Summary
denying commission where there has been a delay, negligence, and expense in the estate's management and settlement
Summary of this case from In re Estate of HaukeOpinion
01-20-1888
In re WORDELL.
Robert Adrian, for exceptant. Woodbridge, Strong & Sons, contra.
Petition by surety to review account. On exceptions to master's report.
On May 9, 1867, Hannah Ann Wordell was appointed guardian of William H. Berkholm, an infant, and given power to sell lands which said ward held in fee-simple, subject to Mrs. Wordell's right of dower, she being his mother. On the fifteenth day of February, 1868, Mrs. Wordell filed her report of the sale, in which she states she releases her dower, and the court confirmed the report. No account ever having been rendered to the court of the execution of the trust, on April 7, 1884, an order was made that the guardian account, which she did. The accountant producing no vouchers, the ward asked leave to prosecute the bond given by the guardian, which was granted; whereupon Ephraim Rose, one of the sureties, filed a petition asking that the accounts of the said guardian be examined by reference to a master. This prayer was granted, whereupon an order of reference was made to Willard P. Voorhees, one of the masters of the court of chancery, who made the following report: "I do hereby certify and report that the said Hannah A. Wordell made sale of the lands of the said infant, William H. Berkholm, on April 2, 1868, for $2,380, and that the said guardian is chargeable with this amount; that the taxed costs * * * amounted to $75.17, for which said guardian is entitled to an allowance and credit; that there were two mortgages upon saidlands at the time of the sale, aggregating $1,000 of principal, * * * with interest due thereon for seven years, to April 1, 1868, at * * * six per cent. per annum, being $420; that there were bills for surveying the farm amounting to $4; for advertising, $2.25,—all which items should be allowed the guardian; that the note of Hans C. Berkholm, held by William H. Posten, should not be allowed as a credit, * * * it not being a lien upon said lands, and was barred by the statute of limitations; that * * * the amount paid out for repairs should not be allowed; that said guardian is not entitled to a credit for taxes paid for the years 1857, 1858, 1859, 1860, 1861, 1862, * * * they not being liens upon the lands upon which they were assessed; that the credit for taxes paid for the years 1863, 1864, and 1865 should not be allowed, as the lien of such taxes upon said lands expired within two years from the time they were payable; that the taxes paid for the years 1866 and 1867 should not be allowed, because it does not appear that any assessment had been made against such land by any description sufficient to identify the same; that at the date of the sale the said guardian owed to the trust fund $878.58; that said guardian, from the report of the sale filed February 28, 1868, is not entitled to dower in the proceeds of said sale; that no interest on the sum of $393.66, the amount paid by said guardian for taxes, should be paid by said guardian, but that compound interest should be allowed said ward on the balance $484.92; that said guardian is not entitled to commissions; that there is due from the said guardian on October 2, 1886, the date of the report, $1,963.09." The ward excepted to the report, wherein the master refused to allow interest on the sum of $393.66, the amount paid for taxes. The surety, Mr. Rose, filed 11 exceptions, including objections to the whole report.
Robert Adrian, for exceptant. Woodbridge, Strong & Sons, contra.
BIRD, V. C., (after stating the facts as above.) The master in this case was directed to report the true amount of the proceeds of sales made by Hannah A. Wordell, as special guardian, and the interest with which she should be charged thereon, and whether the interest should be compounded, and at what rate. He was also directed to allow to her all just and lawful payments out of the said proceeds of sale. His report shows that he found that the proceeds of sale were $2,380, and that she was entitled to a credit against that sum for the costs of the sale, $75.17, and for a mortgage which was upon the premises at the time of $1,000 of principal, together with seven years' interest at the rate of 6 per cent. per annum. He also allows her the sum of $4 for making a survey of the premises, and for advertising, $2.25. A sale of these lands took place in the year 1868, at which time the infant was only about 12 years of age.
For the sake of certainty, I will consider the exceptions in their order. The first one is as to the amount with which the guardian is charged for the lands sold. In my judgment the master is right in finding that the consideration was $2,380. It seems there was a great preponderance of testimony in thi3 direction.
The second exception is as to the calculation of interest upon the mortgage. The master allowed 6 per cent. for seven years, when the insistment is that it should have been 7 per cent. The mortgage bears date about the year 1857, at which time the statutory provision was 6 per cent. The master seems therefore to have complied with the requirements of the law.
The third exception is as to the rejection of a note given by the husband of the guardian, and the father of the ward to one Posten, for $200. This note was of long-standing. There is nothing to show that there was any relation whatsoever, by any manner of contract, agreement, or understanding, that it should be a lien upon the land. The father and maker of the note had been dead several years when the land in question was sold. When he died he left,as I understand the testimony, both real and personal estate. At that time the son was of tender years, and it was the duty of every one interested in him, or in the estate of which Hans C. Berkholm died seized, to see to it that the debt was discharged in a proper and a lawful manner. If a court of equity can tolerate such indifference and laches, when infants are interested, then, indeed, such courts had better disclaim and abandon all interest or regard for the welfare of those whom the law pronounces incapable of managing their own affairs. It was the duty of Posten, in a reasonable time, to enforce the claim of his note against the estate of Hans C. Berkholm, deceased. After such reasonable time, he took all the risk and responsibility upon himself. It was the duty of Mrs. Berkholm, now Mrs. Wordell, to see to it that the estate which her husband left was applied to the proper payment and discharge of all lawful claims against it, and that, too, within a reasonable time. And if she neglected to perform this duty, according to the requirements of the law, and afterwards took upon herself any responsibility, by assuming the payment of claims or obligations against her former husband, she did so at her peril. Who can say now but that there was an abundance of personal property to satisfy and discharge this note? Or who can say now but there was an offset which might be clearly established, or some other defense equally good in the law to this note? Therefore how can any court come to the conclusion that it may not do greater injustice to the ward by allowing this claim than to any other party by disallowing it? The very clearest and strongest proof, in such cases, is necessary to raise an equity.
The fourth exception insists that the master was in error in rejecting taxes paid out of the proceeds of the sale for the years 1857, 1858, 1859, 1860, 1861, and 1862. Now, it appears that these taxes were assessed upon this real estate, and paid in the first instance into the public treasury by the collector, at the request of Mrs. Wordell, the accountant, upon the promises by her that she would afterwards make sale of the same property, and reimburse him. It also appears that he was a friend of Mrs. Wordell. Now, in my judgment, what has been said respecting the payment of the note applies with equal force to the taxes. How can the court tell, at this distant period of time, what was included in these assessments? But when it is remembered that here were about 90 acres of farm land which Mrs. Wordell had the control and management of, and, having such management, it must be conceded that it was her plain duty to keep down all such accruing liens. No one, in attempting to do justice between the parties, would be inclined to say that equity is upon her side, and against her infant son. If the court were to open the door to such charges after such a lapse of time, and under such circumstances, clearly there could be no limit to the carelessness, indifference, or laches assigned to those who have the care of infants' property, and the custody of their persons. As I understand the law, if any class of individuals is held to a strict account, it is that class which controls, whether by assumption, as a volunteer, or by direction of a court and involuntarily, the property and estates of infants. The true rule simply requires every person, whatever be their relation, who meddles with the estate of infants, to be on their guard, and to be prepared to show, by accounts, that he has done faithfully.
The fifth exception is to the effect that the master has rejected her claim for money expended in repairs. This must necessarily come under the same category. The reasoning which I have expressed above is especially applicable here. Mrs. Wordell may, in every just sense, be regarded as the tenant; and, having control of the premises as such for her son, it was most manifestly her duty to see to it that the premises were maintained and kept in repair out of the proceeds of the land.
The sixth exception is, like the fourth, directed to the action of the matter respecting taxes. The master rejected the claim for taxes for the three years 1863, 1864, and 1865, when it is insisted that they were an equitable chargeupon this land. And the same may be said of the seventh exception, which respects the taxes of 1866 and 1867. The taxes for the first three of these years clearly could not be enforced upon the land, the two years within which they could be enforced by the statute having expired; and as to the two succeeding years, from the evidence, the taxes were not assessed that if the premises were not so described in the duplicate as to render them liens upon the land, and therefore could not be enforced. But supposing that the taxes were lawfully assessed against the land, and that the land could have been sold in order to raise the amount of the taxes under the statute in such case made and provided, then there is nothing to take the case out of the principle laid down in Cool v. Higgins, 23 N. J. Eq. 308. In such cases, as I understand the law, it must affirmatively appear as specially provided for in the conditions of sale, and, when not so provided for, continues to be a lien upon the premises. See the case last cited, and also the case between the same parties, but another suit, (25 N. J. Eq. 117.) So that if the great uncertainty which has existed in my mind as to the taxes for the earlier years should be overcome by the fact that the taxes for the last two years are so recent as not to involve either uncertainty or gross negligence, I find the authorities to stand in the way of allowing them, even upon equitable grounds; for it does not appear that the purchaser had any assurance that the taxes had been paid, or that they would be paid out of the proceeds of the sale. Besides, what has been said respecting taxes under the fourth exception is equally applicable.
The views thus expressed render it unnecessary that I should speak of the eighth exception, because that is practically founded upon what is contained in all the preceding ones.
The exception which insists that Mrs. Wordell was entitled to be allowed the same interest in these moneys that she would have been entitled to in the land as widow cannot be sustained. Manifestly she in the fullest and clearest sense relinquished such right. This court cannot now, on its own motion, create a consideration for that act. It was a gift to her infant son, and as binding as though she received a full equivalent. The charge of compound interest by the master, which is the subject of the tenth exception, is according to the law.
The next and last material exception is to the refusal of the master to allow commissions. When I consider the delay, the vexation, the embarrassment, and the expense which this proceeding has imposed upon the ward, I am convinced that it has cost him enough without paying commissions. I fear that to allow commission, in such cases, would be for the court to invite carelessness and waste on the part of every trustee.
The exceptions on the part of Mrs. Wordell should be overruled, with costs. The exception on the part of the ward, to the refusal of the master to allow interest on certain moneys with which Mrs. Wordell had been given credit, I think should also be overruled, with costs.