be appropriated to one class of income rather than another. Neither can-the general payments of'$2,800 to the beneficiary on account of the income be now so appropriated exclusively to one source of-income rather than to another. Nor can this payment of income be apportioned between the real and personal property on the basis of the gross incoine of either class, because this payment must be taken to have been made and received on account of net income only. -
From the time of Valentine-Marsh’s death, up to December, 1903, the management of the- trust real estate and undivided personal property, as an undivided property which had been going on since testator’s death, was continued by the-consent of the parties interested, and if the case is to be controlled by New Jersey law, the surviving trustee was in no 'default for not making -or attempting to make, of his own motion and without any request from Minnie Marsh, an immediate partition of the New