Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
This is an appeal from a judgment of the County Court, Probate Division, dismissing the complaint of plaintiff executrix seeking an order directing her to surrender a certain promissory note to its makers.
Plaintiff is the married daughter and executrix of Marcus Kirschenbaum who started a 5 and 10 cents business in Belmar and in August 1949 turned it over to his three sons, Leon, Joseph and Morton. In May 1950 Leon and Joseph executed a $40,000 promissory note to their father, payable on demand and representing a loan from him to help finance the business. He had borrowed $23,000 of this sum from a bank. The sons paid interest on the $23,000, but not on the remaining $17,000 which apparently came from decedent's own pocket. By January 7, 1953 they had paid off the bank loan, and on January 12 following Joseph and Leon gave their father their demand note of $17,000.
On October 31, 1953 decedent executed a will by which he named plaintiff his executrix and, after making a number of specific bequests and devises, left his residuary estate to her, his three sons, and his friend Anna Schmerer in equal shares. After his death seven days later, the note was found in a wallet in the trousers he was wearing when he died. Defendant Schmerer subsequently made demand upon plaintiff executrix to collect the note for the benefit of the estate. She refused, taking the position that her father had forgiven and cancelled the obligation in favor of his sons just before his death.
The executrix subsequently instituted this action, asserting that the note was not due and owing to the estate and demanding judgment directing her to surrender the note
to Leon and Joseph Kirschenbaum. Defendant Schmerer answered, claiming that the note was a valid and existing obligation and as such formed part of the assets of the estate. By counterclaim she demanded judgment compelling plaintiff to institute the necessary proceedings for the collection of the note or, in the alternative, surcharging her with $17,000 plus interest for failing to marshal estate assets. The County Court first heard the case without a jury, but then concluded that the matter should be tried to an advisory jury. This was done.
At the trial plaintiff testified that her father had told her "he gave the boys the rest of the note; they didn't owe him anything." Her husband told of a visit by decedent to the Morris home in September 1953, at which time he said that "the way he felt he didn't have long to live and that he was now giving over the $17,000 that the boys owed on the note; that he no longer wanted that paid to him." Leon Kirschenbaum, one of the makers of the note, testified that when his father came to the store in September 1953 to collect rent, he (Leon) offered to make another payment on the note, but decedent said "to forget about it; that he was forgiving the note." Joseph Kirschenbaum, the other maker, related the same incident, his testimony being that his father had said, "Forget about it. You don't owe it to us [me]." Plaintiff and her two brothers also testified that decedent never gave or offered to give his sons the note, or ever spoke about delivering it to them.
The trial judge submitted three questions to the advisory jury for the return of special verdicts:
(1) Whether from the facts of the case decedent in or about September 1953 had "a conversation or conversations with his sons, daughter or son-in-law wherein he made a statement that he was cancelling or had cancelled the indebtedness."
(2) Whether "there is an executed agreement or do you find that there is an executory agreement. By agreement the court means an agreement to cancel the indebtedness. A contractual right, of course, can only be extinguished by another contract. An executed
agreement is one in which nothing remains to be done by either party and where the entire transaction has been completed. An executory agreement is one in which something still remains to be done before ...