Baker v. Johnston.

EXECUTORS OF WILLIAM H. BAKER, appellants,

υ.

MARY K. JOHNSTON et al., respondents.

Executors were directed to convert and invest the residuary estate, and to divide it when the testator's youngest child should have attained its majority, and also thereafter to hold testator's daughter's shares during their lifetime. They sold the real estate which constituted part of the residue.-Held, that they were entitled, as executors, to commissions on the proceeds of the sale, and that they would also be entitled, as trustees, to another commission thereon, for the services they might render as such in reference thereto.

Appeal from Morris orphans court.

Mr. E. D. Halsey, for appellants.

Mr. G. T. Werts, for respondents.

THE ORDINARY.

The question presented on this appeal is whether the executors are entitled to commissions upon the money received by them on the sale of certain real estate, part of the residue. By the will they are made trustees of the residue, to convert and invest it, and to divide it when the youngest of the children of the testator shall have attained to majority, and part of it is to be held by them in trust, after the division, for the lifetime of the testator's daughters. The orphans court refused to allow commissions on the money received for the land. This was erroneous. The executors, as such, collected the money, and must be considered as having turned it over to themselves as trustees. According to the statements of the petition of appeal, it has been duly invested for the benefit of the cestuis que trust.

This is one of that class of cases in which the duty of the executors as such ends at a certain point, and their duty as trustees begins there. In such cases the executors are entitled to

Terhune v. Pinkney.

lawful commissions for their services as such, and they will, as trustees, be entitled to compensation for the services they may render in that capacity. The court deals with them in the matter of compensation in such cases precisely as if the two trusts, the executorship and the trusteeship, were in different hands. Lathrop v. Smalley, 8 C. E. Gr. 192; Hurlburt v. Durant, 88 N. Y. 121; Mitchell v. Holmes, 1 Md. Ch. 287; Witherspoon's Case, 3 Rich. Eq. 13; Aston's Case, 5 Whart. 228. That part of the decree which fixes the amount of the commissions will be reversed, with costs to be paid out of the estate.

WILLIAM TERHUNE, appellant,

υ.

WILLIAM H. PINKNEY et al., respondents.

An appeal was taken on July 9th, the complete record was filed in the surrogate's office on September 16th, and on October 15th, the first day of the term, the appeal was dismissed because the appellant had not filed here a transcript of the proceedings below. On a motion to re-instate the appealHeld, (1) that notice of the motion to dismiss the appeal was not necessary; * (2) that if appellant had needed additional time for filing his transcript, he ought to have applied therefor promptly.

On appeal from decree of Sussex orphans court. Motion to re-instate appeal.

Mr. M. Rosenkrans, for the motion.

Mr. T. Kays, contra.

THE ORDINARY.

On the first day of the last term of this court, this appeal was dismissed, on the ground that the appellant had not caused the

Brady v. McBride.

transcript of the proceedings in the orphans court to be filed as required by the rules of this court, nor at all. The appellant moves to re-instate the appeal, on the ground of surprise and merits. The allegation that one of the proctors of the respondents, on the 12th of July last, assured the proctor of the appellant that "no advantage would be taken of the situation," that is, that the fact that the stenographer's translation of his notes of the evidence had not been filed in the surrogate's office, would be regarded as a sufficient excuse for not filing the transcript within the time fixed by the rules, is positively denied. It was clearly the duty of the proctor of the appellant to apply to the court for further time, if it was needed, to file the transcript. Moreover, the record of the evidence was filed in the surrogate's office on the 16th of September, and the first day of the next term was the 15th of October. There was, therefore, time enough after the record had been filed to get the cause ready for hearing at the last term. The proctor of the respondent moved, as before stated, on the first day of the last term. That was the first term after the taking of the appeal, which was taken on the 9th of July last. He was not bound to give notice of the motion. The motion to re-instate will be denied, but without

costs.

PHILIP BRADY et al., appellants,

υ.

MARY MCBRIDE et al., respondents.

In February, 1876, a will was executed by a widow, who was then about eighty-two years old, and blind. In November, 1878, an inquisition of lunacy found that she was then of unsound mind, and had been so for three years preceding. Her testamentary capacity, at the time when her will was made, was, nevertheless, shown and established by the testimony of witnesses, and the orphans court decree ordering her will to be admitted to probate was affirmed.

39 495 47 242 !

Brady v. McBride.

Appeal from decree of Hudson orphans court, admitting to probate the will of Margaret Devine, deceased.

Mr. F. McGee, for appellants.

Mr. J. Garrick and Mr. G. Collins, for respondents.

THE ORDINARY.

This is an appeal from a decree of the orphans court of Hudson county, admitting to probate the will of Margaret Devine, deceased, late of that county. The testatrix was a widow. She had never had any children. By the will, which is dated and was made on February 24th, 1876, she gave to her brother, Matthew Brady, for life, a house and lot in Jersey City, then occupied by him (she lived with him at that time), with remainder in fee to his daughter, Margaret Conlon, her namesake, and gave to his other daughter, Mary McBride, the adjoining house and lot, called the Lohman property, in fee. She gave the residue of her estate to her brother Matthew, and appointed him executor. He predeceased her. She died in 1883. Не died in September, 1878. The will was executed with all due legal formalities. It was drawn by Mr. Garrick, a lawyer of Jersey City, who also superintended its execution, and was one of the witnesses. The testatrix was blind, and was probably about eighty-two or eighty-three years old. It appears, by Mr. Garrick's testimony, that he drew a will for her in 1874, the instructions for which he received from Matthew, with whom she was then living, but it was not signed. After the draft of it was made, Matthew told Mr. Garrick that he need not call in reference to it until he should be sent for. In February, 1876, shortly before the execution of the will in dispute, Mr. Garrick was sent for to go to the house of Matthew to see the testatrix. He went there and took with him the draft of the will of 1874. That paper gave to Mary McBride the Lohman house and lot, in fee, and all the residue to Matthew. It appointed Thomas Fitzimmons and Mary McBride's husband, executors. The testatrix, after Mr. Garrick's arrival at the house, gave him

Brady v. McBride.

directions to draw the will. It was to differ from the draft of 1874. He took a memorandum of those differences, and then went to his office and made a draft of the will, and had it copied. The next day, or a very few days after he received the instructions, he took the copy to the house, read it over to the testatrix, and asked her if it was correct, and she said it was, and that she was ready to sign it. He says that when he received his instructions from her, he read the draft of 1874, and explained it to her in language that he thought she would understand, because there were some technical words in it; that because she was blind he was very careful to explain it to her thoroughly; that he used "homely" language to her so that she would understand, and that she told him herself what changes she wanted to have made. He further says that she satisfied him that she knew the exact nature of the business-that she thoroughly understood what she was doing. He further says on the same subject, speaking more particularly, that he read the paper of 1874 to her, and explained each clause to her-explained the meaning of it; that he told her that that paper gave the Lohman house and lot to Mary McBride absolutely, and that the next clause gave the other house and lot to Matthew absolutely, and he says she then said she would like to have the latter property go to Margaret after her father's death; that he then spoke of the residuary clause, and he thinks it was read, and he told her it would cover anything else there might be, money in bank and personal property, and she said that that was to go to Matthew. He also says that she was at his office two or three times on other business-in reference to her deceased husband's estate and that the first time she came was before the will was made.

As before stated, Matthew died in September, 1878. In October of that year a commission of lunacy was, on the application of Mrs. McBride, issued out of the court of chancery, under which, on the 12th of November following, there was an inquisition, by which it was found that the testatrix was of unsound mind, and had been so for the three years next preceding and upwards.

The testimony in reference to her testamentary capacity at the