Maxwell v. McCreery

57 N.J. Eq. 287 | N.J. Super. Ct. App. Div. | 1898

The Ordinary.

I think that Samuel Maxwell, Jr., took a vested interest in remainder in his father’s estate, subject to be divested if be should die without issue. He died leaving issue, and therefore his interest in the realty descended to his heirs-at-law, and his interest in the personalty went to his personal representatives. The executrix was not, by the will, given any control of the realty. That went to the widow of the testator for her life and thereafter will go to his children, as stated in the will.

The children of Samuel Maxwell, Jr., do not appear to be his personal representatives or to have any right to exact an account from the executrix. However that may be, it was the duty of the executrix, without compulsion, to account within one year after the grant of letters testamentary to her, or at the first regular term of the orphans court after the expiration of that year, unless the orphans court should expressly grant her further time. Orphans Court Act § 96. Not so accounting, she could have been cited to account by anyone interested in the estate at the ensuing term of the court. Orphans Court Act § 98. After two years’ delay in her accounting without the consent of the court, it became the duty of the surrogate to cite her to account. Orphans Court Act § 99. In addition to these provisions of the statute, the orphans court was empowered, at its will, to issue process to compel the executrix to account (Orphans Court § 2) or to proceed to the same end by a rule to show cause. Orphans Court Act § 157. The latter course was adopted. The statute does not limit a time within which the court must exercise its jurisdiction in this respect.

In the present case the executrix does not offer any sufficient reason why she should not account. Until she does account the balance of the estate for distribution is unascertained and she is not entitled to any allowance for either disbursements or commissions. The remaindermen have the right, while they live and the executrix lives, to know whether there are to be allowances. The fact that the executrix is to have the estate for her life does not excuse failure to ascertain what the estate amounts to through an accounting that will fix the charges against her and allowances to her, and thus settle between all parties in interest just what corpus the life tenant is to be responsible for.

Mrs. Maxwell tendered obedience to the court’s order of the 8th of January, 1898, by filing that which she styled an account, but it was an instrument expressly limited to a showing of only the money paid, laid out and expended by her in and about the administration of her husband’s estate. Such an instrument is not an executor’s account. An executor’s account, where there is an estate and allowances are expected, must show both debits and expected credits. An exhibit of the expected credits only is merely part of such an account. In the situation presented by the filing of the paper mentioned, two courses were opened to the court — -first, to accept the paper as an imperfect account and direct that exceptions to it be filed, or second, to order the executrix to complete the document which, on its face, is plainly deficient. The court chose the latter course in making the order appealed from, and, I think, rightly.

The order appealed from will be affirmed, with costs.