21 How. Pr. 211 | NY | 1860
The testator died in June, 1843, at his residence in New Jersey, leaving personal estate of the value as set out in the inventory exhibited by the executor to the surrogate of the county of Bergen, of over $15,000. It consisted of cash, promissory notes, household furniture, and farm stock and produce. And there was nothing in the nature or condition of the property to give to the administration of the estate an unusual character. Independent of the personal claims of the executor, the
IsA In respect to the claim growing out of the Wilkes' mortgage. This ground of appeal proceeded upon a misconception of the decree; an examination of the decree will show that the appellant was credited therewith and allowed the sum of $1,660 as the proceeds of the Wilkes’ mortgage, with which he had charged himself in making up the debit side of the agency account. On the argument at bar, the appellant’s counsel admitted the allowance by the surrogate, but insisted that interest upon the sum should also have been allowed, and in this respect there was error. It is a
2d. As to the claim for moneys paid to the United States Fire Insurance Company. The facts on which the claim is founded, were substantially these. The testator’s wife and the mother of the executor, as heir-at-law of Stephen Price was interested in one half of No. 104 Broadway, and one half of No. 52 Courtland street, and in September^lSifi','she, Avith her husband, conveyed the same to the^pelj.apt7, From that time, neither the testator nor his wift) Md any interest in the property. The property was supjjeck^o yg
3d. JLs to the claim for services as physician to the testator. In October, 1843, four months after the death of the testator, the appellant applied to the orphan’s court in New Jersey for leave to sell the testator’s real estate to pay debts. The statutes of that state made it the executor’s duty, on such an application, to exhibit under oath a just and true account of the testator’s personal estate and debts, as far as he could discover the same. In compliance with this provision he presented a sworn account of all the debts he was then able to discover against the testator. The account included a claim of the executor for services as agent of his father, amounting to $2,500; but none whatever for medical services was mentioned or referred to. If the latter claim existed at all, it existed then, and his omission to make it at that time is conclusive that he did not then consider that he had any claim; he solemnly declared under oath in effect that no such claim existed. The omission is not consistent, as urged by counsel, with the appellant having overlooked the claim; he did not overlook his claim as agent, which was much the largest debt against his father in the account, and it is absurd to assign as a motive for his conduct, that he had not then definitely resolved to assert his claim as a physician. If he knew, or supposed, that he had any just or legal claim, he was bound to assert it when called on, under oath, to state all the debts of the testator; and if he omitted to state any debt due to him for services as a physician, it was equivalent to an admission in the most solemn way, that his father owed him nothing for any professional services he might have
The judgment of the supreme court should be affirmed, with costs.