In re the Account of Allen

40 N.J. Eq. 181

• Court: New Jersey Superior Court Appellate Division
• Decided: May 15, 1885
• Status: Published

Opinion

The Ordinary.

The guardian excepts to the master’s report because it disallows charges for costs of foreclosure proceedings upon a certain mortgage, and sheriff’s fees on the sale of the mortgaged premises under the execution issued in those proceedings, which costs and fees the guardian has paid, and for which she claims allowance in her account. She also excepts because the master has disallowed so much of the charges for counsel fees paid by the-guardian in the litigation, over the award of the letters of guardianship, as is in excess of the amount allowed to her by the decree of this court in that matter.

As to the first exception. The charge for the costs and sheriff*^ fees in the foreclosure suit is not a proper one. The guardian was administratrix of her late husband, the infant’s, father, who died intestate, leaving but the one child, who, with the widow, was entitled to the personal estate. The intestate, in his lifetime, assigned to a trustee a mortgage to secure the payment of an annuity. After the intestate’s death the trustee-foreclosed the mortgage, and the property was sold under the execution. The person who owned the equity of redemption took the title under the sheriff’s sale, in pursuance of an arrangement between him and the administratrix, and gave her a mortgage upon the property for the amount due upon the execution and the execution fees (she agreeing to pay and actually paying the costs and execution fees) and the amount of a loan of money by her to him, to enable him to make improvements upon the property. She, in her account as administratrix, charged herself with the amount of the latter mortgage, but omitted to-claim allowance therein for the foreclosure costs and execution fees paid by her. Obviously, those costs and fees are not a proper charge against the infant in this account.

As to the other exception. This court made allowance by its. decree for the costs and counsel fees of both sides in the litigation as to the letters of guardianship. That award is conclusive as.to the amount of counsel fees to be charged against the estate of the infant in that matter. The exceptions will be overruled, and the report confirmed. The account will be corrected in accordance with the report.