Smith v. Gummere. allowed. It appears by an examination of the vouchers that there are errors in some of the credits for taxes. Instead of the credit of $28.13 in each of the years 1871, 1872 and 1873, there should be a credit of $34.50 in each year. Instead of the allowance of $34.50 for taxes in 1874 and 1875, the allowance in each year should be of $28.13, and instead of $25.50 in 1876, the credit should be of $22.50. The eleventh exception is on the ground that the master has made no allowance for losses in the collection of rents for the Lamberton house, and hence has overcharged the guardian for those rents. This subject was dealt with under the tenth exceерtion on the part of the complainant. The exception is overruled. The twelfth exception is based on the allegation that the master, while he has charged the account with the rents of the Lamberton property, has not allowed for the taxes paid. Some of the taxes were allowed, but, as before stated, others were not. The errors on this head were pointed out under the tenth exceрtion on the part of the complainant. The thirteenth exception is an objection to the master's charge of interest on the rents of the Lamberton property. It alleges that he has erroneously charged interest, and (if interest be chargeable) on an incorrect amount, and for an improper length of time. It should be remarked that in the account "the rents of that property should constitute part of the charges in the years in which they are held to have been received, and not as in the account under consideration, be segregated in a separate statement and the balance only taken into the account at the end." The objection is not well founded. It has already been said that the master has charged too small an amount of rents. As to the charge of interest on rents, he has in fact charged far too little. On $759.35 collected between January 1st, 1865, and April 1st, 1874, he has charged interest for only four and five-eighths years, instead of for the whole time since the rents were collected, as he should have done. He has also charged too little interest on the rest of the rent. The last, the fourteenth, exception is a general one that the balance reported against the guardian is too great. Since the Smith v. Gummere. account must be restated it is unnecessary to pass upon this exception. It remains to consider the exceptions filed by Mr. Owens. His first exception is an adoption of the first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth exceptions of the administrator. They have, therefore, been considered and passed upon. The first, fourth, eighth, ninth, tenth and twelfth were allowed, and the others overruled. The second exception is that the master has not credited the fund of the special guardianship with any of the allowances for board, clothing, attendance or money furnished by the general guardian to or for the ward, but has credited all of them to the account of the general guardianship. It has already been said that the master ought not to have taken the moneys of the special guardianship fund into the account of the general guardianship. For the same reason the special guardianship fund is entitled to no credit on account of the allowances mentioned in this exception, unless it should prove that the amount of those allowances is greater than the debits of the general guardianship account, in which case equity would require that the excess be credited on the account of the special guardianship. The next exception is that the master credited the amount of the before-mentioned mortgage entirely to the account of the general guardianship, and no part of it to the other fund. When the accounts are properly made up, it can then be seen where that mortgage should be credited, but it cannot be told before that time. There is no evidence to show out of which fund the money invested in the mortgage was taken. The investment took place in 1875, ten years after the special guardian's report of the investment of the money derived from the sale of the Edgewater property in government securities was made. An equitable application of it must be made, but it is impossible to make such application before the true state of the accounts of the general guardianship is ascertained. The last exception is of a general character-that the balance found to be due on the special guardianship account is too great. The master has charged the special guardianship with only the Palmateer v. Tilton. principal of the investment in government bonds. That is toc little. He should have charged it with the interest also. The exception is overruled. The report will be sent back to the master with directions to restate the accounts in accordance with the views expressed in this opinion. Of the complainant's exceptions, eleven in number, nine are sustained and two overruled. Of those of the administrator, fourteen in number, six are sustained and seven overruled. One is not passed upon. Of those of Mr. Owens, which are practically fifteen in number, for his first exception adopts twelve of those of the administrator, seven are allowed and eight overruled. AMOS PALMATEER et al. υ. 39 40 67L 348 JOHN P. L. TILTON, admr., et al. On a bill by the alleged vendee against an administrator cum testamento annexo, for the specific performance of a contract for the sale of lands alleged to have been made by the executor, who had a testamentary power of sale, the vendee is incompetent to prove the contract. Bill for specific performance. On final hearing on pleadings and proofs. Mr. C. Robbins, for complainants. Mr. W. H. Vredenburgh, for defendant Tilton, administrator. THE CHANCELLOR. This suit is for the specific performance of an agreement for sale of land. It is brought against the administrator de bonis Palmateer v. Tilton. non with the will annexed of William A. Harvey, deceased, late of Monmouth county, the devisees under the will, and the husbands of such of them as are married women, and the holder of a mortgage given by Mr. Harvey and his wife on the premises and other land. The property in question is a small piece of land in what was called Central Park, a tract lying between Key East and Ocean Grove, near the sea-shore, in Monmouth county. It is wholly unimproved, and lies back from the shore. It contains eighty-six hundredths of an acre. Mr. Harvey owned it at the time of his death. By his will he gave his wife all the residue of his real estate after payment of his debts, and so much of his personal property as she might choose to take, and fully authorized and empowered her to sell and convey (but only for her support) the whole or any part of his estate, real or personal. And he ordered his executor to sell all his personal property not taken by his wife, as soon as convenient after his death, and so much of his real estate as would be necessary to pay his debts and funeral expenses; and provided that such sale of his real property should be either public or private, as the executor should think best, and on such terms and conditions, and in such quantities as he should think and adjudge to be for the interest of all persons interested in the estate. And he further provided that the surplus of the proceeds, after payment of his debts and funeral expenses, and the cost and charges of selling and of settling up his estate, should be paid over to his wife. He appointed Abner Allen his executor, who proved the will May 24th, 1875. The complainants allege that on the 5th of March, 1881, Mr. Allen sold to them the land in question for the price of $500, then agreed upon between him and them, of which they then paid to him $25, and were to pay the balance within a year from that time, and that the deed was to be delivered on the payment of that balance. Mr. Allen died May 6th, 1881, and the defendant, John P. L. Tilton, was appointed administrator de bonis non cum testamento annexo on February 27th, 1882. Amos Palmateer, one of the complainants, swears that he made the purchase of the property for himself and his brother John, and he details the circumstances. He says that Palmateer v. Tilton, when he paid the $25 he took a receipt from Mr. Allen, drawn by the latter, and signed by him as executor of Mr. Harvey; that the receipt (which he says is lost) was as follows: "Received March 5th, 1881, from Amos Palmateer and John Palmateer, $25 on account of land south of toll-gate, of the estate of William Harvey, deceased, commencing at an iron plug on the east side of the railroad; thence running northeasterly until it strikes the centre of Evergreen avenue; thence running east along the centre line of Evergreen avenue until it strikes the centre of the turnpike; thence southerly as many feet as it is from the iron plug to the centre of Evergreen avenue, north; and the balance, $475, to be paid within the year, and the deed to be given when paid." The Palmateers owned a triangular piece of land on the corner of Evergreen avenue (on the north) and the New York and Long Branch railroad (on the west), between the latter and the turnpike (on the east), which is parallel to the railroad, or nearly so, and they were desirous of buying of the estate of Harvey enough land adjoining between it and the turnpike road to make, in connection with their plot, a plot extending along Evergreen avenue from the railroad to the turnpike of the same depth on the turnpike as that which the triangular plot had on the railroad. The description in the receipt is of such a piece, but it does not, in the language of the surveyors, close; the last line is wanting. If the agreement were established, the description, especially in connection with the evidence outside of the alleged contents of the receipt, would be sufficient to identify the property. But the proof of the contract is not sufficient. The receipt is not produced. Amos Palmateer says it is lost. The evidence of the loss itself is not altogether satisfactory. He says he does not know where it is, nor how it got lost-not positively -but he has his ideas as to how it got out (of the safe). He does not, however, state what his theory is on that subject. But if it were conceded that the loss is sufficiently proved, the secondary evidence offered to establish the receipt is not sufficient for the purpose. The principal evidence on that head is the testimony of Amos Palmateer. He testifies to the giving of the receipt, and to its contents, but he is not a competent wit |