Runkle v. Gale

7 N.J. Eq. 101

• Court: New Jersey Superior Court Appellate Division
• Decided: March 15, 1848
• Status: Published

Opinion

The Ordinary.

The mistakes on account of which Runlde applied to the Orphans’ Court to open the account wore mistakes against him on the face of the account; one being a misfooting of a column, and the other a miscalculation of interest. It appears from the testimony that these mistakes were not discovered by Runlde until 1846, after the giving of the release from him to Gale. Gale did not set up the release in opposition to the application to the Orphans’ Court to open the accounts; nor did ho appeal from that order. When he was called on to correct these errors, he refused, and said the court should settle it; and he would charge commissions. It is not necessary, therefore, to inquire whether the release would have prevented the opening of the account. It appears from the testimony that Gale stated the first account himself ; and the account, as stated by him, was passed by the court, without being particularly examinbd either by the Surrogate or the court; but the statement at the foot of the account in reference to commissions was appended at the suggestion of the Surrogate. This account was thus passed by the court on the day Runlde came of age.

The question is, were the Orphans’ Court right, the accounts having been opened for the correction of such mistakes, to allow commissions to the guardian on the re-statement of the accounts. I think not. If the guardian did not actually receive the §1,000 commissions mentioned in the memorandum at the foot of the first account, it must be that he waived commissions. He cannot now, as an offset against errors in figures, in. his favor, on the face of the account, recall that waiver and charge commissions. The surmise that he knew of these mistakes, and therefore waived commissions, would not relieve him, but would convict him of fraud.

It was said by counsel for the accountant that an allowance for commissions is not a subject of appeal. That question does not arise in this case. The subject of this appeal is, that the Orphans’ Court, on re-stating an account which was opened for the correction of mistakes against the ward, in figures, apparent on the face of the account, allowed to the guardian commissions which, if he had -not received on the settlement of the first account, he had then waived. The commissions will be struck out of the re-stated account. The counsel fees allowed to the guardian in the re-stated account will also be struck out. This will throw the balance of the account against the guardian; and the costs will follow the result.

The account will be ordered to be re-stated by the Register of this Court, in accordance with these views.

Order accordingly.