Duncan v. Davison ( 1885 )

The Ordinary.

Abraham Y. N. Yoorhees, late of Middlesex county, died in 1863. He left a will, which was proved by the three executors, who were his father, Garret G. Yoorhees, his widow, Eosetta Yoorhees, and Gilbert S. Davison, his uncle. By the will, which was proved September 11th, 1863, he-directed his executors to sell his real estate and turn his personal property into money and from the money arising from such conversion- of his real and personal property, first, to pay his debts and funeral expenses. Second, to pay to his widow $2,000. Third, to invest and secure, by good and sufficient bond and mortgage, the sum of $4,000 for the benefit of his widow for life, with remainder to his adopted daughter, Annie Voorhees, his sister, Joanna Duncan, and his brother, Uriah D. Voorhees. Fourth, to invest well and sufficiently, upon bond and mortgage, $1,000 for the benefit of his adopted daughter. Fifth, to invest the like sum for his sister Joanna, for life, with remainder to her children. Sixth, to invest $1,000 for the benefit of his brother Uriah, for life, with remainder to Uriah’s children. Seventh, to pay his father $700 for his own use. Eighth, to pay his father for his (the testator’s) half-sister Sophia, $100. Ninth, to pay to his father the like sum for another half-sister, Margaret. Tenth, to pay him the like sum for another half-sister, Angella. Whatever balance of his estate should remain was to be disposed of as provided in the third section. He then added that if his estate should prove insufficient for all the payments and investments,he directed his executors to follow strictly the directions of the will nevertheless, in the order therein above stated, without diminution of the sums mentioned, until the estate should be exhausted. By a codicil he gave specific legacies to his wife and others. The three executors filed the inventory. It amounted to $15,637.56. They sold the real estate for $5,000. Part of the property inventoried was the testator’s interest in a partnership. The members of the firm were his father (Garret G. Voorhees) and himself, and they, up to his death, carried on the clothing business in the city of New Brunswick. His father continued to carry it on alone afterwards. In 1867, Garret G. Voorhees accounted alone, and he never accounted afterwards. The other two executors have never accounted except by the accounts brought up by these appeals.

By his account Garret G. Voorhees was charged with the amount of the inventory, $15,637.56, the excess of the sales of property inventoried over the appraisement, $92.46 ; the amount received for the real estate, $5,000; the amount of an error in appraising four notes, $1,750, and interest received on notes beyond the amount of interest as appraised, $87.11 — altogether, $22,567.13.

He was allowed, among other things, the specific legacies, •.the legacy of $2,000 to the widow, the trust fund of $4,000 for her benefit, and the fund of $1,000 for the benefit of the testator’s adopted daughter. The account as passed showed a balance against him of $1,937.66. He was allowed commissions as executor on the whole amount of the inventory. In or about the latter part of the year 1874, he paid to the guardian of Uriah D. Voorhees’s children the legacy of $1,000, given to Uriah for life. Uriah D. Voorhees was then dead. He died in 1870. Garret G. Voorhees never paid the legacy to Mrs. Duncan. He .paid her various sums (altogether $775) for interest upon it (the payments ran from November 1st, 1869, to November 17th, 1880), but he paid nothing more. He died .about February, 1882, insolvent. He never invested Mrs. Duncan’s legacy nor paid it, nor any part of it, over to the other executors or either of them. In or about 1881, Mrs. Duncan cited him and the two other executors to account. The latter accounted separately in that year. The widow, in her account, charged herself with the legacy of $1,000, given by the fourth section of the will and the legacy of $4,000, given by the third, .and prayed allowance for the former and for $1,750 expended of the latter (the executors were empowered by the will to pay .her portions of the principal from time to time for her support, of the necessity for which payments she was to be the judge) for certain counsel fees and costs of the accounting, and the amount due on securities, in which the balance of the $4,000 was invested. Mr. Davison filed no formal account, but only an affidavit stating that he had never received or had any part of the estate. Mrs. Duncan excepted to the widow’s account and Mr. Davison’s affidavit, on the ground that the accountants had not charged themselves with the amount due her for her legacy. 'The exceptions were overruled, and the accounts passed. She appealed.

The evidence shows that Garret G. Voorhees received all the estate. Out of the receipts he appears to have paid the debts :and those of the legacies for which he claimed allowance in his ;account, and the legacy to Uriah D. Voorhees’s children. The widow of the testator received nothing except the amount of the legacies in her favor, which was paic^L over to her by him as and for those legacies. Mr. Davison never received anything except $10 or $11, the price of articles bought by him at thevendue, which money he at once paid over to Garret G. Voorhees. The latter, in 1867, accounted for the entire estate, as having been received by him alone, and his account was passed,, charging him with it accordingly. "What the widow received from him was, as already stated, paid to and received by her as legatee. Garret G. Voorhees, having alone received and separately accounted for the entire estate, his co-executors are not liable to be called to account for it or any part of it. It is settled law that, as a general rule, executors are not liable beyond the amount which has come, or ought to have come, to their hands; and where there are two or more executors, each has a several right to receive the assets and to discharge debts-due the estate, and is responsible only for such of the assets as-he receives. In this case, Garret G. Voorhees took possession, of all the assets, and the other two executors received no part thereof. It is urged, however, that he wasted part of the estate,, and that it was the duty of his co-executors to protect it against such waste, by requiring him to invest it, but .that they did not do so; and it is insisted that, therefore, they' should be charged with the money so wasted. While such negligence on their part,, if established, may be good ground for charging them in a court of equity, it is not good ground for charging them in the-orphans court with money which it is shown clearly never came to their hands, but which came to the hands of their co-executor. The balance remaining in the hands of Garret G. Voorhees, upon his account, was $1,937.66, and the value of the testator’s interest in the partnership of G. G. Voorhees & Son was, according to that account, $2,678.01.

The orphans court was right in overruling the exceptions.. The decrees appealed' from will be affirmed, with costs.