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Marie E. H. C. Van Der Veer, and Others v. Ames

Decided: January 11, 1950.

MARIE E. H. C. VAN DER VEER, AND OTHERS, APPELLANTS,
v.
WM. AMES, AND ANOTHER, RESPONDENTS



Jacobs, Donges and Bigelow. The opinion of the court was delivered by Bigelow, J.A.D.

Bigelow

This is an appeal from a decree of the Essex County Court, approving the second account of trustees under the will of Helen S. Leonhardt, deceased, as well as a supplemental account of the same trustees. The two accounts cover the period from May 20, 1942, which was the date of a prior account, to September 8, 1948. The accounts disclose the following disbursements charged against corpus , relating to certain real estate at Laurel Hill, Long Island:

Taxes, water charges and insurance premiums $2,082

Appraisal, advertising and auctioneer fees 165

Expense of clearing title 2,139

--------

$4,386

The property was sold toward the close of the accounting period for $8,000. The net income shown in the two accounts was $2,152.

The appeal is confined to the Laurel Hill property. The trustees' interest in the property grew out of a mortgage which testatrix, at her death in 1932, left as part of her estate, covering four tenement houses. The mortgage was then in arrears and the accountants, as her executors and trustees, promptly foreclosed and bought in the land. In the ten-year period from testatrix' death to the date of the first account, they expended $12,093 for foreclosure costs, tax arrears and rehabilitation, and charged that sum to corpus. These disbursements

were set forth in the first account, which was approved by the Orphans' Court by its decree dated October 13, 1942. As nearly as we can understand the position of the appellants, under the guise of general exceptions to the second account, they center their attack on the expenditures totaling $12,093, shown in the first account and allowed by the 1942 decree. The base for the attack is that the title to the Laurel Hill tenement properties was not marketable, and that the property was not worth the amount spent on it. The appellants argue that the trustees were guilty of gross negligence in having spent the large sum that they did spend for foreclosure costs, settlement of tax arrears, and for improvements.

Since the enactment of P.L. 1905, p. 209, now embodied in R.S. 3:10-14, 15 and 16, the decree of the Orphans' Court passing the intermediate account of a fiduciary has the same quality of conclusiveness as does a decree on a final account. In re Slater's Estate , 88 N.J. Eq. 296 (Leaming, V.O. 1917). The statute relating expressly to final accounts but which also applies to intermediate accounts, directs that the decree of the Orphans' Court "shall be conclusive on all parties and shall exonerate and discharge the accountant from all demands of creditors, legatees, or others, beyond the amount of the settlement, except for assets which may come to hand thereafter and in cases where a person applying for resettlement proves fraud or mistake in the account to the satisfaction of the court." R.S. 3:10-18. There has been no application for a resettlement of the first account of the trustees under the Leonhardt will, and there is no charge of fraud or mistake in the account. The decree of the Orphans' Court fully protects the trustees in respect to the disbursements stated in the first account. Beam v. Paterson, etc., Co. , 96 N.J. Eq. 141; affirmed, 99 Id. 427 (1926); City Bank ...


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