Huston v. Roe ( 1911 )

Per Curiam.

We agree with the result reached in this case by the orphans court and with the decree of affirmance by the ordinary, except in a single particular. The disallowance of the accountant of the item of $114.23 we think was wrong.

This amount represents one-third of the milk receipt for which the accountant claimed allowance. The accountant’s intestate had thirty-five head of cattle which came to the hands of her administrator at her death, which had to be fed and cared for, and his only means to this end was the farm. A receiver for the farm premises was appointed by an order providing that he “should take charge of the mortgaged premises, manage the same and cut and gather and harvest the corn, buckwheat and hops now (then) growing, and to take charge and possession of the crops therein mentioned and sell the same under direction of this court.”

This amount, one-third of the milk receipts) the accountant claims to have paid to the receiver as rent for the pasture of decedent’s cows.

By the terms of a lease, the tenant was entitled to another third and to have the cows remain as against Mrs. Eoe until the following April. We, therefore, deem this a reasonable and proper arrangement for the accountant to make, in order to sustain and care for the cattle, and it resulted in a benefit to the estate. The item .should be allowed to the appellant as a credit in his account.

The decree will therefore be reversed and the record and proceedings be remitted to the prerogative court to the end that the decree may be modified, by allowing to the accountant credit for this expenditure.

This disposition of the case being a substantial affirmance, costs in this court will not be allowed to the appellant.

For affirmance—None. For reversal—The Chief-Justice, Garrison, Trenchard, Parker, Bergen, Yoorhees, Kalisci-i, Bogert, Yrtsdenburgh, Congdon, White—11.