O'Donnell v. McCann

New Jersey Superior Court App Division

O'Donnell v. McCann

68 A. 752, 73 N.J. Eq. 640, 3 Buchanan 640, 1908 N.J. Prerog. Ct. LEXIS 16

CourtNew Jersey Superior Court Appellate Division

DecidedJanuary 6, 1908

StatusPublished

This text of 68 A. 752 (O'Donnell v. McCann) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Donnell v. McCann, 68 A. 752, 73 N.J. Eq. 640, 3 Buchanan 640, 1908 N.J. Prerog. Ct. LEXIS 16 (N.J. Ct. App. 1908).

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Opinion

Magie, Ordinary.

The single question presented by this appeal is whether the orphans court was correct in sustaining an exception to a claim of allowance in the final account of Roñal McCann, the administrator, and appellant. By the account, the administrator claimed an allowance for a payment made to one Catherine McCann for board of deceased, amounting to $555.94. This claim was excepted to. On the trial of the exceptions it appeared that Catherine McCann, to whom the administrator claimed to have paid this sum, was the administrator’s wife; that the administrator lived with his wife and maintained the family; that the testatrix lived in the family, and that the sum claimed for board arose upon a contract implied from these circumstances.

[641]*641The implied contract thus arising was a contract to pay the husband, the head of the family. There was no contract made by the testatrix with the wife for any services rendered. The testatrix left a legacy to the wife and a daughter for such services. The board was evidently to be paid to the head of the family. An obligation to pay the board to the wife did not arise because the husband told the wife she might have the money. If the testatrix knew of that fact, perhaps a different conclusion might be drawn, but in the absence of any proof of such knowledge, the wife had no claim upon the deceased.

The orphans court was right in maintaining the exception and striking this item from the account.

Other exceptions were presented which were not considered in the orphans court, because by sustaining the first exception, above dealt with, they were rendered of no consequence. If the orphans court erroneously sustained that exception, then the other exceptions ought to have been sustained. They questioned the payment of legacies in full out of the residue of the estate, which was insufficient to satisfy all the legacies. Manifestly this was erroneous, as legacies should abate when the estate is insufficient to satisfy the whole of them.

The decree of the orphans court must be affirmed.

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Magie, Ordinary.

The single question presented by this appeal is whether the orphans court was correct in sustaining an exception to a claim of allowance in the final account of Roñal McCann, the administrator, and appellant. By the account, the administrator claimed an allowance for a payment made to one Catherine McCann for board of deceased, amounting to $555.94. This claim was excepted to. On the trial of the exceptions it appeared that Catherine McCann, to whom the administrator claimed to have paid this sum, was the administrator’s wife; that the administrator lived with his wife and maintained the family; that the testatrix lived in the family, and that the sum claimed for board arose upon a contract implied from these circumstances.

[641]*641The implied contract thus arising was a contract to pay the husband, the head of the family. There was no contract made by the testatrix with the wife for any services rendered. The testatrix left a legacy to the wife and a daughter for such services. The board was evidently to be paid to the head of the family. An obligation to pay the board to the wife did not arise because the husband told the wife she might have the money. If the testatrix knew of that fact, perhaps a different conclusion might be drawn, but in the absence of any proof of such knowledge, the wife had no claim upon the deceased.

The orphans court was right in maintaining the exception and striking this item from the account.

Other exceptions were presented which were not considered in the orphans court, because by sustaining the first exception, above dealt with, they were rendered of no consequence. If the orphans court erroneously sustained that exception, then the other exceptions ought to have been sustained. They questioned the payment of legacies in full out of the residue of the estate, which was insufficient to satisfy all the legacies. Manifestly this was erroneous, as legacies should abate when the estate is insufficient to satisfy the whole of them.

The decree of the orphans court must be affirmed.

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Bluebook (online)

68 A. 752, 73 N.J. Eq. 640, 3 Buchanan 640, 1908 N.J. Prerog. Ct. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odonnell-v-mccann-njsuperctappdiv-1908.