Dey v. Codman.

bility of the executors was considered and passed upon by the court below, upon an examination into all the facts, the same which are now before me, and that, in their judgment, the execиtors incurred no liability in the transaction for damages for fraud or the mismanagement of the estate.

The eleventh ground of appeal was not mentioned upon the argument. That objection appears to have been based upon mistake.

The twelfth is an objection to the allowance to T. P. Ranney of $300 for brokerage on the sale of real estate by the executors, through him, for $15,000. It appears, by the evidence, that Mr. Ranney, who was the attorney and counsel for the executors, had interested himself to find a purchaser for the property for the executors, and had secured one. For these services he demanded commissions by way of brokerage, which were paid to him accordingly. There is no good ground for disallowing the charge.

The thirteenth ground is in reference to the non-collection of deficiencies on sale of the mortgaged premises. There is no proof that the deficiencies could in any case have been collected. All the evidence on the subject is to the contrary.

The fourteenth is an objection to the allowance of counsel fees, because it does not appear what services were rendered for them. This objection, so far as it affects the allowances in the first account, cannot be entertained. The question of the propriety of those allowances was before the court when that account was passed, in 1869, and though evidence has been introduced to show the propriety of those charges (of which there seems no room to doubt), it should be said that as to them the account of 1869 must be regarded as conclusive. Reynolds v. Jackson, 9 Stew. Eq. 515.* And as to those appearing in the final account, the services are sufficiently shown, and they ought to be allowed.

The fifteenth refers to the commissions, and objects to them on the ground that the allowance is excessive, and it objects, also, to two charges of $944.45 for money paid July 28th, 1869, to

Dey v. Codman.

John Codman and Isaac A. Nichols, the executors, respectively. Enough has been said already on the subject of the allowance of the commissions. The two charges referred to appear to have been intended to be for the commissions allowed in the first account, $1,820.90, which had been divided between the two executors. There was, however, an error of $68 in the computation; the two sums of $944.45 together amounting to $1,888.90 instead of $1,820.90, the amount allowed. This the orphans court corrected by directing a reduction of $68 in respect to those two items. The reason for charging those commissions in the final account, although they had been allowed in the first account, appears to have been as follows: The balance shown by the first account was $32,652.62, of which $27.968.41 were the amount of the inventory. In that account the executors were charged with the amount of the inventory, and also with the cash balance in their hands of $6,565.11, altogether $34,553.52; from which were to be taken the commissions, $1,822.90, allowed in that account, and $60 for the surrogate's fees for auditing the account, altogether $1,880.90; leaving a balance of $32,652.62, which was made up of cash, $4,684.21, and the amount of the inventory, $27,968.41. Although the commissions allowed in the first account and the amount of the surrogate's fee were deducted from the credits of that account, in the final account the executors were charged with the entire cash balance before mentioned, $6,565.11, and credited with the amount of commissions and surrogate's fees. The reason for the credit was, it will be seen, the fact that the entire cash balance on the first account was credited on the second.

The sixteenth ground is, that the accounts are incomplete, fragmentary and unintelligible. This objection, except as to the apparent discrepancy arising from the difference between the balance charged against the executors in the first account and that charged against them in the second, is not well taken; but in that respect the account is faulty and ought to be corrected.

The seventeenth ground is, that the court should have decreed that, inasmuch as the executors were individually interested in the sales of the real estate, the sales were illegal, and that it

Rogers v. Hand.

should have charged them with loss occasioned to the estate by reason of the failure to sell when a better price could have been obtained. This objection has already been considered under another head.

The last ground is merely the usual general objection of irregularity, informality and error. After what has been said on the subject of the other grounds, it needs no attention.

The decree of the orphans court will be affirmed; the costs of both sides to be paid out of the estate. The final account should, however, be restated so as to explain the discrepancy before mentioned.

BENTLEY W. ROGERS et al., appellants,

υ.

JONATHAN HAND et al., executors &c., respondents.

1. A testator gave to his housekeeper $1,000, absolutely, and the interest on $8,000 during her lifetime. She had occupied the position of housekeeper in his family for twenty years or more. She presented to the executors a claim for $3,000 and interest (i. e., $500 a year for the preceding six years) for her services to the testator.-Held, that the executors, in the exercise of good faith and discretion, were justified, after she had threatened to bring suit on her claim, in compromising it for $3,000; that the testamentary gifts to her were not in satisfaction of her claim for services, and that a mere notice, given by the residuary legatees to the executors not to pay her claim, was not sufficient το prevent the executors from compromising it.

2 A commission of three and a half per cent. on $289,000 was approved, in a case where the executors had been compelled to carry on litigation; to investigate and ascertain exactly what land the testator owned, and to exercise a testamentary power to sell it.

Appeal from the decree of Cape May orphans court.

Mr. D. J. Pancoast, for appellants.

Mr. W. E. Potter aud Mr. P. L. Voorhees, for respondents.

Rogers v. Hand.

THE ORDINARY.

The controversy between the parties to this appeal is as to the allowance to the respondents, executors of the late Edmond L. B. Wales, deceased, in their account, of the amount of $3,000, paid by them in compromise of a claim made by Mrs. Eliza Adams against the estate for services rendered by her as housekeeper for the deceased for six years next preceding his death; and also as to the amount of commissions which should be allowed to the respondents for settling the estate. The testator died August 19th, 1882, and the will was proved on the 30th of the same month. The appellants insist that the payment to Mrs. Adams ought not to have been allowed, and that the allowance of commissions is excessive, and they appeal accordingly.

The claim of Mrs. Adams was put in on oath before the expiration of the time limited by the order to limit creditors. It

Rogers v. Hand.

was for $500 a year for six years immediately preceding the testator's death, and interest thereon. Mrs. Adams had been the testator's housekeeper for from twenty to twenty-five years before his death. He was a widower for about the last fortyfive years of his life. The appellants insist that the provision made for her by his will should be held to be a satisfaction of all claim on her part against his estate for services. By the will, which was made in February, 1881, he gives to her $1,000 absolutely, and the interest of $8,000 for life. By a previous provision therein, he directs that all his just debts and funeral expenses be duly paid and satisfied by his executors as soon after his decease as it can be done conveniently. There is no statement, nor any indication whatever of any intention that the gift to her shall be a satisfaction of any claim on her part against the estate. The legacies cannot be regarded as a satisfaction of the claim in question. The following considerations