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HuRLBTTT et at. V. Htttton et at.
(Court of Chancery of New Jersey. October 3, 1888.)


VThere a teetator, by his will, directs that certain debts, for which the testator is
seoondarily responsible, and which are secured by mortgage npon lands of the
original debtor, shall be paid, and that the mortgages shall be oharaed to a specified
share in the distribution of his estate, the ezeoutors will not be aUowed credit for
the payment of the debts until they secure assignments of the mortgages, and are
in position to charge themselves with those mortgages for the purposes of dis-

8. Same-^Judoxents Collusivbly Sutfebed.

Where allowance is asked for the payment of a judgment, and exceptants desire

to object to the allowance, becsjuse the judgment was fraudulently and collusively
suffered by the accountants to be procured, their exception should specify ftusti
trom which fraud or collusion may be inferred.

V.15A.D0.9 — 27

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8* Sakb.

If executors, in bad faith, allow a Judgment to be recovered against the estate

* > they represent, for the purpose of unduly charging it, they will not be allowed cred it
for the payment of the juagment in their account.

4. Same— Attornbtb* Fees.

Executors are entitled to the advice and services of counsel and attorneys, in
matters where it is necessary to invoke tL^ir professional skill, and to reasonable
payments as compensation therefor, but they will not be allowed such payments
lor work that does not require that skill and which they might themselves ao. If,
without prudent scrutiny, executors pay extravagant bills for legal services, they
will not be allowed, upon their accounting, more than would have been reasonable
compensation for those services.

(Syllalms by the CowrU)

On exceptions to master's report.

Cortlandt Parker and Edward H. Landon, for executors. TTiomas N".
McCartert for Charles Gordon Button, Adele, Marquise de Portes, Anna»
Countess de Moltke-Huitfeldt, Marquis de Portes, and Comte de Portes.
Benjamin WiUiam$on, for Adele, Marquise de Portes. Frederick Fre-
linghuysen, for Marquis de Portes and Comte de Portes.

McGiLL, Ch. The exceptions to be considered are to the master's report
upon an account of the executors of the will of Benjamin H. Hutton, de-
ceased. The first exception is to the allowance of a payment of $38,254, al-
leged to have been made to H. Sieber & Co., of Paris, on December 31, 1884.
This payment is disputed on three grounds. The first of these grounds is
that the moneys paid were not a debt of the testator, and therefore should
not be charged against his estate. By reference to letters of the testator in
the years 1875 iind 1876, to Messrs. Seydoux, Sieber & Co., a firm of manufact-
urers in Paris, it appears that two mortgages for 100,000 francs each, upon
estates of the Marquis de Portes, (to whom the testator's daughter Adele was
married,)were held by that firm, and that Mr. Hutton had bound himself to their
payment. The testator's books of account verify the statements of his letters,
and exhibit the indebtedness unsettled at his death. It appears, also, that tlie
testator had an account with this firm which he termed ** account current."
To this account the semi-annual interest upon the mortgages was debited.
Statements of this account were rendered at stated periods, and settled be-
tween Mr. Hotton and his French correspondents. The mortgages, and the
testator's guaranty of them, antedate his will, which was made on June 1,
1868. By his will, Mr. Hutton recognized his obligation to Messrs. Seydoux,
Sieber & Co., and made the following provisions: "I have heretofore become
responsible for certain sums of money loaned to the Marquis de Portes, (hus-
band of my daughter Adele,) by Auguste Seydoux, Sieber & Company, on his
estates of Portes, or in or near Mire Poix, France; and as I may make further
loans and advances on said estate, or may purchase the same, it is my will
that the whole of such loans, advances, or purchase money shall form part and
be deducted from the share or interest of my daughter Adele in and to my
residuary estate, as provided for, as before mentioned; and that the same, and
the securities taken upon such loans, be assigned and transferred to her as
and for her sole and separate estate aforesaid, and be subject in all things to
the provisions of my will in respect to her said share. In the event of my
purchasing or becoming the possessor of the said estate of Portes, in France,
I give and devise the said estate of Portes to my daughter if she survives me;
if not, to her issue by the said Marquis de Portes. If my daughter Adele
shall not survive me, or shall die without issue, then the said estate of Portes
shall go to my issue and their heirs; or if there shall, at the time of her death,
be no issue of mine living, then to my next of kin, in equal shares, per stirpes,^
After the will was made, on July 28, 1874, the Marquis de Portes executed,
in favor of Mr. Hutton, an instrument known to the French law as an anti-
chresis, the legal effect of which was to put him in the possession of the estate

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N. J.] flUBLBUT V. BUTTON. il&

de Portes, (which consisted of about 3,200 acres of land, upon which were
farms, mills, and other establishments for revenue,) with the right to receive
its rents, issues, and profits, but subject to the duty of paying from the in-
come all governmental impositions on the estate, and the interest upon incum-
brances, the expense of keeping improvements in repair, and of maintaining
insurance thereon. The surplus revenue was to be applied, first, to the pay-
ment of the interest upon the principal moneys advanced upon the antichresis^
and then to the reduction of that principal. The moneys secured to be repaid
by the antichresis were 280,000 francs, loaned by Mr. Button to the Mar-
quis de Portes, and such moneys as should be appropriated by Mr. Hutton to
the betterment and setting in good order of the estate of de Portes, from a
maximum credit of 160,000 francs thereby opened by him in favor of his son-
in-law. The moneys of the credit account were to pass through the hands of
Messrs. Seydoux, Sieber & Co. It appears that out of the 280^000 francs thus
loaned, Mr. Hutton was repaid all the interest that, up to that time, he had
paid to Messrs. Seydoux, Sieber & Co., through his "account current" above
referred to, upon the mortgages that they held against the estate de Portes.
After that time the interest he thus paid was charged to the account of the
antichresis. The moneys advanced upon the antichresis did not pay the prin-
cipal of the mortgages held by Messrs. Seydoux, Sieber & Co. As Mr. Hutton
states in his will, he was responsible for that principal. I think it was the
dnty of the executors to discharge the estate from its liability by paying the
mortgage debts, taking an assignment of the mortgages.

The second ground of objection to the allowance asked is that the execu-
tors have not obtained an assignment of the mortgages for which they have
paid. The will of Mr. Hutton contemplates that the Seydoux, Sieber & Co.
mortgages shall become part of the residue of his estate, and shall be ^por-
tioned to his daughter Adele in the distribution of that residue, and be as-
signed and transferred to her. In Marquis de Portes v. Hurlhut^ 44 N. J.
Eq. — , 14 Atl. Rep. 891, the construction to be given to the clause of the
will which I have quoted was considered by the court of errors and appeals
of this state, and Chief Justice Beasley, who wrote the opinion of the
court, said: "The I'espondents [the executors of the will] must pass to the
appellant [Adele, the Marquise de Portes] securities for all sums of moneys
that they charge against her." I think that, under the will, and, indeed, in
the absence of the will, — because Mr. Hutton's obligation was simply the
guaranty of the secured debt of another, — ^the original security of the debt,
the mortgages, should be transferred to the executors or the Marquise de
Portes before the executors should be given credit for their payment. They
are to form part of the residuary estate, which the executors are to distrib-
nte, and are to'be passed to Madame de Portes in that distribution. The exec-
utors, then, are not in position to be allowed for the payment of the mort-
gages until they can charge themselves with those instruments. As the case
stands, the exception will be allowed.

The second exception is to the allowance asked for the following items of

May 1st, E. S. Dakin, referee in Landon v. Whiting^ - 81,000 00
May 4th, E. H. Landon, Atty. Landon v. Whiting, - $2,108 71

May 4th, J. B. Whiting. Atty. Landon v. Whiting, - $2,066 25

Oct. 28th, C. G- Landon, decree of court, - - $12,000 00"

Charles G. Landon was a brother-in-law and partner of Mr. Hutton, and
is one of the executors of his will. During Mr. Hutton^s absence in Europe,
under a general power of attorney, he managed Mr. Hutton*s affairs, and, in
so doing, collected and disbursed several hundred thousands of dollars. Noth-
ing was said between him and Mr. Hutton about compensation for his serv-
ices. It was embarrassing to his co-executors, Mersrs. Hurlbut and Whit-

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ing, to audit his accounts, and agree with him upon the compensation he
should receive, or to decide that the circumstances of his employment were
such that he was not entitled to pay Consequently a suit was resorted to
for the purpose of having his accounts passed upon by a court, and to settle
the question of compensation. The result of the suit was a judgment against
the executors for the items above stated. From a copy of the decree in that
proceeding it appears that the first three of the items in dispute were allow-
ances, which were made part of the judgment, and that the last item was
the compensation of Mr. Landon, fixed by the judgment. The attorneys
were, respectively, the sons of Charles G. Landon and John N. Whiting, two
of the executors. If it were not for the existence of the judgment referred
to, it would be proper to consider how far the executors were justified in
mulcting Mr. Hutton's estate in so expensive an examination of Mr. Lan-
don's accounts. There had been no dispute concerning them, and there
seems to be no sufficient reason why the executors did not, themselves, ex-
amine them. They are business men, and accustomed to deal with just
such matters. Though their relations to Mr. Landon made tlieir task a deli-
cate one, their duty to the estate would seem to require them to perform it.
But, if the judgment was not suffered to be recovered by the executors or
their agents, in bad faith to the estate, collusively and fraudulently, I must
accord force and credit to it, and allow credit for its payment. The judg-
ment has not been proved. A copy of the final decree, I am informed, has
been used by the master; but it nowhere appears that the judgment rec-
ord has been duly exemplified and ofi'ered in evidence. In this respect, the
accountants' proofs are deficient. The exceptants attack the judgment as
having been recovered fraudulently and collusively, and complain that the
master rejected their offer to so prove. Unfurtunately, their exceptions to
the roaster's report alleged the judgment to be '* fraudulent and collusive, and
therefore void," and their offer to the master seems to have been in the same
general terms. An objection of this kind should specify facts from which
fraud or collusion may be inferred, and not rest upon the general vague and
uncertain language of the exceptions and offer. I think that the offer before
the master, as well as the exceptions, were and are insufficient. There can
be no objection to an inquiry under proper exception, as to the good faith of
the executors to the estate of Mr. Hutton touching this judgment. If it was
the product of bad faith, on their part, they cannot be allowed for its pay-
ment. This is not an inquiry as to the validity of the judgment between Mr.
Landon and the estate. The judgment has been paid, and the executors now
ask credit for their payment of it. If the judgment was not the product of
their bad faith to the estate, they should have the desired credit, but if it was
concocted by them, or with their assent, for the purpose of charging the es-
tate unduly, they should not be allowed the credit they ask. In view of the
deficiency of the accountants' proofs, and of the general and uncertain ob-
jection to the judgment, I think that the question of the allowance of these
items should be referred back to the master. I will direct such reference
back, and order that due proof of the judgment record be made, and that
then the exceptants may file objections in writing to the allowance asked,
which shall fully apprise the accountants of the fraud and collusion which,
they claim, resulted in the procurement of the judgment, and offer proofs to
sustain the charges they may make in their objections. The master will be
directed to return and file all proofs with his report.

The last two exceptions are to the allowance of several payments to law-
yers for services to the executors. The executors are undoubtedly entitled to
the advice and services of counsel and attorneys in matters where it is neces-
sary to invoke their professional skill, and to the allowance of reasonable
payments in the compensation of such gentlemen; but they will not be al-
lowed for payments to attorneys for work that does not require professional

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N. J.] PYATT V. PYATT. 421

akilK and which the executors themselves may as capably do. If execntors,
without prudent scrutiny, pay extravagant bills for legal services, they will
not be allowed, upon their accounting, more than a sum which would have
reasonably compensated for the services. The first of the exceptions now
considered is to the allowance of $1,502.40, paid to lawyers for supervising
the probate of the will and its codicils, in New York and New Jersey. It is
alleged that several hundreds of dollars were paid to other lawyers for assist-
ance in the same work. The second exception is to the allowance of over
$2,000 for procuring a decision of the supreme court of New York, upon the
question whether the two surviving executors of Mr. Button's will may sell
his real estate. The case was agreed upon for the purpose of having that
question settled. I believe the payments excepted to to have been extrava-
gant and excessive, but the testimony taken is insufficient to enable me to
say what would have been reasonable for the services rendered. I will refer
it back to the master to take further testimony, so that it may be determined
what sum would have been reasonable compensation for those services. He
will be directed to return this evidence to the court.

(44 N. J. B. m)

Pyatt v. Pyatt.
(PrerogcOime Cov/rt of New Jersey. September 25, 1888.)


For seven years after her father^s death an infant daughter Uved with her mother
and brothers and sisters npon a farm, in which she ana they each had some right
and estate, and as a 'member of the family. Then the mother was appointed her
Rnardian. Thereafter. untU she became of age, the infant continued to Uve as be-
fore. The mother made no application to a proper court for an allowance for her
maintenance, and kept no account of any expenditures that she may have made for
her ward. Held, that the mother will not, when cited to account, 11 years after the
daughter became of age, be alloweJ for the maintenance of her ward from the time
she was appointed guardian until the ward became of age.


A guardian's account in the orphans' court should dose at the termination of the
guaraianship. The orphans' court has no jurisdiction over accounts of dealings
subsequent to that time.
& Same—Commissions— Delat in Accounting.

Where the guardian fails to account for 12 years after her appointment, and
then does so only in obedience to citation, she will not beoaUowed commissions.
4i Bamb— Attorney's Fees.

A guardian may employ counsel, when such employment is neoessarv to the due
protection or proper management of the estate, and reasonable charges for his serv-
ices wiU be paid out of the estate.
8. Same— Accountant's Fee.

It is the duty of a guardian to keep accounts, and to render an account of her
guardianship at the time required by law. Her commissions compensate her for
this work, and she wiU not be allowed for the expense of an accountant from
the estate.
0, Same- Release and Discharge— Burden of Proof.

In matters of discharge the burden is upon the accountant to satisfy the court that
a disputed item should be aUowed.
7. Same— Accounting— Costs of Citation.

Where a guardian fails to account at the time required by law, and is dted to do
so, she must pay the costs of citation and the proceedings thereon, unless the court
is induced, by substantial reasons, to order otherwise.
{SyUaims lyy the Cawrt)

Appeal from orphans* court, Middlesex county; Gowsnhoven, 0'Gorman»
knd Newton, Judges.

Samuel L. Pyatt died intestate, on January 11, 1868, leaving his widow,
Mary N. Pyatt, and his daughter, Mary E. Pyatt, and three other children
him surviving. He died seized of the farm upon which he had lived with his
wife and children, and possessed of some personal estate. Letters of admin-
istration upon his estate were granted to his widow and her father, Samuel

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D. Kelly. On August 18, 1874, the widow was appointed the guardian of
her daughter, Mary E. Pyatt, by the orphans' court of Middlesex county. On
October 5, 1876, the daughter became of age, and on April 7, 1887, she pe-
titioned the orphans' court of Middlesex county to cite her guardian to ac-
count. Later in the same month, the guardian filed an account in obedience
to the citation, whereby she charged herself with 8537.22, and prayed allow-
ance for 82,093.23. Among the items for which allowance was asked was a
charge of 81*872 for the board and maintenance of the ward from Jan-
uary 1, 1875, to December 31, 1886, at tlie rate of 83 per week, and also
charged for "counsel fee and making account," commissions as guardian,
court and surrogate's fee on the, accounting, and the costs of the citation to
account, and the proceedings thereon, amounting in all to the sum of 868.
The guardian, in disregard of lier duty under the statute, had never before
accounted. After her husband's death she and her children continued to
make the farm their home, and to reside together as one family. The widow's
dower was not assigned to her, and the children did not ask for a division of
tlie property. The mother controlled the management of the farm and of all
money matters, and in all things was the head of the household. The daughter,
Mary, who is the appellant in this matter, lived in the family as a member of
it until January 1, 1887. To the account rendered the appellant filed excep-
tions, by which she objected to the charge for her board and maintenance,
and as well to the allowances asked for costs, commissions, counsel fee, etc.
Robert Adrain, for appellant. /. Kearney Rice^ for respondent.

McGiLL, Ordinary, (after stating the fojcU as above,) I think that the
orphans' court erred in allowing the item, 8lf872, for the maintenance of the
appellant. Of this sum about 8275 is charged for the maintenance during
minority, and the remainder for her maintenance after she became of age.
The allegation is that the entire moneys that came to the guardian's hands,
and other moneys, were expended in the maintenance of the household, of
which the appellant was a member. The expenditures for the appellant's sole
benefit are not and cannot be specified. The guardian failed to keep any ac-
counts, and all that she can say with reference to the moneys that were in-
^ trusted to her is that they, with all other moneys within her control, were ex-
pended in maintaining the household from 1874 to 1887. 1 consider this item
first with reference to that part of it which is charged against the appellant
as an infant, and then with reference to that part of it which is charged against
her as a person of full age. For seven years after her father's death the ap-
pellant resided in the family presided ovei" by her mother, and there is no pre-
tense that any compensation was expected for her maintenance, nor is any
now claimed, for that time. Her mother then became her guardian, but there
was no change in the manner of living. No application was made to a court
for the allowance of maintenance out of the infant's estate. Neither, indeed,
does it definitely appear that any of the ward's money was expended during
her infancy, nor that the support she received came from her mother. 1 fait
to perceive how an allowance for support during that time can be intelligently
made. I think that during the infancy the appellant and the appellee must be
regarded as standing in the relation of members of one family, in which the
mother cared for her child without expectation of compensation. Haggerty
Y. McCanna, 25 N. J. Eq. 52; Schaedel v. JRiebolt, 33 N. J. Eq. 534; Dis-
senger^s Case, 39 N. J. Eq. 229. The accounting in question should not treat
of the moneys charged against the appellant for board and maintenance after
she became of age. The account should be closed at the termination of the
guardianship, and the balance ascertained and decreed as of that date. The
orphans' court has no jurisdiction to take an account of tlie subsequent deal-
ings between the parties. The testimony strongly indicates that, after the
appellant became of full age, there was a tacit understanding between her

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I^a.] EBY 0. ELDXR. 423

and her mother, evidenced by her acquiescence in the mother's disposition of
her money, that the moneys were to be used for the living expenses of the
family, and tliat, to the extent of them, she was to compensate her mother for
her maintenance. But that question is not to be determined upon this appeal.
These views lead me to the opinion that the item, $1,872, for board and main-
tenance of the appellant, should have been disallowed.

The second objection is to the allowance of commissions and counsel fee to
the guardian, and the costs of the accounting and of the citation to account.
In IHssengefs Case, 39 N. J. Eq. 227, the guardian, upon being cited, ac-
counted five years after he had received the last moneys for his ward, and then
nearly fifteen years had elapsed since his appointment as guardian. This court
refused to allow him commissions, because of his unlawful delay in account'
ing. In this case, upon being cited, the guardian accounts nearly 13 years
after her appointment, and after the receipt of the last moneys for her ward.
Upon the authority of the Dissenger Case, she should not be allowed commis-
sions. The charge for counsel fee is in the following language: "Counsel fee
and making account, S16." It appears to be for two services to the guardian,
— ^legai advice and the preparation of an account. It is not explained in the
testimony taken upon the exceptions, and therefore I am unable to say, how
much of it is intended to cover the fee of counsel, and how much of it was
required to pay for the preparation of the account. Nor can I determine
whether the advice of counsel was necessary to the proper management of the
ward's estate. A guardian may employ counsel when such employment is^
necessary to the due protection or proper management of the estate, and rea-
sonable charges for his services will be paid out of the estate. Woife^a Case,
34 N.. J. Eq. 223; Kingsland v. Soudder, 36 N. J. Eq. 284. But it is the
duty of the guardian herself to keep the accounts of the estate, and to render
an account of her guardianship at the time required by law. Her commis-
sions compensate her for this work. If she employs another to do it in her
stead, she must pay that person from her private purse. Id. It is obvious that
part of this item should be disallowed, and that the other part of it may not
be properly chargeable against the estate. In matters of discharge, such as
this, the burden is upon the accountant to satisfy the court that the disputed
item should be allowed. Kii'by v. Coles' JEx'r, 15 N. J. Law, 441. There is

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