33 N.J. Eq. 524 | N.J. Super. Ct. App. Div. | 1881
The objections brought before the court for examination and adjudication, will all be disposed of by a decision of the foliow-
The will gave all the residue of the estate to be divided equally between the testator’s sister Jane and his brother Dowe, “ the money to be put on bond and mortgage, and the interest to be paid to them yearly, for their support; ’’ with the further provision that, “if the interest should prove insufficient for the purpose, then so much of the principal as might be necessary for the purpose, should be applied thereto.” These two persons, the legatees, were both poor. One of them appears to have been very sick and imbecile in mind. The testator intended to devote to their support, for life, the entire residuum of his estate, if necessary for the purpose. He first provided that they should have the residue in equal shares; this is followed
To consider the investments made by the executor. One, of $5,000, was on mortgage of the Voorhees property, a farm of seventy-nine acres, in Hillsborough township, in Somerset county, and
It appears that Abraham Voorhees paid for the Voorhees property $8,482, about $108 an acre. The time when he purchased it does not appear, but it seems to have been about the time of the giving of the mortgage. If its value was then $8,428, the amount lent upon it, $5,000, was less than two-thirds of the value. The interest was paid regularly for ten years, up to 1876. In that year $200 were paid for interest; the next year $50, and the next $350, and the payment of interest having ceased, the executor, in 1879, began to foreclose. I do not think that he is answerable for the loss to the estate on that loan. The mortgage was taken in 1865. Between that time and 1873 the
The Wallace property was of a different character. It was a valuable village property. It is said to have been the best stand for business on that side of the river. Rynear S. Merrell testifies that when the executor obtained his mortgage on it, he (Mer-rell) thought it a good security for that loan, and he also says it had been sold for over $4,000. The executor testifies that when he made the loan he knew the property had been sold for $4,300
Again, the executor did not discharge his duty to the estate in regard to the claim which the personal responsibility of Wallace on the bond enabled him to make on the property of Wallace not covered by the mortgage. He says he did not put in his claim against Wallace’s estate in the hands of the assignees, because he held a mortgage. If the mortgaged premises were worth the amount of the mortgage at that time, he should have got the money for his mortgage. Mr. Smock, one of the assign
While this conclusion renders it unnecessary to pass on the .question raised as to whether the executor, if that property was the property of the estate when he sold it, was not bound to advertise it according to the directions of the act “ relative to sales of land under a public statute or by virtue of any judicial proceedings” (Her. 101¡.0), it may be remarked that the sale was not within the provisions of that act.
The executor has not, I am satisfied, been guilty of any intentional wrong or misconduct in the discharge of the duties of his
The decree of the orphans court will be reversed in the respects above indicated, but without costs..