Brady v. McBride.

time of making the will is conflicting, but the preponderance of it is in favor of her competency. In addition to the evidence of Mr. Garrick, already spoken of, as to what occurred in the conversation between him and her at the time when he took her instructions for the will, there is other evidence in the testimony of Mrs. Conlon of her intelligent action in the matter. That witness says the testatrix requested Matthew to send for Mr. Garrick to draw her will; that the testatrix asked Matthew who drew up her husband's will, and he answered that it was Mr. Garrick, and she said she would like to see him, that she would like to make her will, too; that Matthew said it was time enough, and she replied that it would not cause her to die any sooner, and that she liked to get things off her mind and to have things settled. Matthew then promised to send Mr. Garrick to her, but did not do so until two or three days afterwards. Dr. O'Callaghan attended her about 1877 every day for about a fortnight. She had an inflamed eye. He says she told him her symptoms and explained them satisfactorily, and that at the close of his attendance she settled with him as patients usually do; that he and she reckoned up the number of visits and he stated the charge for each visit; that she endeavored to get him to take less than his regular charge, and that he found her very close and penurious in the payment of bills. He also says that at that time he thought she exercised all her mental faculties reasonably, and that he saw nothing about her at all to lead him to think that she was in any way insane or demented, and that he is very well satisfied that she was sound in mind. Five years afterwards he attended her, and he says she was not insane or demented even then; that she was able to talk and converse then, but was very old and feeble. He adds that he saw nothing wrong about her mind and that he thinks that even then she had testamentary capacity. Patrick McNulty, one of the executors of her husband, testifies that in 1874 or 1875, he thinks it was the latter year, he took $100 to her from his co-executor, Mr. Layatt; that he went to her room and she requested all others present to withdraw from the room, and that she then shut the door and said to him that she wished him to keep the

Brady v. McBride.

larger portion of the money and give it to her as she should want
it. He says she said her reason was that she would avoid the
requests of the young people about her for gifts of money.
When he asked her how they would know that she had the
money, she answered that she was blind, but they could see
where she put her money at any time; that she would have to
show them what money she had. She took only $5 out of the
$100 and he retained the rest for her, and gave it to her as she
wanted it afterwards through about six months, in payments of
$10, $20 and $25. The arrangement between them was that he
was to call there every week, but he did not call so frequently.
He said that when he called she talked to him on her business;
that from the conversation he had with her and his knowledge
of her, he had no idea, in 1876, but that she was as sound in
mind as he himself was; that she always talked as sensibly to
him as she did before she lost her sight. Mr. Layatt, his co-
executor before mentioned, did business with her personally in
1874 and 1875, and he thinks in 1876. He says that she ob-
jected so much to his management of affairs (his expenditures
for repairs &c.), that he was unwilling to go and see her any
more, and that the last money he paid her he paid in 1878
through Mr. Fitzsimmons, who lived in the same house in which
she lived, and who got her receipt for him therefor. He says he
never looked upon her as being "crazy in any way, manner or
shape," and that she was as sound in mind the last time he saw
her as ever. Hugh O'Reilly saw her very frequently during the
last two or three years before Matthew died, which was in 1878.
He says she was mentally very smart and shrewd and had a
good memory. Thomas Aldridge saw her in 1877 and had con-
versations with her on business at his office, to which she came.
He says he saw nothing to indicate any unsoundness of mind.

Opposed to this testimony on the part of the proponents, is that produced by the caveators, consisting of the opinions of nonexpert witnesses as to her competency, with the results of their observation of her mental condition. Their evidence is not such as to counteract the testimony of the witnesses who have testified to her capacity, and whose opportunities for observation were

Brady v. McBride.

quite as good, at least, and their intelligence as great as that of those of the witnesses on the part of the caveators who have testified to the contrary. The application in lunacy was not made until November, 1878 (after Matthew's death), nearly three years after the will was made. The finding of the jury that the lunacy had existed for three years, is not conclusive. Any presumption which it raises is rebutted by the proof that the testatrix had testamentary capacity at the time of the making of the will.

The proof shows that there was great affection between the testatrix and Matthew, so great that his death appears to have overthrown her reason. He not only cared for her tenderly while he lived, but made her welfare the subject of special charge on his death-bed, to his daughter, Mrs. McBride, exacting from her a promise that, come what might, she would always take care of his blind sister. He brought the testatrix from her house in another part of the city to his own, in order that she might live there, in his family, and there is great reason to believe that he did it merely out of affection for her, and because she was not properly cared for at home, but was neglected, if not entirely deserted, by the nephew and niece on whom she relied for care and attention, and whom she had herself brought over from Ireland to live with her. There is no proof of fraud on the part of Matthew or his family to procure the testamentary disposition of her property in his or their favor. On the other hand, it seems that the will which was drawn in 1874, though it gave all her property except the Lohman house, to Matthew, was never executed, and when, in 1876, she proposed to make a will, Matthew endeavored to dissuade her from it, by saying that there was time enough for that. The will of 1876 was less favorable to him than the proposed will of 1874, because it gave him only a lifeestate instead of a fee in the property on which he lived. When the circumstances and relations of the testatrix and the beneficiaries under the will are considered, the will must be regarded as a very natural one.

The order of the orphans court should be affirmed. The costs of the appeal, with a counsel fee of $150 to the counsel of each side, will be paid out of the estate.

Kinnan v. Wight.

MARY L. KINNAN, appellant,

υ.

JAMES W. WIGHT, executor, respondent.

1. An executor may pay any claim against the estate, which he is satisfied is just, without requiring a statement of the items thereof, or that it be

sworn to.

2. An agreement among all the parties interested in an estate, whereby one obtained a discharge from her indebtedness to the estate, and another received payment from the estate for services to the testator, estops the former from excepting to the executor's account because of such payment.

3. Where an executor has, by retainer, satisfied his own claim against the estate, the orphans court, in passing his account, has jurisdiction to inquire into the validity of the claim, and the legality of his action in retaining therefor,

Appeal from decree of Monmouth orphans court.

Messrs. Robbins & Hartshorne, for appellant.

Kinnan v. Wight.

Mr. J. Chetwood, for respondent.

THE ORDINARY.

The appeal in this case is from a decree of the orphans court of Monmouth county, upon the final account of James W. Wight, acting executor of his father, Richard Wight, deceased. By the will of the latter, his estate, after the payment of his debts and funeral expenses, was given to his children, Catharine, James, Ann, Mary, Jacob and Margaretta, in equal shares, with substitution of their children in their stead in case they should predecease him, and with limitation over to the testator's surviving children of the share of any of his children who should die, leaving no children, at any time before the provisions of the will should have been carried out. Power was given to the executor to convert the personal estate into cash, and apply it to the payment of the testator's debts and funeral expenses. Also to sell and convey the real property, and apply so much of the proceeds as might be necessary for the purpose, to pay any part

In some states, he is, by statute, required to present his claim and proceed thereon the same as any other creditor, MeLarglin v. Newton, 53 N. H. 581; Flood's Case, 16 Abb. Pr. (N. S.) 407, Smith v. Christopher, 6 T. & C. (N. Y.) 288; Barras v. Barras, 4 Redf. 263; Keller v. Stuck, 4 Redf. 294; Underhill v. Newburger, 4 Redf. 499; Gardner's Case, 5 Redf. 14; Burnett v. Noble, 5 Redf. 69; Kearney v. McKeon, 85 N. Y. 136; Williamson v. Anthony, 47 Mo. 299; Wright v. Wright, 72 Ind. 149; Crosby's Estate, 55 Cal. 574; Abbe v. Norcott, 8 N. H. 51; Tuttle v. Robinson, 33 N. H. 104; Watson v. Watson, 58 Md. 442. See Chidester v. Chidester, 42 Ind. 469.

After his resignation, an administrator occupies the same position towards the estate as any other creditor, Smith v. North, 13 Jur. 998; Fort v. Battle, 13 Sm. & Marsh. 133; Smith v. Watkins, 8 Humph. 331; but see Prentice v, Dehon, 10 Allen 353. He may retain after revocation of his letters, Blackborough v. Davis, 1 Salk. 38. His assignee may proceed as any other creditor, Nelson v. Stollenwerck, 60 Ala. 140; Snyder v. Snyder, 96 N. Y. 88; see Lowe v. Peskett, 16 С. В. 500; Chavez v. Schmidt, 2 C. E. Gr. 257; Morrison v. Page, 9 Dana 428. He cannot assign his individual claim to himself as executor, Schreyer v. Holbarrow, 26 Hun 468; nor confess judgment for the amount of his claim to one to whom the decedent owed nothing, Bonistiel v. McMaster, 6 U. C. Q. B. (O. S.) 32; Hubbard v. Hubbard, 16 Ind. 25. See, also, Phillips's Case, 6 N. J. L. J. 371; 17 Am. Law Rev. 514. -REP.