Raymond S. Taylor died testate on October 17, 1952, a resident of Mercer County, and his last will and testament was admitted to probate by the Surrogate of Mercer County and letters testamentary issued to the plaintiff and accountant herein, the Trenton Banking Company, as executor of said will. The plaintiff-accountant filed its first and final account of its administration as executor with the surrogate and notice of settlement was duly given to all the interested parties, two of whom were minors; and the unborn issue of two of which parties were represented to the court to be or possibly to be affected by this proceeding.
On petition and proper notice, a reputable, able and experienced attorney of this State was appointed by this court as guardian ad litem for the two minors and also to represent the unborn issue of two of the interested parties who are adults.
On the date for which the account was noticed for settlement, the guardian ad litem and person appointed to represent
the class not in being, namely the unborn issue referred to, filed his written report with the court which he requested the court to consider as exceptions to the account, and it was ordered to be so treated and considered. The report shows careful consideration by the exceptant and an exhaustive examination of the account, vouchers, of the general administration of the estate, and of the law pertinent to the several exceptions taken.
None of the exceptions reflect in any way unfavorably upon the administration of the estate by the accountant but rather related to matters upon which there might reasonably be differences of opinion as to the law.
The exceptions are three in number, one of which was cured by agreement with the accountant by the filing with the surrogate of a supplemental report by the accountant as to collateral security held by the executor; and the other having to do with the commissions to be allowed to the accountant as disclosed by the notice of settlement, which was also disposed of with the consent of the accountant by the court's judgment allowing the commissions and account.
This procedure left but one exception for the court's consideration, having to do with the payment of real estate taxes on a certain property owned by the decedent at the time of his death. The decedent died October 17, 1952, owning a dwelling house known as No. 819 Berkeley Avenue, Trenton, which by his will he devised to his widow, Grace V. Taylor. In the account the executor prayed allowance for certain real estate taxes on the premises in question which it paid for the last quarter of 1952 and the first three quarters of 1953 out of the corpus of the estate.
The exceptant, guardian ad litem, etc. , takes the position that since the decedent specifically devised the property in question to his widow, Grace V. Taylor, and there is no clause in the will directing the executor to exonerate the premises of any liens in favor of the widow, any taxes which the executor paid on the premises in question for a period subsequent to October 17, 1952, the date of decedent's death, are not properly charged against the general estate but should
have been paid by the widow as sole devisee and owner and that the executor should be surcharged accordingly.
He contends that since 1918 realty taxes have not been enforceable by distraint and that, therefore, they do not constitute a personal obligation of the decedent which the executor was obliged to honor out of the general estate as a personal debt; were merely a lien against the real estate on which the taxes were assessed (L. 1918, c. 236), and ought not to be paid out of the personal estate. 5 New Jersey Practice (Clapp on Wills and Administration), sec. 256, p. 597, note 8, and note 4 citing Brown v. Brown , 1907, 72 N.J. Eq. 667 (Ch. 1907); Shearman v. ...