40 N.J. Eq. 173 | N.J. Super. Ct. App. Div. | 1885
One of the appeals in this case is from an order made by the orphans court of Essex county, April 29th, 1884, directing that the land of Aletta Personette, deceased, in the township of Caldwell, in that county, be sold to pay her debts, and the other is from an order made on that day by the same court, that the respondent John L. Johnson, one of the executors of Aletta Personette, be allowed $50 for his services as such executor, and that the respondent Louis Hood be allowed $100 for his services as counsel. Those sums were part of the amount of the debts for which it was ordered that the land be sold. Both orders were appealed from by one appeal, and both were included in the same petition of appeal and the answer thereto, and no objection was made to the joinder.' No evidence was sent up with the transcript except an affidavit of publication of the order to show cause granted on the petition for the order to sell, and it does not appear that any testimony was taken in the orphans court. Pursuant to an order of this court, testimony has been taken in reference to the subject-matter of the orders. It is not
But if the record alone be considered, without the evidence taken in this court, the order for sale must be reversed. It appears by the record that the application was made by one alone of two executors, but why it was made by one alone without the other, does not appear. Where there are several executors or administrators, it is, as a general rule, proper, if not necessary, that they all join in the application to sell land under the statute
According to the proof sent up with the record, the order to show cause was published for only five weeks instead of six, as required by the statute. It is alleged, however, by the respondents, that it was in fact published for six weeks. Leave would be given to produce proof that the order was published for the full time required by law if there were not other insuperable objections to the order to sell. It appears, by the testimony taken in this court, that the appellant was not only one of the executors, but was the devisee under the will of the land described in the petition for the order to sell. His co-executor was desirous of having the debts paid. The personal estate was appraised at only $80.40, and proved to be worth only $68.85. There were undisputed debts due from the estate to the amount of $316.76, and a claim of $67.77 in favor of Mr. E. H. Pilch, which was disputed by the appellant. In order to coerce the appellant to pay off the debts, Mr. Johnson, his co-executor, made application for the order to sell. On the 12th of February, 1882, the day on which the petition for the order for sale was filed, he wrote to the appellant on the subject, and in his letter gave him two weeks’ time in which to pay the claims against the estate. The time for appearance fixed in the order to show cause was April 15th, 1884. On the 21st of February, nine days after the order to show cause was made, the attorneys of the appellant wrote to Mr. Johnson that the appellant had paid all the demands against the estate except those which he (Johnson) had
The appellant’s counsel insists that the order to sell could not lawfully be based upon those claims or any of them. He argues that, inasmuch as the statute providing for the sale of the land of a decedent to pay his debts, is in derogation of the common law, it must be construed strictly, and inasmuch, also, as the statute, by its terms, authorizes the sale of land to pay debts, merely, the land of the decedent cannot be sold, under the statute, to pay commissions or counsel fees for or in the settlement of the estate. He also insists that the orphans court had no authority to order the sale of land to pay a disputed claim.
The statute makes a decedent’s land liable for his debts, and provides for the sale thereof, to pay so much of the debts as his
But, further, by the seventy-eighth section it is provided that after sale of the land under an order of sale to pay debts, the court is to order a distribution of the surplus “ after debts and just expenses of every sort first allowed and deducted,” among the heirs or devisees to whom the lands descended or were devised. It is suggested that the expenses mentioned in this section are expenses of sale; but the expression is of far more extensive signification. It is not expenses of sale, merely, but expenses of every sort. Since the act provides that the expenses of the administration may be taken out of the proceeds of the sale, it follows that the land may be sold to raise those expenses; that is, that that may be done directly which may be thus done indirectly. The expenses of administration are incident to the payment of the debts. The statutory provision for the sale of land to pay debts should be construed to include by implication authority to sell to pay the expenses of administration. The petition states that the land, which was a tract of twenty-one acres, was worth $1,000. It was unimproved, and about one-half meadow and the rest woodland. There appears no reason why the court should have ordered that the whole of it should be sold to raise the alleged deficiency. Part of it would have produced money enough.
As to the order granting commissions to Mr. Johnson, and a counsel fee to Mr. Hood, the amount awarded to the former, $50, exceeds the limit fixed by the statute, which provides that the commissions of executors on $1,000 or less shall not exceed seven per cent. The award was of $50 to Mr. Johnson, while the Avhole amount Avhich had come to the hands of the executors
The order for a counsel fee of $100 does not appear to have-been based upon any evidence. By the evidence taken in this court, it appears that the only services which were rendered by-Mr. Hood, for which he could lawfully be compensated out of the estate, were those rendered in obtaining the order for sale. The rest of his services were rendered to the executors in doing their work, the work for doing which their commissions are given to them. For such services, counsel fees payable out of the estate will not be allowed. Wolfes Case, 7 Stew. Eq. 223. The order granting the allowances was a separate order, not made upon a final or other accounting, and it was made without notice. The account of debts in the petition for the order for the sale of land contained no reference to allowances or the liability of the estate therefor. The order to show cause was not a notification of an intention on the part of the petitioning executor for an order fixing his commissions for his services in settling the estate, nor of an application on his part for the allowance of counsel fees to the counsel of the executors. The appellant had a right to be heard upon the making of those allowances. Not only was he the devisee of the land which Mr. Johnson proposed to sell under the order to raise the money to pay the-allowances, but he was one of the executors, and had participated in settling the estate, and therefore was entitled to a share of the-compensation for that service. The order under consideration not only made an excessive allowance for commissions, but awarded it, not to both executors,' but to Mr. Johnson alone. The order for commissions and counsel fee was not only irregu