Executors and Administrators-Continued.
liable to the estate for the full amount of the loss. Sherman v.
Lanier,
4. A trustee invested $10,000 of the estate in a mortgage on lands
then worth $20,000. The lands were subject to a municipal as-
sessment of $9,000, which was afterwards paid by the mortgagor,
then a man of large means; he subsequently became insolvent,
and she took from him a deed for the land, and delivered his
bond to him. The assessment was afterwards set aside, the
amount refunded to him, and the premises re-assessed, in her
hands, for $2,600. After her removal as trustee, she, under the
order of the orphans court, conveyed the premises to her succes-
sor.-Held, that as no actual loss had been sustained by the estate,
she could not be charged with the $10,000, on the ground that
the investment, when made, was, in fact (considering the assess-
ment as a first lien), a second mortgage; and further, that the
orphans court, while it could remove her for failure to give bond
after her remarriage, had no power to order her successor to re-
convey the premises to her on her paying the $10,000, or to order
him to sell the premises, and credit her with the net proceeds,
the remedy, in a proper case, being in chancery; besides, if the
property should eventually prove to be worth more than the in-
vestment, the cestuis que trust would be entitled to the benefit of
it. Nor, if it were conceded, would the fact that she personally
received a large bonus for making the investment, of itself, estab-
lish bad faith on her part in making the loan, although, if shown,
she would be accountable to the estate for the bonus. She should
be required to pay costs in the orphans court only on those of
her exceptions to the master's report which were not sustained.
Id.,
5. Where executors were not chargeable with the deficiencies arising
from the foreclosure and sale of premises under mortgages belong-
ing to the estate, they were allowed therefor in their final ac-
count, they having been charged with the full amount of those
mortgages in their first account. Dey v. Codman,
6. Held, also, that they were not chargeable with the amount of a
mortgage which was satisfied during their testator's lifetime, but
canceled of record by them after his death. Id.,
7. They were allowed for taxes paid and for repairs and improve-
ments made on the testator's homestead after his widow ceased
to reside therein. By the terms of the will, the executors held
it in trust for her and her daughters to live there while they
were unmarried, for their natural lives, with a provision that
they might sell in certain contingencies, which power was not
exercised until ten years after the widow's death.-Held, also,
that the widow should have paid the taxes and costs of repairs
and improvements while occupying it, and also after she ceased
to occupy it, but received the rents therefrom. Id.,
Executors and Administrators-Continued.
8. They were allowed for traveling expenses actually incurred and
paid by them, and also the amount of a salary paid to an agent
employed by them about the business of the estate, such amount
having been taken into consideration in fixing their commissions.
1d.,
9. They were allowed for payments of certain municipal assessments
levied on lands of the estate, although the statute under which
similar assessments were laid was afterwards declared by the
courts to be unconstitutional; and also for other municipal
assessments subsequently paid by them in good faith and with
discretion. Id.,
10. They were held not liable for refusing an offer of $30,000 for
certain lots of the estate which had been valued by a reputable
local expert at $95,000, and shortly afterwards, at their request,
with a view to fixing a price which would invite buyers, at
$65,000, although the lots were afterwards, in order to close the
estate and to pay certain assessments thereon which the estate
had no funds in hand to pay, bought in at public sale for $1,470,
under an agreement by all those interested (including the ex-
ecutors) except the appeliant, whose interest is one thirty-second
part. The agreement was to sell for the best price obtainable,
and if one R. should buy he should hold the lands in trust, to
be divided among the parties. The sale was extensively adver-
tised and R. was the successful bidder, and the lots were divided
accordingly. The value of all lands greatly depreciated by the
panic of 1873, after the $30,000 were offered for the lots.-Held,
also, that they were not liable for a loss sustained on a sale of the
homestead through the same causes, its value being also affected
by the existence of the testator's surviving daughters' contingent
right to occupy it. Id.,
11. They were allowed for the payment of a commission of $300 to a
broker who secured a purchaser for them of part of the testator's
lands for $15,000. Id.,
12. They were held not liable for the non-collection of deficiencies on
the sale of mortgaged lands, there being no proof that those de-
ficiencies could in any case have been collected. Id.,
13. They were allowed for counsel fees paid, where the services ap-
peared to have been necessary and probably rendered. The
question for the allowance for some of those professional services
had been considered by the orphans court, when a former account
was passed, and they were then allowed, Id.,
14. The entire amount of the cash on hand at the settlement of the
first account was charged to them in the second account as cash
on hand, without deducting therefrom the amount of the com-
missions due them as fixed by the court, and also the surrogate's
Executors and Administrators-Continued.
fees on the first account. The second account was rectified by
making those deductions. Id.,
15. A testator gave to his housekeeper $1,000, absolutely, and the in-
terest on $8,000 during her lifetime. She had occupied the posi-
tion 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 testa-
mentary gifts to her were not in satisfaction of her claim for ser-
vices, and that a mere notice, given by the residuary legatees to
the executors not to pay her claim, was not sufficient to prevent
the executors from compromising it. Rogers v. Hand,
16. A commission of three and a half per cent. on $289,000 was ap-
proved, 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. Id.,
17. The orphans court has the power to open a decree settling an in-
termediate account of trustees, in which it appears that commis-
sions were allowed in excess of the sum fixed by the statute.
Jackson v. Reynolds,
18. Executors' reasonable expenses of a suit in this court for the con-
struction of a will, allowed, but not those in the court of appeals
in the same case, the appeal therein having been taken by them,
and being deemed unnecessary under the circumstances. Beatty v.
Trustees,
19. Executors, who instituted proceedings to be relieved from the
amount charged against them in their final account, and who
were refused relief therefrom, held liable to pay the costs of the
suit, although they also asked incidentally for a construction of
the will by the same bill. Id.,
20. 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 daugh-
ters' 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. Baker v. Johnston,
21. 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. Kinman v. Wight,
Executors and Administrators-Continued.
22. Administrators held to account for lambs, the produce of sheep
belonging to the estate, born after the intestate's death, and for
the wool shorn from the sheep after his death, and also for the
net proceeds of the sale of milk from his cows. Merchant's Case, 506
See ACCIDENT, 3; ESTOPPEL, 4; EVIDENCE, 1; JURISDICTION, 3;
SALE, 4.
1. Where a contract is made by parties holding confidential relations
(a husband and wife), so that it is probable that they did not
deal on terms of equality, but that unfair advantage might have
been taken by the stronger party of the weaker, there the burden,
if the contract is assailed, rests on the stronger party to show
that no advantage was taken, otherwise fraud will be presumed.
Farmer v. Farmer,
2. A false representation, to be the proper subject of judicial action
or cognizance, must be the cause of legal wrong or injury, and
such cannot be the effect of a false representation made to a
person who knows it to be false. Parker v. Hayes,
3. If an infant, being entitled to a sum of money on attaining
twenty-one years of age, induces his trustee to pay it to him in
advance of that time by fraudulently representing himself to be
older than he is in fact, he will, in equity, be bound by the pay-
ment, but only to the extent of the payment actually made. If
the trustee induces the infant to release the whole, on paying
only a part of what is due him, the release will only be held
good to the extent of the payment made. Id.,
4. When stipulations are kept out of a contract by fraud, such con-
tract will be reformed in equity, and specifically performed.
Cubberly v. Cubberly,
See ACCIDENT, 1; AGENCY; PLEADING; SALE.
When a debtor made a conveyance, fraudulent as to creditors, to his
son, taking from him at the same time a mortgage to secure
certain trust-moneys in his hands, a court of equity, in setting
aside such conveyance on a creditor's bill, will validate the
mortgage in behalf of the cestuis que trust. First National Bank
of Clinton v. Cummins,
Guardian and Ward-Continued.
guardian to sell some of her lands in July, 1865, and he gave
sureties in each capacity. He sold those lands, but never ren-
dered any account of the proceeds, nor of his disposition thereof,
after his report of the investment thereof, made soon after they
came to his hands, and never filed any account as general or
special guardian. His ward, who was born in 1863, always
lived with him thereafter. He died insolvent in 1881. On
exceptions to a master's report as to the allowances to and
charges by the guardian, and as to his sureties' respective lia-
bilities-Held, that the cost of furniture purchased for and used
by the ward should be allowed; that the time when she was
absent from his house during her school vacation should be
deducted from his charge for board; that he should be charged
with the amount of rent he would have received from the ward's
house if he had kept it in tenantable condition; that the report
of the sale (not carried out) of that property, signed by him,
although never filed, was competent evidence as to the terms &c.
of that sale to charge him with rent for the property; that he
should be charged with interest annually on the amounts
originally received by him as general guardian, and interest on
the rents, but the proceeds of the sale of the lands should not be
included therein, nor the interest on those proceeds, because, for
them, his sureties as special guardian are solely responsible,
since he never obtained any direction from the court to transfer
those proceeds to his account as general guardian. The proper
credits for board, clothing, pin-money, wages of a nurse, and for
taxes, under the circumstances, fixed.-Held, also, that the special
guardianship fund is entitled to no part of the allowance for
board, clothing &c., unless the amount of those allowances should
prove greater than the debits of the general account, in which
event the excess should be credited on the account of the special
guardianship. Smith v. Gummere,
2. A guardian received pension-money quarter-yearly for nine years
on account of his ward. He never filed any account from the
time of his appointment, fifteen years ago, until cited.-Held,
that although there was no evidence that he had used the
money, he must pay interest on the pension-money, with annual
rests; that he was not entitled to commissions, nor to any allow-
ance for the maintenance of the ward (whose mother he married
when the ward was four years old) while the ward continued to
live in his family and until the mother's death, but that he
should be allowed for board paid to third persons thereafter.
Dissinger's Case,
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