Dey v. Codman. the testimony of James R. Dey, son of the testator, that the notes were all paid. He appears to have been conversant with his father's business, particularly with regard to the mortgage in question, which had its origin in his discovery of an error in computation of an account between his father and persons with whom he was interested in real estate transactions. He swears that his father told him that they were all paid. He qualifies the statement, however, by saying that what his father said was, that he had no more of the notes that is, that he had used them up. He further testifies that the notes were not all paid at maturity, though some of them were. The original mortgage was not produced. We are, therefore, without the advantage of knowing what endorsements of payments (if any) were put upon it by the testator. It is clearly shown that no money was received by the executors in consideration of the receipt before mentioned, given in their behalf. The mortgage appears to have been in the hands of the late Abraham O. Zabriskie, as attorney for some one. He applied to Anthony Dey, Jr., the agent of the executors, to have it canceled, on the assumption that it was paid, and the receipt before mentioned was given. Mr. Dey swears that the mortgage was never in possession of himself or the executors; that he presumes that he signed the acquittance on the production of the notes, and that neither he nor the executors received anything in consideration of the cancellation or receipt. It will be observed that the mortgage was canceled in 1860, more than twenty years ago. The fourth and fifth grounds were not presented for adjudication on the argument. As to the sixth: The appellant insists that the executors should not be allowed for taxes paid and repairs or improvements made on the homestead after the widow ceased to reside therein. By the will the testator provides that the homestead and such of the furniture therein as belonged to him, should be held by his executors and trustees in trust for the use and occupation of his wife so long as she might live and remain his widow, and for such of his daughters as might remain unmarried or be in a Dey v. Codman. state of widowhood, for and during their natural lives, and that after the death of the survivor of them, the property should be sold for the best price that could be had therefor, at public auction or private sale, and the proceeds fall into the residue of his estate; and that if the persons entitled to the use and occupation of the estate might desire to sell it and remove from it, or if at any time they should unanimously agree to sell and quit the property, then they might do so, and the proceeds should be divided among such of them as were entitled to his residuary estate. It appears that the widow ceased to occupy the homestead before her death, which occurred April 12th, 1871; that she rented the property from the time she left it until her death, and took the rents for her own use, her construction of the devise just quoted being that she was entitled for life to the use of the property, either personally or by her tenants. Under such a gift, the donee is not confined to the personal use of the property, so that he is debarred from letting it during the conti ance of his interest. King v. Eatington, 4 T. R. 177; Rabbeth v. Squire, 4 De G. & J. 406; Ingersoll v. Ingersoll, 9 Stew. Eq. 127. But the widow in this case was bound, as equitable life-tenant, to pay the taxes and all necessary repairs. It appears from the evidence that she paid the taxes so far as her means would allow, and the balance was paid by the executors. It would seem that the repairs and improvements which were put on the property were also paid for by the executors out of the estate. The property was not sold until about ten years after the death of the widow, but it is to be remembered that the title was clouded by the provision for the benefit of the testator's daughters, either while unmarried or when they should become widows. The evidence in the case is not such as to warrant charging the executors with any rent for the property after the death of the widow, or to justify a refusal to allow the executors for the repairs and improvements. The seventh ground of objection is, that the court has allowed for the salary of Anthony Dey, Jr., agent of the executors in the business of the estate. Dey v. Codman. It is enough to say on this head that it appears that the fact that the salary was paid out of the estate to this agent was taken into account in fixing the amount of the commissions of the executors. The settlement of the estate began in 1859, and the account was filed in 1880. So it appears that twenty-one years, or thereabouts, elapsed from the beginning of the settlement of the estate until its termination. For the compensation of the agent $4,200 in all were allowed; in addition whereto, commissions to the amount of only $2,288.06 were allowed to the executors. The commissions allowed in the account of 1869 were $1,820.90; in the final account, $467.16. The executors were entitled to commissions upon about $160,000; the commissions on which, at five per cent., would be about $8,000. The salary of the agent and the commissions allowed are less than $6,500 altogether. The objection is made, in this connection, to the allowance of traveling expenses to the executors. The amount is not large under the circumstances. The expenses appear to have been bona fide incurred and paid, and they are allowable in addition to commissions. The statute provides for the allowance of commissions over and above the actual expenses. Rev. p. 776 § 110. Eighth. The appellant insists that the executors ought not to be allowed for the amount of certain municipal assessments paid by them on certain lots of land of the estate in East Newark. These payments were made in 1872, 1874 and 1876. The ground of objection is that the acts under which those assessments were made did not limit the assessment of benefits to the advantage derived by the property from the municipal improvement. It is to be remembered that the decision which established the unconstitutionality of such provisions in municipal charters was not made until March, 1874, and that it reversed the decision of the supreme court sustaining an assessment under such a provision. Agens v. Newark, 6 Vr. 168, 8 Vr. 415. So that, when the assessment of 1872 was paid, such legislation had not passed under judicial condemnation. As to the other two assessments, it will be enough to say that the executors appear in this matter, as in all other things in their management of the Dey v. Codman. estate, to have acted in entire good faith, and to have exercised care and discretion in their dealings with reference to it. These payments were not only made in good faith, but it appears they were made by the advice of counsel. They were made in respect to municipal improvements, the benefits of which were to be reaped by the property. The ninth ground of appeal is that the executors refused an offer of $30,000 for the East Newark property, and afterwards sold the property for $1,470 over and above taxes and assessments; so that, as the appellant insists, a loss of over $28,500 occurred to the estate from their mismanagement. As has just been said, it appears that the executors acted bona fide in all their transactions touching the estate. The offer of $30,000 cash was made to Dr. Nichols, one of the executors, about 1873, by Joseph M. Duclos. He declined it on the ground that it was not sufficient-that the property was worth far more. Subsequently, Dr. Nichols met Mr. Duclos, and requested him to make another offer of a larger sum, and the latter testifies that he believes he went again to see Dr. Nichols in 1874, and that then he offered him a little more than $30,000. There were about one hundred and thirty lots in the property, all unimproved. With a view to their guidance in disposing of this property, the executors had employed a competent person, Edward M. Reilley, living in East Newark, and well acquainted with the value of real estate there, to make an estimate of this property, in order that they might understandingly fix a price upon it, with a view to selling it for the benefit of the estate. The value of the property was fixed by that person at $95,000. They requested him to reconsider the matter, and fix such a price upon the property as would invite buyers. He did so, and reduced the valuation to about $65,000. When Mr. Duclos made his offers for the property they were declined merely because they were not more than about one-third of the value of the property as fixed by Mr. Reilley, and not one-half of the amount fixed by the same person when he put the valuation so low as to tempt buyers. The refusal to accept the offers was, as the executors believed at the time, in the interest of the estate, in which both Dr. Dey v. Codman. Nichols and Captain Codman were interested through their wives, who were daughters of the testator. Shortly after the refusal the panic of 1873 came, and there was no longer any sale for such property. It appears by the evidence that the taxes and assessments were left unpaid on the property because of want of funds of the estate wherewith to pay them, and that, for the purpose of closing up the estate, it was determined by the executors to sell the property for the best price that could be got for it. It was extensively advertised for several weeks, and every effort made to sell it at a good price. The result, however, was that it was sold to Mr. Richards. The sale was a public one, and he was the highest bidder. There was an understanding, however, between him and those interested in the property, with the exception of the exceptant (whose interest is one thirtysecond part), that he took the title in trust for the persons interested in the property under the will, to make a fair and satisfactory division thereof among them. The evidence shows, it may be observed, that he has made a division and conveyance to all except the appellant, who has refused to accept a conveyance or in any wise recognize the validity or propriety of the sale. Under the circumstances, in view of the fact that the refusal to accept the offers made by Duclos in 1873 and 1874 was due to a desire on the part of the executors to get a fair price for the property, and that the low price at which it sold, subsequently, was due to the depreciation in real estate, especially property of that character, which began in 1874 or thereabouts, and continued for many years, there is no ground for charging the executors with the difference between the price for which the property could have been sold to Duclos and the price at which it was actually sold, subsequently. Such a charge must necessarily be based upon bad faith or gross mismanagement. It is impossible to find either in this transaction. The same considerations apply to the sale of the homestead. In that case, it should be added, there was hindrance to the sale of the property from the fact of the existence of the interests of the daughters of the testator therein. It may be further remarked that in regard to both of these sales the question of lia |