text:
    Christina Schultze v. John Henry Schultze.
    [Submitted January 22d, 1908.
    Decided January 29th, 1908.]
    1. In a suit brought by a wife against her divorced husband, for the recovery by her from him, both real and personal property which she alleges she had transferred, or caused to be transferred, to him during the coverture, and which she seeks to set aside on the ground that they were obtained from her by him by means of duress or undue influence, consisting of threats and of actual bodily violence and of personal abuse, evidence examined and held to show that she was coerced by assaults and abuse to make the donation to him in question, and that she was entitled to relief in respect thereof.
    2. The gift from the wife to the husband must be the free act of the wife; it must be without coercion or fraud. Anything beyond mere persuasive argument will not be permitted. It must proceed from an unfettered will, and an uncontrolled desire to benefit the donee.
    On final hearing on pleadings and proofs.

      Mr. William 8. Simhr, for the complainant.

      Mr. John J. Fallon, for the defendant.
   Howell, Y. C.

The parties to this controversy áre husband and wife. Their marriage took place in September,' 1898, at which time the wife was' forty-four years' old and the husband twenty-seven. They were divorced' from bed and board for extréme cruelty on the part of the husband by this court'in á suit begun' on'July 5th, 1906, and in which the final deerée was entered on March' 25th, 1907.

This suit was begun in June, 1907, less than three months after the divorce decree. It has for its object the recovery"by the wife from the husband of both real and personal property which she alleges she had transferred, or' caused to be transferred, t'o him during the coverture. ’ The property consists of (1) $500 in cash; (2) a joint interest in a mortgage for $500 made by Eva Pohlmann to the husband and wife jointly on March 9th, 1905, on property on Seventh street in Hoboken; (3) a joint interest in a mortgage on which there is now $1,500 owing, made by Andrew J. Peters and wife to the complainant and defendant jointly, on March 2d, 1903; and (4) an undivided half interest in real estate situate at Bloomfield and Fifth streets, Hoboken, conveyed to the complainant and defendant jointly by Catherine H. Teel and others on January 4th, 1905. All the property and money from which the above-mentioned interests were derived belonged originally to the wife. When she was married to the defendant he was working at his trade of barber for a small weekly wage, and owned property from which he subsequently realized the sum of $450. The complainant at that time was the widow of one Foster, and she owned considerable real and personal property. Soon after the marriage the defendant besought the complainant to transfer to him a half interest in her estate. This she at first refused to do. She says that he then began to enforce his demands by threats of violence, which threats he carried out by the commission of actual and violent assaults on her, connected with such personal abuse as calling her vile names, and these, she says, terrified her into a compliance with his demands.

The first transaction from which the defendant derived any benefit was referred to in the testimony as the Peters transaction. Mrs. Schultze had, under her husband’s will, a legacy of $5,000, which, at the hearing, was said to have been charged by his will upon property upon Seventh street, Hoboken. Some proceeding was had in the Hudson orphans court by virtue of which a public sale of this property was had; at the sale it was purchased by Mrs. Schultze and was conveyed to her by an administrator’s deed in 1901. She sold the property to Mr. Peters in 1903 and took back from him a mortgage for $2,500, on which there is now $1,500 owing, the mortgage being made to herself and the defendant.

The next transaction referred to in the evidence was the conveyance of property on Seventh street, Hoboken, to Eva Breuder. The defendant refused to join in the execution of this deed unless his wife, the complainant, would give him some portion of the consideration money. It ended by her giving him $500 in cash, upon receipt of which he joined her in transferring the property to Mrs. Breuder, Mrs. Schultze talcing back a mortgage to herself and her husband for the sum of $3,000. This was subsequently reduced to $500, was canceled of record and a new mortgage made in 1905 by Eva Pohlmann, formerly Eva Breuder, and this was made to the complainant and the defendant.

The last transaction consisted of the purchase of property at the corner of Bloomfield and Fifth streets, Hoboken, the title to which was taken in the name of the complainant and the defendant.

The result of these transactions is that the complainant gave to the defendant $500 in cash, an undivided interest in a mortgage for $500, an undivided interest in a mortgage for $1,500, and an undivided interest in the real estate at the corner of Bloomfield and Fifth streets, Hoboken. And it is these transactions which the complainant seeks to set aside on the ground that they were obtained from her by her husband by means of duress or undue influence, consisting of threats and of actual bodily violence and of personal abuse.

It is undoubtedly true that a married woman may make a gift to her husband of the whole or any part of her real or personal estate; she may make a settlement upon her husband which is wholly voluntary, and it may be made in such a way as to be absolutely unimpeachable. Vice-Chancellor Emery states the law in Curtis v. Crossley, 59 N. J. Eq. (14 Dick.) 358-305, as follows: “The wife is protected against settlements made upon the husband through fear or improper influence on his part, and if she is able to establish this the settlement will be declared void; and, while a court of equity will scrutinize the transaction with jealousy in order to ascertain whether the settlement was made through fear of the husband, or whether the husband exercised improper influence over the wife, the burden is on the wife to show improper influence of the husband in order to avoid her settlement on him,” citing cases. See, also, Hall v. Otterson, 52 N. J. Eq. (7 Dick.) 522; affirmed, 53 N. J. Eq. (8 Dick.) 695; Black v. Black, 30 N. J. Eq. (3 Stew.) 215; Slack v. Rees, 66 N. J. Eq. (21 Dick.) 447 (involving the relations between father and daughter), and Albert v. Haeberly, 68 N. J. Eq. (2 Robb.) 664 (involving relations between a young-woman and her step-mother).

If, therefore, the complainant has shown that the gifts made by her to her husband were the product of undue influence or threats of injury or actual violence, they must be held to have been obtained unfairly. If she makes a prima fade case on these grounds, then, by all the rules of procedure, the burden of countervailing it is thrown on the defendant, and if he does not meet the burden thus cast upon him the decree must go in favor of the complainant. The gift must be the.free act of the wife; it must be without coercion or fraud. Anything beyond mere persuasive argument will not be permitted. It must proceed from an unfettered will, and an uncontrolled desire to benefit the donee.

The allegations of cruelty made by the wife are denied by the husband, both by his answer and by his evidence. I have examined the testimony with care since the hearing and have come to the conclusion that the wife was coerced by assaults and abuse to make the donation to the husband which she now seeks to recover back. The impression left upon my mind from reading the whole of the testimony of the wife is not removed in any degree by a careful perusal and studjr of the testimony of the defendant. His story is evasive, uncertain, and wholly unsatisfactory.

The husband’s denial of cruelty, upon which his whole defence rests, is seriously shaken, if not entirely obliterated, by the decree above referred to, which divorced him and his wife from bed and board. This decree remains unappealed from and in full force; and must be taken to establish the fact of cruel treatment. It was insisted at the hearing that the transfers must stand, because the wife had had the benefit of independent legal advice. This she denies, her statement being that while M-r. Stuhr had acted as her counsel in many transactions, she did not consult him about these transfers to her husband because she was ashamed to let him know of the situation in. which she had entangled herself.

It will be noted that in the various papers and transactions out of which this case arose there is no reservation by the wife of a power to revoke her so-called voluntary gift. It has been held in many cases that the absence of power of revocation from a voluntary settlement is evidence of mistake, and that sometimes that of itself would be sufficient to destroy the gift. Garnsey v. Mundy, N. J. Eq. (9 C. E. Gr.) 243; Martling v. Martling, 47 N. J. Eq. (2 Dick.) 122; White v. White, 60 N. J. Eq. (15 Dick.) 155. Whether that rule applies to this case it is not necessary to determine, for the reason that sufficient evidence of unfair dealing on the part of the husband exists upon which a decree in favor of the wife can stand.

I will advise a decree in favor of the complainant.


source: Caselaw Access Project

author: Walker, Y. C.

license: Public Domain

text:
    Alexander Campbell v. Horace G. Hough and Edith Hough, administratrix of the estate of John Stockton Hough, deceased.
    [Decided January 17th, 1908.]
    1. The cross-examination of one whose affidavit is annexed to or accompanies the bill, or is presented on the part of the defendant in a cause in which an injunction is prayed, taken under rule 124® of this court, must be filed; and it is available to the adverse party,' even if the party procuring and conducting the cross-examination sees fit not to use it.
    2. An agent who enters into an agreement in writing with a third person for the sale of lands belonging to his principals, if he acknowledges the instrument at all, can make a valid acknowledgment only by acknowledging that he signed, sealed and delivered the same in the name of, and as the voluntary act and deed of, those principals, and an acknowledgment to such an instrument, by an agent as his own voluntary act and deed is a nullity; but, as no acknowledgment is required to be made of the execution of an agreement for the sale of lands, a defective acknowledgment annexed to such an instrument does not affect the validity of the contract.

      3. The statute of frauds is satisfied with the signature of an agent to an agreement to convey lands, provided the agent has express authority to bind his principals by writing, and this authority may be by parol, but must be such as to permit the making of the identical contract sued on, and not a contract differing from the one actually authorized.
    4. Proof of par.ol authority in an agent to sign an agreement in writing for the sale of lands must be clear and decisive, and this, not only as to proof of such authority generally, but, also, that the agent had authority to make all of the terms for his principals which he incorporated into the instrument.
    5. If an agent authorized by parol to enter into a written agreement for the sale of lands belonging to his principals, attempts, by such an agreement, to bind them to terms which they did not authorize him to make, the agreement is void and unenforceable.
    6. Where an administratrix obtained an order from the orphans court to sell the lands of her decedent for the payment of debts, the administratrix’s contract to sell the lands may be specifically enforced in this court, provided the proceedings for sale were regular and the sale has been confirmed by the orphans court, and the heirs-at-law of the decedent are neither necessary nor proper parties to such suit for specific performance.
    7. This court will not decree the specific performance of an agreement to sell lands made by an administratrix who has a power of sale under an order of the orphans court, if the sale has not been confirmed by the court ordering it to be made, as a decree for specific performance in such case would be inefficient and unenforceable.
    8. The Orphans Court act provides what estate shall vest in the purchaser of lands at a sale made by the representative of a decedent’s estate for the payment of debts; the power of such representative is a naked one and must be strictly pursued, and such representative has no power to bind the estate of the decedent by covenants for title.
    9. An agreement by tenants in common to convey their undivided interests in an estate may be enforced as to either, and neither has the right to refuse performance of the contract to convey because the other is under some disability.
    10. In order to obtain specific performance against one tenant in common, under an agreement to convey lands which is void as to a co-tenant, the complainant must pray specially for that relief, and if he does not do so in the first instance he may apply to amend, which application, in a proper case, will be granted.
    11. Where a preliminary injunction is sought in aid of a suit for specific performance of an agreement to convey lands, the writ will be refused if the agreement relied upon is one made by an agent who clearly lacked authority to bind his principals, or if, for other substantive reasons, the agreement is palpably unenforceable.
    On motion for a preliminary injunction. Heard on bill and affidavits and answer and affidavits, and order to show cause.

      Mr. Gardner E. Gain and Mr. John T. Bird, for the motion.

      Messrs. James and Malcolm G. Buchanan, contra.

   Walker, Y. C.

The bill in this cause was filed for the specific performance of an agreement for the sale of lands entered into by Willis P. Bainbridge, Esq., as agent and attorney in fact for the defendants, Horace G. Hough and Edith Hough, administratrix, with Alexander Campbell, the complainant. The agreement is in writing under date of October 5th, 1907, and recites that the sale is to be made in consideration of $6,000; part thereof, $600, being paid to Mr. Bainbridge upon its execution; $2,200 to be paid December 5th, 1907; and the balance, $3,200 to be satisfied by the assumption bjt Mr. Campbell of the mortgage on the premises for that amount; the deed to be one of general warranty, and the Houghs to pay all taxes due in December. This agreement contains an acknowledgment. The certificate reads that Mr. Bainbridge acknowledged that he signed, sealed and delivered the instrument as his voluntary act and deed. Incidentally, the bill prays an injunction against the defendants from selling to James M. Donald the lands mentioned in the agreement, who, the bill alleges, had entered into a contract with the defendant, directly, for the purchase of the same premises. Both Mr. Hough and Mrs. Hough deny that they authorized Mr. Bainbridge to bind them by writing at all, and Mr. Bainbridge only says that he told Mr. Hough that he would sign the agreement, and that he, Mr. Hough, said “all right.” Mr. Bainbridge does not say that Mrs. Hough authorized him to sign any agreement, only that she authorized him to sell. The sale, as before remarked, was to be for $6,000, and while the question of who was to pay commissions, the buyers or the sellers, is disputed, there is no dispute about this, namely, that Mr. Bainbridge had no authority to bind the Houghs to pay the taxes due in 1907, nor to make a deed of general warranty free from all encumbrances except the mortgage, which was to be assumed as part of the consideration.

Neither in the bill of complaint nor in the affidavit of Mr. Bainbridge annexed - to it, is it averred that express authority was given Mr. Bainbridge to bind the defendants by writing to convey their lands. The bill alleges that the defendants, by their agent, entered into an agreement in writing, setting it out, and Mr. Bainbridge, the agent, in his affidavit, states that he was requested and authorized by the defendants to make sale of the lands mentioned and described in the bill. His assertion that he informed Mr. Hough that he would sign an agreement for him is to be found in his cross-examination, taken under rule 124a of this court.

A question concerning the use of this cross-examination was presented on the hearing of the order to show cause, and arose in this wise: Counsel for the defendants stated that there was no averment in the bill or affidavit that Mr. Bainbridge was authorized to enter into an agreement in writing to bind them. Counsel for the complainant asserted that Mr. Bainbridge, in his cross-examination, stated that he thought Mr. Hough said that when he was ready to have an agreement signed to let him, Mr. Hough, know, and he would sign the agreement, and that Mr. Bainbridge told him that he, Mr. Bainbridge, would sign the agreement, to which Mr. Hough said "all right.” Counsel for the defendants objected to the use of this cross-examination by the complainant, saying that it would not be offered or used on behalf of the defendants who procured it to be taken. The rule referred to provides that the chancellor or vice-chancellor before whom an order to show cause why an .injunction should not be granted, or a motion to dissolve an injunction already granted, comes on to be heard, may order that an affiant, whose affidavit is annexed to or accompanies the bill, or is presented on the part of the defendant, shall appear and submit to cross-examination in respect to the matter contained in. his affidavit, under such direction as to notice and time and officer examining, before whom such cross-examination shall be taken as may be prescribed in. the order. Pending,the hearing pn.the order to show cause counsel for the defendants applied to me for an order that Mr. Bainbridge submit to such cross-examination, and I advised an order for that purpose. The examination, taken under that order, in my judgment, is,evidence for either party who chooses to offer it. A party to a suit can always go into the papers of his adversary and use them, or such parts of them as he is advised will help his cause. It is true that the Practice act (P. L. 1903 p. 575 § 140) provides that if an action is at issue in a common law court either party may serve on the adverse party written interrogatories on any matter material to the issue and require written answers to the same under oath, and that the answers shall be evidence in the action if offered by the party proposing the interrogatories, but not otherwise. Section 144 of the Practice act (P. L. 1903 p. 577) provides that any party to an action may by order of the court or a judge be examined as a witness at the instance of the adverse party, or of anyone of the several adverse parties after issue joined and before trial; and (P. L. 1903 p. 577 § 146) provides that the examination and cross-examination shall be reduced to writing and signed by the party so examined, and filed, and may be used by either party at the trial. I apprehend that without the direction that the examination may be used by either party, that that right would exist, and, likewise, I am of opinion that interrogatories answered under oath by a party to a common law suit would be evidence on the trial for the party answering the interrogatories, if the party propounding them did not offer them, save for the fact that the statute, in that case, expressly provides that the answers shall be evidence only if offered by the party proposing the interrogatories, but not otherwise. Now, this cross-examination of Mr. Bainbridge was taken by virtue of an order of this court for that purpose had and obtained, and was, in my judgment, equally available to either party, and if the party procuring and conducting the cross-examination saw fit not to use it, that party had not the right to withhold it from the files, which would be to suppress it, and if filed as testimony taken in the proceeding, it was, of course, available to the adverse party. I make these observations because the objection to the use of the cross-examination was solemnly made on behalf of the party making it,'and as the rule has not been construed in this regard, so far as I can find, I think it proper that a declaraiion should be made upon the subject.

On the filing of (he bill an order was made requiring the defendants to show cause why they should not be enjoined according to its prayer, with an ad interim stay, and the complainant now moves to make the order to show cause absolute.

Counsel for the defendants contend that the acknowledgment to the agreement for sale was defective in that the agent who signed the instrument acknowledged that he signed, sealed and delivered it as his voluntary act and deed, instead of doing so in the name of, and as the voluntary act and deed of, his principals. This objection is valid, but as the agreement did not need an acknowledgment to give it efficacy, the objection is ineffective.

The first question presented for solution is, was Mr. Bainbridge authorized by the defendants to make the agreement in waiting which he signed on their behalf,'so as to charge them with the obligation of making the conveyance.

It is settled law in this state that the statute of frauds is satisfied with the signature of an agent, to an agreement to convey lands, provided the agent has express authority to bind the principal by waiting, and this authority may be by parol. Milne v. Kleb, 44 N. J. Eq. (17 Stew.) 378; Lindley v. Keim, 54 N. J. Eq. (9 Dick.) 418. The authority, however, must be such as to permit the making of the identical contract sued on, and not a contract differing from the one actually authorized. Morris v. Ruddy, 20 N. J. Eq. (5 C. E. Gr.) 236.

In the case of Lindley v. Kevm, ubi supra, referred to on the oral argument as the O’Reilly Case, the court of errors and appeals said (Lindley v. Keim, 54 N. J. Eq. (9 Dick.) ’422, that courts should require the proof of authority in an agent to sign a memorandum in waiting for the sale of lands by parol to be clear and decisive. This, of course, means not only that proof of the authority generally must be clearly and decisively shown, but, also, that the agent had authority to make all of the terms for his principal which he incorporates into the agreement.

Speaking now to the facts with reference to the question of authorization of Mr. Bainbridge to bind the defendants by memorandum in waiting for the sale of their lands, it may be remarked that Mr. Hough denies that he gave authority to the agent to sign a waitten agreement in his behalf; so, also, does Mrs. Hough, and, as before stated, Mr. Bainbridge only testified that when he informed Mr. Hough that he would sign for him, he, Mr. Hough, said “all right.” Therefore, I am compelled to find that Mrs. Hough never authorized Mr. Bainbridge to bind her by written agreement, and am constrained to hold that the complainant does not preponderate in the proof required to show that such authority was confided by Mr. Hough to Mr. Bainbridge.

Another thing: Both Mr. Hough and Mrs. Hough testify that they were only willing to'sell the farm for $6,000 net to themselves, and would not pay commissions out of that sum. Mr. Bainbridge testifies that they were to pay commissions. The agreement which Mr. Bainbridge assumed to make on behalf of the defendants is silent on the subject of commissions, and thereby the purchaser was not bound to pay them, but the defendants who employed the agent were left to pay the commissions. Morris v. Ruddy, 20 N. J. Eq. (5 C. E. Gr.) 236, 238. This was a departure from the terms of the authorized sale, and while the question of fact in this regard is disputed, I must, under the rules of law, find in favor of the defendants, because the complainant’s evidence on this question, does not preponderate.

It follows, therefore, that the agent was not clothed with authority to bind the defendants in writing for the sale of their lands, and, whether so or not, that the written, agreement departed from the terms of sale confided to the agent. If such contract made by an agent varies from his instructions, the principals will not be bound by it. Morris v. Ruddy, ubi supra.

This finding is alone dispositive of the case, but there were •other questions raised upon the argument, all of which were important, and I will therefore proceed to decide them.

The premises in question were owned by the defendant Horace G-. Hough and his brother, the late Dr. John Stockton Hough, as tenants in common. Dr. Hough died intestate May •6th, 1900, leaving the defendant Edith Hough, widow, and Arthur S. Hough, Edward R. Hough, Henry S. Hough, Douglass R. Hough, John S. Hough and Robert H. Hough, his children, and only heirs-at-law. Mrs. Hough, the widow, was granted administration of the estate of her deceased husband, and petitioned the orphans court of the county of Mercer for the sale of the lands of the deceased for the payment of his debts, his personal estate being insufficient for the purpose. An order for such sale was made by the orphans court on December 3d, 1901, and her power to sell at all reposes in that order. On the argument of the order to show cause counsel for the defendants urged as a ground of objection against the complainant’s right to have specific performance that the contract sued on is unenforceable as to Mrs. Edith Hough, administratrix, -because Mrs. Hough has no title to the premises in question, and that the undivided half of which she has a power of sale descended to her six children upon the death of her husband, subject to her dower, which six children are not parties to this suit. To this I cannot assent. She, as representative of the estate, obtained an order to sell from the orphans court, and that order empowered her to sell whatever interest the infants had in the land. There is no question here about the widow’s dower. The papers show that she consented to the sale free from her estate in dower, under the act relative to sales of lands under public statutes. Gen. Stat. p. 2987 § ¡30.

If the agreement in this case, and all of its terms, had been one which the agent was authorized to make in writing, then I think it would be enforceable by the decree of this court, provided the proceedings for sale were regular and if the sale were confirmed by the orphans court. In such event this court could undoubtedly order the contract specifically performed. Wortman v. Skinner, 12 N. J. Eq. (1 Beas.) 358, 381, 384; Young's Admr. v. Rathbone, 16 N. J. Eq. (1 C. E. Gr.) 224.

Proceedings in the orphans court for the sale of lands for the payment of debts are proceedings in rem, and the heirs-at-law are not ¡Darties, at least they are not parties eo nomine, and jurisdiction over them is obtained pro hac vice by publication, without personal service. Lawson v. Acton, 57 N. J. Eq. (12 Dick.) 107, 114. This being so, the children of Dr. Hough are not, in my judgment, either necessary or proper parties to a bill for the specific performance of an agreement for sale by the representative of his estate having power of sale under an order of the orphans court. In other words, as Mrs. Hough, under the order of the orphans court, can sell the undivided interest in the lands of which Dr. Hough died seized, then, upon a proper case made in this court, she could be decreed to carry out that sale. As, however, the sale has not been confirmed by the orphans court, this court is powerless to compel the specific performance of the agreement to sell by Mrs. Hough representing the estate of the decedent because of that fact, namely, the lack of confirmation of the sale by the court ordering it to be made. The agreement is silent upon this subject of confirmation, but the bill of complaint alleges that the conveyance is to be made in case the orphans court should approve of the sale. Now, in the presence of an unconfirmed sale by the orphans court, how can this court decree the specific performance of a contract for sale made by a vendor whose title, or rather right to- sell, depends upon such confirmation? A court of equity will not decree the specific performance of a contract unless it can make an efficient decree, and one that it is able to enforce. Pom. Eq. Jur. (iSd ed.) § 1J/Ü5.

It is urged that the orphans court may confirm the sale before final hearing in this cause, but I doubt it, as the sale to Mr. Donald, disclosed by the answer and affidavits of the defendants, is for about $600 more than that called for in the agreement under consideration; and a sale by Mrs. Hough, as administratrix, does not fall within that class of cases of which Morrisse v. Inglis, 46 N. J. Eq. (1 Dick.) 306, is an example, and in which the court of errors and appeals held that judicial sales made without irregularity or fraud and not affected by accident or mistake will not be set aside for mere inadequacy o-f price; but such sale is affected by section 85 of the Orphans Court act (P. L. 1898 p. 745), which commits the question of confirmation or rejection without limitation to judicial discretion, as construed by Ryan v. Wilson, 64 N. J. Eq. (19 Dick.) 797. While this question is one which concerns the final disposition of the cause, it is noticed now, because, unless a preliminary injunction shall go, the complainant may be, and probably will be, deprived of an opportunity to have a specific performance of this agreement, even if entitled to it, for the reason that the defendants will undoubtedly sell to Mr. Donald in the meantime, and procure the confirmation of that sale by the court in which it was ordered. The want of power in this court to order a specific performance of the contract under consideration, because the sale negotiated by the agent is unconfirmed, being so plainly against the complainant, I must, upon this ground, deny him preliminary relief.

Tt was also urged on behalf of the defendants that Mrs. Hough could not malee a deed of general warranty free from encumbrances, except, of course, the encumbrance specifically excepted. This is a valid objection. The Orphans Court act (P. L. 1WS p. 749 § 94) provides what estate shall vest in the purchaser, namely, all of the estate of which the testator or intestate was seized at the time of his death if the order to show cause be obtained within one year thereafter, and if not obtained within that time, then all the estate of which the heirs or devisees of the testator were seized at the time of the making of such order. That is not all. The power of an administrator to sell lands under an order of the orphans court is a naked power and must be strictly pursued. Den v. Lambert, 13 N. J. Law (1 Gr.) 182. In Lindley v. Keim, ubi supra, the court of errors and appeals said (9 Diclc. 488) that the donees of the power of sale under O’Reilly’s will could not bind his estate to make a good title.

Another ground urged by the defendants is that the contract is joint, and that neither of the defendants contemplated selling an undivided half to the complainant disassociated from the sale of the other half to him at the same time, the contention being that if the agreement were valid as to one defendant and not as to the other, there could be no decree for the performance by the one on whom the agreement was binding, because that would thrust upon the one not selling a co-tenant unselected and possibly objectionable. But this, in my judgment, is inadmissible, because no tenant in common has the right to say who his co-tenant shall be, for any co-tenant being sui juris can alienate his undivided interest without any restraint from the other. The complainant could avail himself of the inability of either of the defendants to convey, and refuse to accept an undivided interest, when he had bargained for the whole, but neither of the defendants could object to convey a moiety for the reason given. Either co-tenant may charge his separate interest, or may convey or mortgage it, or become personally liable upon an undertaking respecting it. 17 Am. •& Eng. Encycl. L. (8d ed.) 073. One of several joint tenants or tenants in common may convey his undivided interest in the common property either to a co-tenant or to a stranger, and the conveyance may be of his undivided interest, either in the whole property or in a distinct or separate parcel thereof. 17 Am. & Eng. Encycl. L. (®A ed.) 6S1.

A direct authority for decreeing specific performance against one tenant in common, under an agreement to convey lands which is void as to a co-tenant, is to be found in Keator v. Brown, 57 N. J. Eq. (12 Dick.) 600; also in Milmoe v. Murphy, 65 N. J. Eq. (20 Dick.) 767. In order to obtain such relief, however, the complainant must pray for it specially, and, if he does not do so in the first instance, he may apply to amend. Keator v. Brown, ubi supra, 602. It seems that there can be no decree for the conveyance of a part only of the premises in question in a given suit under the prayer for general relief, but that the complainant, if he desires such relief, must, in his pleadings, or at least on final hearing, consent to accept part performance. Milmoe v. Murphy, ubi supra. In a proper case an amendment would be allowed. In the cause under consideration (as in the Keator Case), the interest of Horace G. Hough is ascertained as to quantity and price, and not the slightest difficulty would be experienced in compelling him to convey his share. This, of course, upon the assumption that the contract as to him were binding, and, also, that the complainant who prays for a specific performance of the whole contract, should desire to obtain the share of Horace and would ask leave to amend the bill accordingly. This he could doubtless do under the authority of Keator v. Brown, supra.

Upon the argument of the order to show cause I was strenuously urged to make the order absolute and thus preserve the subject-matter of the suit until the final hearing. This I am unable to do. Where an injunction is sought in aid of specific performance the writ will be refused where it appears that the contract sought to be enforced is so incomplete or uncertain as to be unenforceable. Domestic Telegraph Co. v. Metropolitan Telegraph Co., 39 N. J. Eq. (12 Stew.) 160; S. C., 40 N. J. Eq. (13 Stew.) 287. Even if the terms of the contract are complete and certain, in my opinion a preliminary injunction should also be refused, if the agreement were made by an agent who clearly lacked authority to bind his principals, or if, for other substantive reasons, the agreement is palpably unenforceable.

This disposes of all the questions raised upon the argument, and leads to the discharge of the order to show cause.


author: Magte, Ordinary.

text:
    In the matter of the estate of James McSpirit, deceased.
    [Argued October 15th, 1907.
    Decided December 17th, 1907.]
    1. Bonds and mortgages made by three of his sons to testator were found in his possession at his death, and were included in their inventory by hi's executors. On exceptions to the inventory by the obligors, the orphans court struck therefrom the principal of the bonds and left the interest which had accrued thereon up to testator’s death. — Held erroneous, there being undisputed evidence that the bonds were given for a valuable consideration and were payable at a fixed time, and no sufficient evidence that testator had discharged or agreed to discharge the obligations or bad made a gift thereof to the respective obligors.

      2. The jurisdiction of the orphans court to deal with the matter was not questioned in that court or on the appeal. Quaere, whether under the power to adjudge upon the “fairness” of an inventory the orphans court may adjudicate as to the title of choses in action apparently valid and included in the inventory because found in testator’s possession at his death.
    On appeal from the Hudson county orphans court.

      Mr. Marie A. Sullivan, for the appellant.

      Mr. James S. Erwin, for the respondent.
   Magte, Ordinary.

This appeal brings into review an order of the Hudson county orphans court, sustaining (in part) exceptions to the inventory filed by the executors of James McSpirit, deceased. The exceptions were interposed by three of the sons of the deceased, viz.. James McSpirit, Jr., Francis J. McSpirit and Michael McSpirit. They joined in the exceptions, which were directed — first, to the inclusion in the inventory of a bond and mortgage, made to the deceased by James McSpirit, Jr., for the sum of $1,500; second, to the inclusion of a bond and mortgage made by Francis J. McSpirit to the deceased to secure a like sum; and third, to the inclusion of a bond and mortgage made by Michael McSpirit to the deceased to secure a like sum. The exceptions were referred to a master, who reported to the orphans court that they should be allowed) so far as the principal of the respective bonds was concerned, and should be overruled in respect to the interest unpaid which had accrued up to the death of the testator. The master filed with his report the evidence taken before him upon which he reached his conclusions.

The orphans court, upon a hearing of the parties, confirmed the report and struck out of the inventory those bonds and mortgages, so far as they represented principal of the indebtedness admitted thereby, and retained them in the inventory to the extent of the interest up to the time of the death of the testator.

Appellants, who are the executors of the deceased, have appealed from this order. Upon what grounds the court below deemed itself justified in approving the report and making an order which recognized the obligation of the bonds as to the principal up to testator’s death and then to have ceased, has not been made to appear by any opinion or memorandum of the learned judge who made the order.

The evidence taken by the master discloses that th'e’bonds and mortgages in question came into existence thus: Each of the three exceptants made and delivered his bond and mortgage to testator simultaneously with the delivery to him, by testator, of a deed conveying to him the land upon which he gave the mortgage.

It admits of no doubt that each bond had a sufficient consideration, and each mortgage was a purchase-money mortgage. The bonds were conditioned for the payment of the principal sum at a specified date, with interest. All the bonds and mortgages were found in testator’s safe, and the executors would have been derelict if they had not included them in the inventory of the estate.

The contention in support of the order of the orphans court is that it may be sustained upon either of two grounds, viz.: (1) that testator had agreed that the bonds and mortgages in question 'should cease to be valid obligations and securities at his death; or (2) that testator had, in his lifetime, given to each of the exceptants his respective bond and mortgage. The orphans court would seem to have put its determination upon the first ground, for its order sustains the validity of the bonds as interest-bearing up to testator’s death.

The evidence returned discloses no discharge of the mortgages, or contract to discharge them, in writing. Beliance is placed, first, on the conversation which took place between testator and the exceptants at the time the bonds and mortgages were delivered to testator. The conversation is proved by exceptants, who were incompetent to thus testify to the transaction with the testator. Smith v. Burnet, 35 N. J. Eq. (8 Stew.) 314; Skillman v. Wiegand, 54. N. J. Eq. (9 Dick.) 198. The conversation construed most strongly for exceptants amounted only to an expression by testator that they would not have to pay the bonds at his death. This was only the opinion of testator as to the amount of the estate he expected to leave, and which he deemed sufficient to divide to each exceptant the amount of the principal of his bond. There is no indication in the evidence that the testator contracted to discharge the bonds and mortgages at his death. If that could be found it would be unavailable to ex-ceptants, as it was an oral alteration of the terms of a written contract simultaneously made, and besides it was without consideration, and therefore amounted to a testamentary disposition of property not made in the form required by law. Evidence of subsequent statements by testator, which is next relied on, is open to the same objections. Upon the whole case, I think there is no support for the order on this ground.

Nor can any support for it be found in the claim that these bonds and mortgages were the subject of a gift inter vivos. One essential of such a gift is manual delivery by the donor, with intent to pass to the donee the property which is claimed to have been given. There is no evidence upon which delivery with that intent can be found.

It results that the order, so far as it struck from the inventory the bonds and mortgages in question, must be reversed.

But the cause ought not to be thus disposed of without a cautionary word. Singularly, the jurisdiction of the orphans court to deal with the matter presented by the exceptions was not questioned in the court below, nor here. So the cause had been considered and decided. But the taking of that course must not be considered to indicate the view that the orphans court, under jurisdiction to pass upon the “fairness” of an inventory, may determine the title to choses in action which executors have found in a testator’s possession and placed in the inventory. Schoul. Ex. & Adm. (3d ed.) § 286. A claim to such jurisdiction is unprecedented.

The petition of appeal also questions the propriety of the allowance to the counsel for the respondents, and also the allowance to the counsel for the executors. These allowances are large for the amount of the work which was really necessary in the cause. But counsel for the executors failed to bring to the attention of the orphans court its lack of jurisdiction to deal with the question presented. Had that question been primarily presented, and counsel for exceptants had persisted in going on with the evidence, perhaps a different, result ought to be reached as .to his allowance. But on the whole case, I conclude that the allowances to counsel made by the orphans court ought not to be disturbed.

A decree will be made in conformity with this opinion.


author: Magje, Ordinary.

text:
    In the matter of the probate of the last will and testament of Anastasia Davis, and of letters testamentary thereon.
    [Submitted October 29th, 1907.
    Decided January 8th, 1908.]
    1. Where testatrix had testamentary capacity at the time she executed •a will, with all the formalities required to constitute a testamentary disposition, it would be presumed that the instrument expressed her will, ■and the burden is on one claiming it to have been the result of undue influence to establish, not only that such influence existed, but that it produced a testamentary disposition which testatrix would not have made if she had not been coerced thereby.
    2. If the will objected to for undue influence benefited one who, at the time, occupied a confidential relation to testatrix, or stood in a position of trust and confidence to her, the burden was on the proponent to establish that the will was the uncoerced act of the testatrix.
    3. The inference of undue influence will not be drawn alone from proof •of opportunity to exert it, nor will influence be deemed undue which may reasonably be inferred to have been produced by kind attentions and services rendered by the beneficiary.
    4. Declarations of testatrix, before and after the execution of the will, are only admissible, on the issue of testamentary capacity, to indicate a state of mind of testatrix, and are inadmissible to form a basis for an inference of undue influence.
    5. In a will contest, evidence examined and held insufficient to justify a finding of undue influence.
    On appeal from the Hudson county orphans court.

      Mr. Charles J. Roe, for the appellant.

      2'fr. George T. Viclcers, for the respondent.
   Magje, Ordinary.

Tlie appellant, John J. Byrnes, propounded for probate, in Hudson county, a paper-writing which he claimed to be the last will and testament of Anastasia Davis, by which he was appointed executor.

Anna Gibson, one of the grandchildren of the deceased, had filed a caveat against the probate, and the contest thus inaugurated came on for hearing before the orphans court of that county.

The admission of the paper-writing to probate was contested on two grounds: (1) that the testatrix lacked testamentary capacity at the time it was made; and (2) that the testatrix had been unduly influenced by the proponent and his wife, Ella, who was a sister of the caveator and also a grandchild of the deceased. After the hearing, the orphans court declined to admit the will to probate and made a decree to that effect. From that decree this appeal has been taken.

The conclusions of the learned judge of the orphans court disclose that he found the testatrix to have been of sound mind, and to have possessed capacity to make a testamentary disposition of her property. His finding against the will was put on the sole ground that the will was the product of that kind of influence which is called undue, exerted upon the testatrix by the proponent and his wife.

As my review of the case has resulted adversely to the conclusions of the judge of the orphans court in respect to the ground on which he based them, it became necessary that I should review his finding upon the point of capacity. I have therefore examined the evidence with care, and find absolutely no proofs upon which it could be adjudged that the testatrix lacked testamentary capacity.

The question is therefore whether the decree is to be supported upon the evidence shown in the transcript.

As it is established thereby that the deceased possessed entire testamentary capacity at the time, and that the paper was executed with all the formalities required to constitute it a testamentary disposition of property, there is a presumption that it expressed the will of the deceased, and one who contests its validity on the ground that it was the product of influence, must primarily establish that such influence existed as is called undue, that is, such influence as dominated the will of testatrix and produced a testamentary disposition which testatrix would not have made if not coerced by such influence.

If the will thus executed benefits one who at the time occupied to the testatrix a confidential relation, or stood in a position of trust and confidence to her, the burden of proof on this subject is shifted to the proponent thereof, and upon him it devolves to establish that the will was the uneoerced act of the deceased. Barkman v. Richards, 63 N. J. Eq. (18 Dick.) 211; Sparks Case, 63 N. J. Eq. (18 Dick.) 242; Armstrong v. Armstrong, 69 N. J. Eq. (3 Robb.) 817, 824.

The contested paper was executed in the house of the proponent, who, with his wife, was the principal beneficiary thereunder. Testatrix had been brought to their house within forty-eight hours previous, suffering under a mortal disease from which she died some weeks later. So serious was her physical condition at that time, that under the advice of the physician who examined her, a priest of her church was sent for, who administered to her the last sacrament. There was, therefore, opportunity for the exertion of influence by the proponent and his wife.

But the inference of dominating influence will not be drawn alone from proof of opportunity to exert it, nor will influence be deemed to be dominating which may reasonably be inferred to have been produced by kind attentions and services rendered by a beneficiary.

From the conclusions filed by the learned judge of the orphans court, it is obvious that he found no direct evidence of the exertion of any influence by proponent or his wife. There appears no such evidence, and both beneficiaries deny that they attempted to influence deceased. The conclusions were evidently based upon inferences drawn by the judge from facts proved. In the proof upon which the learned judge relied (as appears from his conclusions), statements made by the testatrix, both before and after the execution of the will, were admitted and relied upon. If they were entirely rejected, there would be no evidence to justify any inference whatever of the exertion of undue influence.

The settled doctrine in this state is that statements and declarations made by a testatrix are not admissible as evidence of facts from which undue influence will be inferred. They are only admissible to indicate the state of mind of the person whose testamentary capacity is in question. Rusling v. Rusling, 36 N. J. Eq. (9 Stew.) 603, 607, and cases there cited. Middleditch v. Williams, 45 N. J. Eq. (18 Stew.) 726.

Applying this principle, many .of the statements of the deceased possessed no probative force whatever. They do not tend to establish that- the proponent of the will, at previous times, was trying to get testatrix’s money, or was after her money. Of this charge there is no proof other than that exhibited by evidence of statements of testatrix long prior to the execution of the will, which do not amount to proof.

But there was in some of the statements proved to have been made by the testatrix, evidence indicating a condition of mind toward the proponent, though not toward his wife. From these statements it would appear that the testatrix used contemptuous expressions respecting the proponent, from which it might be reasonably inferred that, some time before the making of this instrument, she disliked him, though there is no proof of any conduct on his part which would justify such dislike.

There was proof that at a previous time testatrix, when living with her granddaughter, the contestant of this will, had made a will in favor of that granddaughter, giving to her about the same benefit as this will gives to the proponent and his wife, another grandchild. Both wills indicated testatrix’s intent not to distribute her property among all her grandchildren and children of a deceased grandchild, but to make a principal beneficiary, remembering each of the grandchildren and great-grandchildren with the bequest of a small sum.

It is obvious that the only support to the decree can be found in the inference to be fairly drawn from the changed purpose of the deceased, indicated by the last will when contrasted with the former will. This will gave a benefit to the proponent, for whom she had at a previous time expressed a dislike, but it also gave a benefit to his wife, whom she did not appear to dislike. From this, it is claimed in the argument that a necessary inference is that proponent exerted, when he had an opportunity, a dominating influence that coerced the testatrix to change her purpose and to make him a beneficiary.

But apart from the proof that proponent objected to the expressed purpose to make him a beneficiary, another inference may be fairly drawn from all the facts. An inference of that kind of fraudulent conduct which consists in extorting benefits from a person almost in extremis, ought not to be made, if another inference not involving fraudulent conduct can reasonably be made. That a fair inference from the facts is that this will was made because of the kind offices then being rendered to testatrix by proponent and his wife, I think is clear. As has been before stated, she had lived for some time with her grandchild, the contestant. The latter was about to take into her household the children of a deceased sister. The grandmother, therefore, left her, though I think, without any feeling of animosity or dislike. • Testatrix went to live alone, and upon one day when the wife of proponent went to visit her, she found her sick in bed, unable to care for herself, and indebted to the casual attention of a neighbor to procure a pitcher of water. Proponent’s wife was unable to remain with her grandmother during the day, but returned to her in the evening, proponent accompanying his wife. They endeavored to make the testatrix comfortable for the night, during which she remained entirely alone. The next day proponent and his wife both went there again. They found the testatrix very seriously ill. They proposed that she should go to the house of her other granddaughter, with whom she had previously lived, or to a hospital, but she refused to do so.

Proponent and his wife appear to have lived in a flat, without a spare room. They proposed, however, after testatrix refused to go to her other granddaughter or to a hospital, to take testatrix to their home and install her in a room which they used as a sitting-room. This she consented to, and they took her immediately, or during the morning, and gave up to her the sitting-room. She was then so ill that they sent for a doctor of whom she spoke. As he was not to be found, testatrix suggested that proponent and his wife should call in their own doctor. This doctor pronounced her seriously ill and threatened with pneumonia, and it was afterwards that the priest was sent for. The next day testatrix directed a lawyer, whom she knew and who lived in the neighborhood, to be called, and she gave him instructions for the will in question, being then in the complete possession of her faculties. During the giving of these instructions, her granddaughter, proponent’s wife, was in the room, but took no part in the discussion about her action. There is some evidence that proponent himself was present during a part of the time and remonstrated with her in respect to his being included as a beneficia^, but testatrix persisted in her previously expressed determination. The lawyer, after receiving the instructions, wrote the will in an adjoining room, and it was duly executed. The testatrix lived for several weeks afterward. Both proponent and his wife denied the exertion of any influence whatever upon the testatrix in respect to her disposition of her property.

It is not a necessary inference from these facts that the proponent of this will, and his wife, dominated the will of testatrix and coerced her into benefiting them by her testamentary disposition. A fair inference is that the services which they had rendered her in removing her from the room in which she might have died alone, and taking her into their own house, and their care for her, were the inducing influences that brought about the changed purpose respecting her property. Such is the inference that I draw from this evidence, and it forbids the adoption of the inference that there was a dominating influence exerted which the testatrix could not have resisted if she had desired to do so.

There is another circumstance pressed in the argument for respondent, which I do not find in the proofs.

It is said that a few days after the execution of the will testatrix made a deed for the real estate of which she was seized; which practically constituted her whole property, to the proponent and his wife. It does appear in the evidence that she made such a deed, but it also appears that it was made after she had heard from another person that the contestant had declared that her grandmother was insane and incapable of making a will. The circumstance pressed is not the execution of this deed, with respect to which the same observations could be made as are made above respecting the execution of the will, but that the deed was assailed by a bill in equity, filed by the contestant ■against proponent and his wife, and was there declared void.

The rules of a court of equity in dealing with gifts inter vivos are far more rigid than those applicable to wills. This was plainly pointed out by Vice Ordinary Reed in the Sparks Case, ubi supra. The reason for the discrimination is obvious. A will remains ambulatory. The testator may revoke it; he may substitute another expression of his determination; or he may change it by a codicil, and his dominion over it remains complete until he dies. A deed duly executed and delivered to the grantee named therein, and recorded, is practically irrevocable unless a power of revocation is reserved to the donor.

Tf there was proof of a decree annulling this deed, made by the court of chancery, there is no indication in the case upon what grounds that determination was made. It is obvious that the question presented to that court in respect to the deed might have been decided on entirely different grounds from those which require a decision in respect to the previous will. My judgment must be formed upon the evidence presented in this ■cause with respect to the situation of the parties at the time the will was executed.

As I think the decree below is unsupportable, it must be reversed, with costs.


author: Magie, Ordinary.

text:
    Melbourne F. Middleton, administrator, appellant, v. William D. Carter, substituted administrator, respondent.
    [Argued November 6th, 1907.
    Decided December 20th, 1907.]
    1. When an administrator is removed from office, and a substituted administrator is appointed under the provisions of the act approved March 22d, 1901 (P. L. 1901 p. SOS), the removed officer is bound to pay to his successor the whole of the personal estate of his decedent except what has-been properly paid out or distributed. In an accounting by the removed officer, he cannot be allowed for the retainer of a claim on the estate made by himself, if it has not then appeared that the estate is clearly solvent.
    2. When the removed administrator sought his appointment and obtained renunciations from those entitled to administer, upon his promise that his services should be gratuitous, he will not be entitled to commissions, nor for money paid to a lawyer for services which the administrator should have performed.
    Ob appeal from the Camden county orphans court.

      Mr. John J. Crandall, for the appellant.

      Mr. Lewis Slarr, for the respondent.
   Magie, Ordinary.

The case discloses that appellant was, on the 8th day of November, 1906, appointed administrator of William L. Carter, deceased, who had been killed in a railroad accident shortly before, and that on the 4th day of January, 1907, appellant was. removed from office by order of the orphans court, and William D. Carter, the respondent, was appointed substituted administrator. Appellant thereupon, and some time in March, 1907, filed an account, to which the respondent, as substituted administrator and also as guardian of infant children of the deceased, filed exceptions, making objections to various items for which the accountant prayed allowance. These exceptions were sustained by the orphans court, and the items excepted to were stricken from the account. From the order sustaining the exceptions and disallowing the items excepted to, this appeal has been taken.

By the provisions of the act entitled “A further supplement to the act entitled fAn act concerning executors and the administration of intestates’ estates,’ ” approved March 37th, 1874, which supplement was approved March 33d, 1901 (P. L. WOl p. SÜS), the administrator who is to be appointed in case any previous administrator has been removed before fully administering the estate of the intestate, shall be called a “substituted administrator,” and shall be entitled to demand and receive the whole of the personal estate of his decedent, except such portion as has been properly and justly paid out and discharged.

Attention was directed in Hoagland v. Cooper, 65 N. J. Eq. (20 Dick.) 407, to the change made by this supplement. Obviously, the account of' the discharged administrator, which upon removal he was directed to make, should exhibit what, under the law, the substituted administrator is entitled to demand and receive, viz., the whole of the personal estate except what has been properly and justly paid out.

The exceptions in the orphans court were directed to allowances claimed for payments by the administrator who had been removed, which, it was insisted, had not been properly or justly paid.

The first exception relates to the allowance claimed by appellant for $189.73, paid by the removed administrator to himself. The evidence, when the exception came on to be heard, clearly indicated that the bill for the payment of which accountant claimed this allowance, was for personal services as a physician to the deceased and his family, for a period of a little over six years prior to the death of the intestate. It did not include any claim for services for attendance during the last illness.

The claim made in the court below, and here, is that the administrator, being unable to sue himself, was entitled to retain out of the assets in his hands the amount of his claim. The right of retainer by an executor or administrator is undoubted. Brit the right of appellant in this case had not yet arisen. Appellant -was removed from his office shortly after his appointment. It had not yet been made to appear whether the estate was solvent or insolvent. Until that fact had been ascertained, he was not entitled to retain the amount of his claim. If the estate proved insolvent, his claim would be subordinate to preferred creditors, and corrld only be admitted on the same basis with other claims of equal degree. Dolman v. Cook, 14 N. J. Eq. (1 McCart.) 56.

It results that appellant should not have had any allowance for this claim in the settlement of this account. It would not be a payment properly made under the act, and the amount to be paid to the substituted administrator should not be reduced thereby. Accountant's right to make his claim upon the substituted administrator will protect him.

The other exceptions relate to claims for allowance for commissions of appellant, and for moneys paid by him to his brother, a lawyer employed to do various matters in the administration of the estate, so far as appellant had administered it. All these exceptions were sustained by the court below.

The evidence taken in the orphans court in respect to these exceptions was deemed by that court to justify the inference that the appellant sought to be appointed administrator of the deceased, as well as administrator of the wife of deceased, who was killed in the same accident. He sought out those who were entitled to administer in each case, and procured from them renunciations of their right, and thereupon the surrogate made the appointment. Appellant, it was held by the court below, had previously made application to the surrogate, without success, and had been informed by the deputy surrogate that letters could not issue to him as a creditor until after a certain period of time, and thereupon appellant sought and obtained the renunciations of the next of kin entitled to administer. As to what occurred at the time these renunciations were given there is conflict of evidence. The orphans court, who saw the witnesses and could judge of the credit to be given to each of them, reached the conclusion that appellant induced the giving of the renunciations by promising that, if he were appointed, he would make no charges against the estate. My review of the evidence' leads me to the same conclusion, and thereupon I deem it clear that the orphans court was right in refusing to this administrator any commission for the short time during which he had acted.

But the same evidence also indicates that he had promised that his brother, the lawyer, would not be employed by him at the expense of the estate. The evidence on this subject is somewhat less clear, but it was deemed by the court below that such was his promise, and I am not able to find ground for reversing that conclusion. Perhaps even such an-undertaking would not exempt the estate from the payment of fees to counsel when required to be employed for the preservation of the estate, but the evidence exhibits no such ease. On the contrary, it shows that appellant’s brother was employed by him to do matters which it was manifestly the duty of the administrator himself to do and if, as is claimed, the administrator was unable to do his duty by reason of the situation of his family, the payment for the services of his brother, under those circumstances, should be made by the administrator himself, whose duties he performed.

It results that these exceptions also were properly sustained.

On the whole case, the decree of the orphans court must be affirmed, with costs.


author: Magie., Ordinary.

text:
    In the matter of the final account of the New Jersey Trust and Safe Deposit Company, administrator &c., of J. Alfred Bodine, deceased.
    [Argued November 6th, 1907.
    Decided January 8th, 1908.]
    1. Where an agreement between an administrator and the persons interested in the estate contemplated a sale of the bonds of a corporation for the protection of the administrator and the reimbursement of the estate for moneys advanced by the administrator and the estate, and where any attempt by the administrator to collect claims in favor of the estate against the corporation would have compelled it to go into insolvency and would have prevented a sale of the bonds, the administrator was not liable for failing to collect the. claims.
    2. A settlement of an intermediate account of an administrator is prima facie correct; and, to justify a correction thereof on the final accounting, the prima facie case must be overcome by evidence.
    3. The court, on the hearing of an exception to the final account of an administrator, based on a failure of the administrator to perform its duty, in that it consented to extravagant allowances to a receiver and his counsel, cannot review the action of the court of chancery in determining what was a reasonable compensation to the receiver and his counsel, and it must be assumed that the allowances were made after a consideration of the work done by them.

    4. On the hearing of an exception to the final account of an administrator, based on the administrator consenting to extravagant allowances to a receiver and his counsel, it appeared that the administrator, after consulting with the receiver and his counsel and with one of the heirs of the intestate, concluded that it would be unwise to object to the claims of the receiver and his counsel. There was nothing to indicate that the administrator acted in bad faith in forming its judgment. — Held, that the exception was not established, especially in view of the fact that the court of chancery makes allowances only after examination of the facts.
    5. Evidence as to the failure of an administrator to charge itself with a sum of money claimed to have been paid to it by a receiver examined, and held to show that such apparent payment was not in fact made, being a mere matter of bookkeeping.
    On appeal from a decree of the Camden county orphans court.
    The following are the agreements referred to in this opinion:

      "Articles of agreement, made this sixteenth day of February, eighteen hundred and ninety-nine, between the New Jersey Trust & Safe Deposit Company, of Camden, New Jersey, a corporation of the state of New Jersey, party of the first part, and Phoebe J. Bodine, widow, and Ernest C. Bodine, Louis F. Bodine, Annabel B. Beilis, Jennie B. Johnson, Fannie B. Johnson, and Vincent Bodine, heirs at law of J. Alfred Bodine, deceased, late of the city and county of Camden, and state of New Jersey, parties of the second part.
    “Whereas, the party of the first part, in the line of its business and corporate powers, is desirous of administering and settling the estate of the said J. Alfred Bodine, deceased, and
    “Whereas, the Bodine Glass Manufacturing Company, a corporation of the state of New Jersey, a portion of the assets of which constitutes a part of the said estate of J. Alfred Bodine, deceased, is now in the hands :cf a receiver, and
    “Whereas, J. Alfred Bodine, during his lifetime, together with Samuel Garwood, entered into a certain lease and agreement to purchase the plant and property iof the Bodine Glass Manufacturing Company for the sum of $160,600.00, which contract they assigned to the Bodine Glass Works, a like corporation which was organized for the express purpose of purchasing said plant and continuing the business of said Bodine Glass Manufacturing Company, and
    “Whereas, the terms iof said lease and agreement to purchase have not been completed, and it is necessary to raise certain moneys to complete the same and take the said plant out of the hands of the receiver, and
    “Whereas, the party of the first part is willing and ready to furnish and provide such moneys to enable the said Bodine Glass Works to secure the title to said plant upon the terms hereinafter mentioned:
    “Now, therefore, in consideration of the premises and the sum of one dollar, to it in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, and in further consideration of the renunciation by the parties of the second part of their right to administer said estate of J. Alfred Bodine, deceased, in favor of the said party of the first part, it' is hereby covenanted and agreed by the party of the first part as follows:

      “First. That in all matters pertaining to the estate of J. Alfred Bodine, deceased, Charles S. King, Esq., or such other person or persons, if any, as the parties of the second part may hereafter appoint or substitute in the place of the said Charles S. King, shall act as counsel for the said administrator, as well as for the said heirs.

      “Second. That the said party of the first part shall immediately furnish and provide all such moneys and sums of money as shall be required, cr in any wise necessary to take up or buy any and all of the claims and debts owed by John J. Burleigh, receiver of the Bodine Glass Manufacturing Company, and release, pay, and discharge the said receiver of and from all of his said debts and liabilities, in order that the said receiver shall be enabled to convey the title to said glass works, plant, and property of the Bodine Glass Manufacturing Company to the Bodine Glass Works, the assignee of said lease and agreement to purchase according to the terms and intent thereof, all of which shall be done within two months from the date hereof.

      “The party of the first part shall hold, as its security for so doing, the entire issue of $150,100 of the bonds of the Bodine Glass Works, secured by a first mortgage on said plant, pending a final adjustment and settlement in accordance with an agreement made, or to be made, between the said the Bodine Glass Works and the party .of the first part hereto.

      “Third. The party of the first part shall pursue and complete the administration of the said estate and file its final account and make distribution thereof at as early a date as possible, avoiding all unnecessary delays therein, and upon the settlement of the personal property of said estate, and upon the request of the heirs thereof, the balance of the said estate shall be turned over to said heirs and said administrator discharged, and, for the administration of said estate and performance of all the duties incident thereto, the parties of the first part shall receive out of said estate only such fees, commissions, and compensations as shall be prescribed by law.

      “Fourth. It is hereby further agreed that ail of the securities which may be found among the effects of the estate of J. Alfred Bodine, deceased, belonging to the estates of Joel Bodine, and of his brother, John J. Bodine, of which estates he was one of the executors, or belonging to any of his children for whom he acted as trustee, or belonging to any other parties, shall be delivered at once to the respective surviving executors of said estates or owners of said securities, and shall not be listed or .appraised as part of the estate of the said J. Alfred Bodine.
    “In consideration of the premises the parties of the second part hereby authorize and empower the said party of the first part, as administrator of said estate, to lend and advance to the Bodine Glass Works out of the funds of said estate, such sums of money from time to time, and for the time being, to an amount not to exceed in all the sum of twenty thousand ($20,000) dollars, as shall be necessary to provide sufficient funds to purchase materials and supplies and defray the expenses of continuing the business of said company, pending the final settlement in accordance with the contract between the Bodine Glass Works and said party of the first part hereto, it being hereby stipulated that such loans and .advancements shall be properly secured to .said estate by notes of said Bodine Glass Works, together with its bonds to be held as collateral thereon.
    “In testimony whereof, the said New Jersey Trust & Safe Deposit Company has hereunto caused these presents to be signed by its president, attested, by its secretary, and its corporate seal to be attached; and the parties of the second part have signed, sealed, and delivered the same on the day .and year first above written.
    “The New Jersey Trust & Saee Deposit Co.
    “(Signed) B. F. Fowler, President.

    “Attest: J. Allen Thompson, Secretary.

    “Phoebe J. Bodine. [seal.]
    “Ernest C. Bodine. [seal.]
    “Louis F. Bodine. [seal.]
    “Annabel B. Bellis. [seal.]
    “Jennie B. Johnson. [seal.]
    “Fannie B. Johnson. [seal.]
    “Vincent Bodine. [seal.]

      “Signed, sealed, and delivered in the presence of: J. Allen Thompson, Eugene B. Johnson, as to Phoebe J. Bodine and Ernest C. Bodine. Charles S. King, as to Louis F. Bodine. Thompson Hoover, as to Annabel B. Beilis. Eugene B. Johnson, as to Jennie B. Johnson, Fannie B. Johnson, and Vincent Bodine.
    “Agreement made this sixteenth day of February, a. n. eighteen hundred and ninety-nine, between the Bodine Glass Works, a corporation organized under the laws of the state of New Jersey, party of the first part, and the New Jersey Trust & Safe Deposit Company, a like corporation of the state of New Jersey, party of the second part.
    “Whereas, the party of the second part having been appointed administrator of the estate of J. Alfred Bodine, deceased, late of the city and county of Camden, state of New Jersey, and having agreed with the heirs of the said J. Alfred Bodine, deceased, to advance and provide such certain moneys as shall be necessary to pay and satisfy all of the remaining obligations of J. J. Burleigh, receiver of the Bodine Glass Manufacturing Company, and thereby enable him to transfer the plant and property of said company to the party of the first part hereto, pursuant to the terms of a certain lease and agreement to purchase between the said receiver and Samuel Garwood and J. Alfred Bodine, bearing date of June 30th, 1898, receiving therefor, and holding as collateral security for such advances and moneys the total issue of one hundred and fifty thousand dollars in bonds of the said Bodine Glass Works, secured by a first mortgage of like amount on the glass plant and factories, dwelling houses and all other property located at Williamstown, New Jersey, which said mortgage has been heretofore duly executed to the Colonial Trust Company of New York City, as trustee, and duly recorded in the Gloucester county clerk’s office, in Woodbury; and
    “Whereas, it is the desire of the parties hereto to negotiate and sell all of the said issue of bonds, secured by said mortgage, for the purpose of raising sufficient funds.

      “First. To reimburse the said party of the second part for its advancement of moneys, with interest, to pay off the claims in the hands of the receiver of the Bodine Glass Manufacturing Company, and all expenses incurred in the settlement of the affairs of said receiver and vesting the title to the glass works property in the party of the first part.

      “Second. To pay off the advancement of moneys to be made by the administrators of the estate of the said J. Alfred Bodine, with interest.

      “Third. To pay off such obligations as the said J. Alfred Bodine in his lifetime, jointly with Samuel Garwood, became liable for, for certain purposes, the benefits of which accrued to the said Bodine Glass Works.

      “Fourth. In payment of certain claims held by certain banks, trust companies, etc., against J. Alfred Bodine and Samuel Garwood jointly, for advancements made by them at various times, to preserve the integrity of the Bodine Glass Manufacturing Company prior to the receivership, to the end that the estate of J. Alfred Bodine may be cleared of all liabilities and obligations in connection therewith, same being in accordance with the agreements and understandings had by and between the said J. Alfred Bodine and Samuel Garwood during the lifetime of the said J. Alfred Bodine; these matters being a proper charge against the said Bodine Glass Works, and it at all times being understood by and between said Bodine and Garwood, as sole owners of the stock of the Bodine Glass Works, that the said debts and obligations should be assumed by the Bodine Glass Works as soon as it was in proper shape to do so.

      “Fifth. To pay off debts accrued up to this date against the said Bodine Glass Works, and further to provide the same with sufficient funds to properly conduct the business hereafter.
    “Now, therefore, this agreement witnesseth, in consideration of the premises, that the party of the first part hereby ratifies and confirms all of the several parts of the contract between the party of the second part and the heirs of the said J. Alfred Bodine, in so far as it relates to any action or thing whatsoever to be done or performed by the said party of the first part, and hereby expressly -agrees to immediately deliver to the party of the second part all of the bonds issued by the party of the first part, and secured by said mortgage to the Colonial Trust Company as aforesaid, to be held by the said party of the second part as collateral security for all moneys which it shall advance and pay out in the settlement of the liabilities and debts of the said J. J. Burleigh, receiver.
    “And the said party of the first part hereby nominates, constitutes, and appoints the said party of the second part its true and lawful attorney and agent, for a-nd in its behalf, to negotiate and sell all or any part of said bonds, secured by said mortgage, for an amount not less than ninety-five per cent, of their par value, and to receive and apply the moneys arising from their sale in the performance of the above agreement.
    “And the party of the first part hereby ratifies and confirms any and all lawful acts and things which the party of the second part may do or perform in the said promises.
    “And the party of the first part hereby further agrees to pay t-o the party of the second part for its services in the negotiations and sale of its bonds a commission of twelve and one-half per cent, on the par value of the entire issue or such portion of the same as may be sold or disposed of in settlement of claims.
    “And the party of the second part hereby agrees on its part to pay out of said commission all the expenses incident thereto, including such commission to Charles S. King, Esq., as may be agreed upon, for and in consideration of services rendered to the parties hereunto in connection with this contract; it being expressly agreed that the aforesaid commission of twelve and one-half per cent, to be paid by the party of the first part to the party of the second part, -shall include all commissions, expenses, claims or charges of every name and nature to be paid by the party of the second part in the marketing of said bonds; and the party of the first part shall be held harmless and released from any additional expense in connection therewith.
    “And it is further agreed that during the period within which said bonds are being sold, or such further period as shall be desired by the party of the first part, that the said party of the second part shall have full and unrestricted access to the books and affairs of the party of the first part.
    “And it is hereby further agreed that if for any reasons whatsoever, that shall thereafter appear, it shall be desirable and necessary, in order to consummate the 1-oan and the sale of the bonds as aforesaid, that a new mortgage should be made, and a new trustee should be constituted, that the present mortgage as now made to the Colonial Trust Company shall be canceled, together with the bonds secured thereby, and a new mortgage of like amount, tenor, and effect, together with a new issue of bonds accompanying .same, shall be issued, as the said party of the second part may hereafter desire, at the expense of the party of the first part.
    “And it is hereby further agreed that, in case the parties of the second part shall fail or neglect to sell all of said bonds within six months from date hereof, this contract and all the provisions thereof shall become void as to all bonds then remaining unsold .at the option of the party of the first part at any tirpe thereafter, immediately after the service of a ten days' notice in writing of such determination to avoid and terminate this contract, whereupon, and upon such termination of this contract, the party of the second part shall ,at once deliver to the treasurer of the party of the first part all of the bonds which shall then remain unsold: Provided, however, that in case not sufficient bonds shall have been sold at the end of said period to reimburse the party of the second part for the moneys advanced to take said property out of the hands of the receiver as aforesaid, such balance of moneys due the said party of the second part, with interest thereon, shall be paid to them by the party of the first part upon the delivery of said bonds so remaining in their hands.
    “In testimony whereof, the said parties have hereunto caused these presents to be signed by their respective presidents, attested by their respective secretaries, and their corporate seals to be attached, pursuant to resolutions of their respective boards of directors, on the day and year first above written.
    “Bodine Glass Works,
    “Per John S. Weaver, Vice President.

    “Attest: Charles S. King, Secretary pro tern.

    “The New Jersey Trust & Safe Deposit Co.,
    “B. -F. Fowler, President.

    “Attest: J. Allen Thompson, Secretary.

    “Signed, sealed, and delivered in the presence of: Charles S. King. J. Allen Thompson.”
    Mr. Thomas B. French, for the appellants.

      Mr. Lewis Starr, for tbe respondents.
   Magie., Ordinary.

The matter brought up for review in this case arises upon five exceptions, filed in the orphans court, to various items contained in the final account presented in that court by the New Jersey Trust and Safe Deposit Company (which will hereafter be called the “trust company”), as administrator of J. Alfred Bodine, deceased. Of these exceptions, the first one was sustained by the order of the court, and no appeal has been taken from that action. The remaining four exceptions were dismissed by that court, and this appeal is to test the correctness of that court’s conclusion.

Before dealing with these exceptions, it will be necessary, to make clear my conclusions, to state the facts which appear by the transcript to have been presented to the orphans court by proof. J. Alfred Bodine, in the latter part of his lifetime, had been interested in a corporation named the “Bodine Glass Manufacturing Company.” This company had become insolvent, and a receiver had been appointed by the court of chancery, upon a bill filed by said Bodine. The receiver was permitted, by the court of chancery, to issue receiver’s certificates and to carry on the business of the insolvent company.

After the lapse of considerable time, it would seem from the evidence, the receiver’s venture in continuing the business was found not to have been profitable. At all events, the receiver was permitted by the court to enter into an agreement with J. Alfred Bodine and Samuel Garwood for the sale of the whole property, for the price of $160,000. The agreement contemplated that the purchase price should be paid in installments, and that the purchasers might go into possession and run the plant upon paying the first installment of $50,000. Bodine and Garwood thereupon caused the incorporation of a new company, called the “Bodine Glass Works,” and each of them subscribed for nine hundred and ninety-nine shares of its capital stock. They assigned to that company (hereafter called the “glass works”) the agreement which they had obtained from the receiver of the manufacturing company, paying nothing for said shares except by the transfer of said agreement. Thereafter the said glass works made a mortgage to secure the issue of its bonds to the amount of $150,000. It is evident from the proofs that it was expected that the bonds could be readily sold, and from the proceeds of their sale the agreement.with the receiver could be performed and the whole purchase price be paid to him.

It also appears that, by the same agreement between Bodine and Garwood with the receiver, the receiver was to sell and dispose of some manufactured stock and apply the proceeds as a credit upon the purchase price of $160,000. Some amount was thus obtained and credited upon the price, but how much is not made to clearly appear.

While affairs were in this situation, J. Alfred Bodine died intestate. He left a number of children, all of whom were of age. What estate he left was evidently in a precarious condition, because he was bound by his agreement with the receiver to pay all the purchase price that had not been paid. No part of it had been paid except the amount the receiver had obtained from the sale of manufactured stock. The bonds of the glass works remained unsold. Bodine was, furthermore, liable to claims of creditors of the glass works if he had not paid for the capital stock in that corporation by the transfer of the agreement to sell, made by the receiver. As that agreement required a large expenditure to enable the glass works to enforce it, it seems evident that it was no equivalent for the par value of the nine hundred and ninety-nine shares of the capital stock which had been subscribed for by him. Thereupon the parties entered into negotiations with the trust company, which resulted in two agreements of even date, and evidently intended to be supplemental. The two agreements are set out in the prefatory statement.

Without repeating the provisions of the agreements, it is sufficient to say that they recognize the necessity of raising money to complete the purchase from the receiver, and the trust company agreed to furnish and provide sums of money, as they should be required, to buy up all of the claims and debts owed by the receiver, and release and discharge the receiver from all his said debts and liabilities, in order that the receiver should be enabled to convey title to the glass works under the agreement. Eor the moneys so to be advanced, the entire issue of $150,000 of the bonds of the glass works was to be held by the trust company as security. The trust company furthermore was to become the administrator of J. Alfred Bodine and settle his estate. All the children of Bodine joined in one of the agreements and thereby consented to such administration, and further agreed that the trust company should advance from the funds of the estate such sums of money, from time to time, to an amount not exceeding $20,000, as should be necessary to provide the glass works with funds to purchase materials and supplies and defray the expenses of continuing the business pending the final settlement between the glass works and the administrator, it being stipulated that loans and advances made out of the estate should be properly secured to the estate by notes of the glass works, with its bonds to be held .as collateral thereon.

The other agreement was between the glass works and the trust company, and provided for the advance of money by the trust company and recognized that the trust company held, as security for such advances, the total issue of $150,000 in the bonds of the glass works. It expressed the desire of the parties to sell said bonds for the purpose of raising funds — first, to reimburse the trust company; second, to pay the trust company the advancements of money made by the administrator out of the estate of Bodine; and third, fourth and fifth, to pay other obligations on which Bodine was liable.

The second exception sought to charge the administrator, the trust company, with certain items due to the Bodine estate from the glass works, upon the ground that those items were collectible, and should have been collected by the administrator. The evidence makes it clear that the glass works had property out of which these claims, if enforced by suit, could have been paid. Upon that circumstance alone, it is strenuously urged that the administrator should be charged with those amounts which, it is said, could have been, but were not, collected by it.

The situation of the estate and parties must, however, be taken into consideration in determining whether the administrator was derelict in duty by not proceeding to collect from the glass works these claims, and whether, if such dereliction existed and could be set up by creditors of the estate, it can be set up by two of the parties who joined- in the agreement with the trust company contained in the prefatory statement. The administrator owed such duties of vigilant care over the interests of the estate as were required by the exercise of a reasonable prudence in attempting to carry out the duties assumed by it as administrator, as modified and affected by the agreement into which all the persons interested in the estate had entered, among whom were thé two exceptants to this account. It is quite apparent from the proofs that if the' administrator had enforced these claims against the glass works, that corporation would have been obliged to cease manufacturing and go into insolvency. In such case, all hope of making sale of the $150,000 of its bonds would have been destroyed. That the contracts contemplated such a sale for the protection of the trust company in its advancements of money and the reimbursement of the estate of Bodine for moneys advanced by it, is perfectly plain. Conduct which would have destroyed all hope of such a sale would not have been prudent, and on the contrary would have left the estate in a worse position than before. I think, therefore, that the exception in question was properly dismissed by the orphans court.

The third exception relates to the failure of the administrator to include in the final account a note of the glass works for $1,200, given to J. Alfred Bodine in his lifetime. That note had been contained in the inventory, but in the first accounting of the administrator, allowance had been claimed for the amount of it, as being of no value. No exception was interposed at that time, and the account was settled. The settlement of an intermediate account presents a prima facie case which must be overcome in order to open it for correction of errors alleged therein. Baker’s Case, 61 N. J. Bq. (W Dick.)

It is not charged that this note was allowed in that accounting as of no value by any fraud or mistake, but if in fact there was mistake, it may now be corrected. To justify present correction, there should be something to show that this note was in fact an abiding obligation of the glass works. There is no such evidence, and I think therefore there has not been shown any mistake in the first account which claimed allowance for it as of no value.

It may be added that, if included as an asset of value, it would stand in the same position as other obligations of the glass works, which, for the reasons above given, I think the administrator properly declined to enforce.

The fourth exception claims that the administrator did not perform its duty in respect to the settlement of the receiver’s accounts in the court of chancery, and particularly with respect to the allowance to him and to his counsel for compensation; It is insisted that the administrator ought to have objected to the allowances because they were excessive.

It is impossible in this case to review the action of the court of chancery in determining what is a reasonable compensation to the receiver and his counsel. It is not to be assumed that that court, and the distinguished vice-chancellor who settled the case and advised the decree, made excessive and unwarranted allowances. The presumption is, and .must be, that the allowances were made after a consideration of the work done by the receiver and his counsel. The particular charge in this case is that not only did the administrator fail to object to such extravagant allowances, but that, appearing by its counsel, it consented thereto.

The evidence on that subject is somewhat contradictory. I think there is proof thereby that the administrator, after consulting with the receiver and his counsel, and also with counsel of the heirs of Bodine, and one of the heirs who represented the others, reached the conclusion that, although the claims were large, yet that it would be unwise to attempt to interfere by objection thereto, and the reason seems to be that it was feared that this might open some questions respecting the sale by the receiver to the glass works, which might prove detrimental to the sale of the $150,000 of bonds, which were not yet disposed of. There is nothing to indicate that the administrator acted in bad faith in forming that judgment, and there seems to have been some reason to support it.

It is urged that because the counsel for the (rust company appeared at the return of the rule to show cause in the court of chaneerjr, and made no objection to the allowances, that that court was compelled to make allowances which were unfair and extravagant. But this contention assumes that the court of chancery makes allowances of-this sort when consented to, while it is well known that, on the contrary, it examines such claims and is careful not to exhaust an estate by allowances that are greater than a fair compensation.

Tbe fifth, exception relates to the failure of the administrator to charge itself with $23,980.16 claimed to have been paid to it by the receiver under the order in the cause in the court of chancery. From the involved and not clear testimony, I have reached the conclusion that the facts, so far as discoverable, are that when the receiver prepared to apply to the court to permit the sale to the glass works to be consummated by conveyance, he had to exhibit to the court a receipt of $160,-000 as the purchase price, and his report shows that he did represent to that court that he had received that sum. In the amount thus represented as received, the whole, or a part, of a credit opened in his favor by the trust company to the amount of $135,000, must have been included. .This was placed to his credit by the trust company, but the whole of it was not used, and does not seem to have been required to be used to enable the receiver to obtain from the court of chancery an order upon him to make the conveyance. The sum above named was not required, and the trust company charged back the amount which was not needed or used, and claims that it was a mere matter of bookkeeping. The receiver, however, in his representation to the court of chancery, declares that he received an overpayment of that sum, and procured to be inserted in the order of sale a direction that he should repay that sum to the estate of Bodine and to Garwood. As, however, the repayment was due, not to them, but to the glass works to whom they had assigned their agreement, this, in my judgment, merely indicates that the receiver was misled. The sum not needed for the purposes of the receiver was not required to be paid by the trust company. This exception was also properly dismissed.

The appellants failing in all these contentions, the decree must be affirmed, with costs.


text:
    Selina N. O’Donnell et al., respondents, v. Ronal McCann, administrator, &c., of Catherine Fitzpatrick, deceased, accountant and appellant.
    [Argued November 15th, 1907.
    Decided January 6th, 1908.]
    1. Where testatrix had resided with her administrator and his wife, but testatrix was not shown to have had knowledge of the fact that the administrator had told his wife she could have the money derived .from testatrix’s hoard, the implied contract to pay for such board was to pay to the husband as the head of the family, and not to the wife.
    2. Where an estate was insufficient to pay legacies in full, they should abate proportionately.
    On appeal from an order of the Middlesex county orphans court.

      Mr. George 8. Silzer, for the appellant.

      Mr. Freeman Woodbridge, for the respondents.
   Magie, Ordinary.

The single question presented by this appeal is whether the orphans court was correct in sustaining an exception to a claim of allowance in the final account of Roñal McCann, the administrator, and appellant. By the account, the administrator claimed an allowance for a payment made to one Catherine McCann for board of deceased, amounting to $555.94. This claim was excepted to. On the trial of the exceptions it appeared that Catherine McCann, to whom the administrator claimed to have paid this sum, was the administrator’s wife; that the administrator lived with his wife and maintained the family; that the testatrix lived in the family, and that the sum claimed for board arose upon a contract implied from these circumstances.

The implied contract thus arising was a contract to pay the husband, the head of the family. There was no contract made by the testatrix with the wife for any services rendered. The testatrix left a legacy to the wife and a daughter for such services. The board was evidently to be paid to the head of the family. An obligation to pay the board to the wife did not arise because the husband told the wife she might have the money. If the testatrix knew of that fact, perhaps a different conclusion might be drawn, but in the absence of any proof of such knowledge, the wife had no claim upon the deceased.

The orphans court was right in maintaining the exception and striking this item from the account.

Other exceptions were presented which were not considered in the orphans court, because by sustaining the first exception, above dealt with, they were rendered of no consequence. If the orphans court erroneously sustained that exception, then the other exceptions ought to have been sustained. They questioned the payment of legacies in full out of the residue of the estate, which was insufficient to satisfy all the legacies. Manifestly this was erroneous, as legacies should abate when the estate is insufficient to satisfy the whole of them.

The decree of the orphans court must be affirmed.