Dey v. Codman.

for the reasons before given, be passed upon in these proceedings in the orphans court.

In the case of Hunt v. Mayberry, 5 Dutch. 403, it was said in reference to the nineteenth section of the act of 1855 (Rev. p. 778 § 118), that the design of the legislature was not to confer on the orphans court all the powers the court of chancery has over cases of administration, guardianship and trusts, but to give a new jurisdiction, or rather to enlarge the jurisdiction, over a class of persons already subject to the power of the court. So, in the legislation under consideration, the intention of the legislature was to confer certain powers, and certain powers only, on the orphans court, and not all the powers which the court of chancery would have over the subject.

So much of the order appealed from as charges the accountant with the amount of the Cook loan and interest, will be reversed, together with the direction to the trustee in connection therewith. So, also, will the award of costs. The accountant should, in the orphans court, pay only the costs of those of her exceptions to the master's report which were not sustained in the orphans court; the rest of the costs of the exceptions should be paid out of the estate. In all other respects the order will be affirmed. The accountant is entitled to costs of both appeals.

J. WARREN S. DEY, appellant,

υ.

JOHN CODMAN et al., executors of ANTHONY DEY, deceased,

Dey v. Codman.

3. They were allowed for taxes paid and for repairs and improvements made on the testator's homestead after his widow ceased to reside therein. By the terms of the will, the executors held it in trust for her and her daughters to live there while they were unmarried, for their natural lives, with a provision that they might sell in certain contingencies, which power was not exercised until ten years after the widow's death.-Held, also, that she should have paid the taxes and costs of repairs and improvements while occupying it, and also after she ceased to occupy it but received the rents therefrom.

4. They were allowed for traveling expenses actually incurred and paid by them, and also the amount of a salary paid to an agent employed by them about the business of the estate, such amount having been taken into consideration in fixing their commissions.

5. They were allowed for payments of certain municipal assessments levied on lands of the estate, although the statute under which similar assessments were laid was afterwards declared by the courts to be unconstitutional; and also for other municipal assessments subsequently paid by them in good faith and with discretion.

6. They were held not liable for refusing an offer of $30,000 for certain lots of the estate which had been valued by a reputable local expert at $95,000, and shortly afterwards, at their request, with a view to fixing a price which would invite buyers, at $65,000, although the lots were afterwards, in order to close the estate and to pay certain assessments thereon which the estate had no funds in hand to pay, bought in at public sale for $1,470, under an agreement by all those interested, (including the executors,) except the appellant, whose interest is one thirty-second part. The agreement was to sell for the best price obtainable, and if one R. should buy he should hold the lands in trust, to be divided among the parties. The sale was extensively advertised and R. was the successful bidder, and the lots were divided accordingly. The value of all lands greatly depreciated by the panic of 1873, after the $30,000 were offered for the lots.-Held, also, that they were not liable for a loss sustained on a sale of the homestead through the same causes, its value being also affected by the existence of the testator's surviving daughters' contingent right to occupy it.

7. They were allowed for the payment of a commission of $300 to a broker who secured a purchaser for them of part of the testator's lands for $15,000.

8. They were held not liable for the non-collection of deficiencies on the sale of mortgaged lands, there being no proof that those deficiencies could in any case have been collected.

9. They were allowed for counsel fees paid, where the services appeared to have been necessary and properly rendered. The question of the allowance for some of those professional services had been considered by the orphans court, when a former account was passed, and they were then allowed.

10. The entire amount of the cash on hand at the settlement of the first account was charged to them in the second account as cash on hand, without deducting therefrom the amount of the commissions due them as fixed by the Dey v. Codman.

court, and also the surrogate's fees on the first account. The second account was rectified by making those deductions.

On appeal from decree of Hudson orphans court upon the final account of executors.

Mr. William P. Wilson and Mr. W. C. Spencer, for appellant.

Mr. John Linn and Mr. Cortlandt Parker, for respondents.

THE ORDINARY.

This is an appeal from the decree of the orphans court of Hudson county made upon the settlement of the final account of the executors of Anthony Dey, deceased, upon exceptions of the appellant to that account. The objections, which were numerous, were all overruled, but the court corrected the account by ordering the deduction of $68 from the amount of two items charged under date of July 28th, 1869, and of $28.08 from the charge of $604.17, under date of May 8th, 1874, and reduced the amount of commissions, as stated by the surrogate in the account, from $1,178.66 to $467.17, and fixed the balance in the hands of the executors for distribution at $605.63.

The grounds of the appeal are the following: First and second. Because the court did not decree that the balance ($6,565.16) brought forward from a former account settled on July 14th, 1869, was not the true balance in the hands of the executors, and because the court did not charge the executors with the amount of the balance as shown by the account, $32,652.62. Third. Because the court did not decree that the charge of the amount of the inventory in the account of 1869 was not incorrect, the appellant insisting that the decree should have charged, in addition to the amount of the inventory, the amount of a mortgage for $6,921.61, dated August 1st, 1853, and given by Edgar M. Smith to the testator, Anthony Dey. Fourth. That the court did not decree that the executors were not entitled to an allowance for money paid to the wife of the testator out of the capital of the estate, but allowed for those moneys. Fifth. That the

Dey v. Codman.

court did not decree that the executors were not entitled to an allowance of all sums of money in excess of $600 a year (presumably reference is made to payments to the widow of the testator) before they invested the sum of $10,000 for her, as directed by the will, but, on the other hand, allowed such sums. Sixth. That the executors were allowed for payments made on account of the testator's homestead after the widow ceased to reside there, she having, after leaving, rented it and received the rents thereof, and repairs and improvements having been made at the expense of the estate; the appellant insists that the executors should have taken charge of and rented the property for the benefit of the estate so soon as she ceased to reside there. Seventh. That the court allowed the salary paid to Anthony Dey, Jr., for his services as agent of the executors, and allowed, also, for traveling expenses. Eighth. That the court allowed, in the account, the amount of assessments on lands in East Newark, owned by the estate, paid by the executors, as follows: In 1872, $795.02; in 1874, $311.20; in 1876, $604.16. Ninth. That the court did not charge the executors with the loss occasioned to the estate by their refusal to accept a cash offer of $30,000 for the Fast Newark property, which they afterwards sold for $1,470. Tenth. That the court did not charge the executors with the loss occasioned by their selling the homestead for a grossly inadequate price, viz., $250, whereby there was a loss of over $14,750, besides interest. Eleventh. That the court allowed to the executors money paid to Caroline R. Bill, as follows: January 5th, 1870, $2,000, and April 17th, 1871, $1,300, which payments, the appellant insists, were contrary to the provisions of the will. Twelfth. That the court allowed the charge of $300 paid to T. P. Ranney as his commissions on a sale of land. Thirteenth. That it did not charge the executors with the loss occasioned to the estate, as alleged by the appellant, by their failure to collect the deficiency on the sales of mortgaged premises on the bonds held by the estate, which the mortgages were given to secure. Fourteenth. That the court allowed certain counsel fees without showing what the services were for which they were paid. Fifteenth. That the court allowed excessive commissions, and

Dey v. Codman,

did not decree that the two sums of $944.45, which appear by the account to have been paid July 28th, 1869, to the executors as commissions, should be disallowed. Sixteenth. That the accounts are incomplete, fragmentary and unintelligible. Seventeenth. That the court did not decree that the sales made by the executors (presumably referring to the sales of the East Newark property and the homestead made to. Edward C. Richards) were not illegal; and, Eighteenth. That the decree is in other respects irregular, informal and erroneous.

As to the first and second grounds of appeal: By the account settled in 1869, there appeared to be a balance against the executors of $32,652.62; in the final account the balance which is brought forward from that account is only the sum of $6,565.16. The difference appears to have been occasioned by the deduction from the balance of the first account of sums of money which the executors had failed to collect upon mortgages which constituted part of the inventory, and which were subsequently foreclosed, and large deficiencies left after the sale of the mortgaged property. If the executors were not chargeable with the deficiencies, then there is no error in this method of settlement, for the final account shows the true balance with which the executors were chargeable at the filing of the account, in respect to those things which entered into the former account.

As to the third: The appellant claims that the mortgage for $6,921.61, given by Edgar M. Smith to the testator in 1853, should be accounted for by the executors as having been collected by the estate, inasmuch as it appears, by the entry upon the record of the mortgage, that it was receipted after the testator's death, in the name of the executors, by Anthony Dey, Jr., their agent, upon which receipt, and the production of the mortgage, the latter was canceled January 12th, 1860. It appears very clearly by the evidence that this mortgage had been paid off before the testator's death. It was given to secure the payment of nine notes, altogether for $6,921.61, maturing, the earliest in 1853, and the latest in March, 1855. The testator died in August, 1859, four years after the maturity of that one of those notes which had the longest time to run. It appears, by