Stevenson v. Hart

7 N.J. Eq. 471

• Court: New Jersey Superior Court Appellate Division
• Decided: March 15, 1849
• Status: Published

Opinion

The Ordinary.

The statement of the Surrogate, at the foot of the account ro-stated by him, is a credit to the accountants, in another form, of the bond and mortgage for $2,000 ordered by the Orphans’ Court to be struck from the credit side of the account; and it shows that this bond and mortgage must have been charged to the accountants in the inventory, and that they were, therefore, entitled to credit for it. But the order or decree of the Orphans’ Court was, that the accountants, ought not to have credit; and it was on that ground that the accounts were ordered to be opened.

Again, Stevenson, in his account book, charged himself with having received from Charles Welling $2,979 00, and credits himself with having paid to Mary Hart $1,500 and other sums, and to Elizabeth Hart several sums of money.

The decree of the Orphans’ Court will be reversed ; and an order will be made that the accounts be settled in this Court.

This case does not raise the question whether the Orphans’ Court can properly open the accounts of executors simply to readjust commissions, or the question whether this Court will entertain an appeal on the simple question of the amount of commissions, or of their apportionment between or among the executors.

In this case the Orphans’ Court opened the accounts upon an allegation of fraud or mistake in a credit to the accountants of the said $2,000; and when that Court determined to strike out that credit on the ground, as it was determined, that the said $2,000 did not belong to the estate, they reduced the commissions. If, on appeal to this Court, it be determined that the $2,000 is a part of the estate to be accounted for by the accountants, and that the Orphans’ Court were wrong in striking it out, it would follow, I think, as incidental, that this Court would say they were wrong in reducing the commissions. If by fraud or mistake in the account the sum on which commissions are allowed is wrong, and by the correction of the fraud or mistake on the opening of the account for that purpose that sum is varied, either by the Orphans’ Court, or by this Court, on appeal, the commissions may also be varied, so far as the amount of the estate should in the particular case govern the amount of the commissions. This would be, but a consequence of the variation of the snm on which commissions should be allowed.

Decree reversed.