Clapp, Stanton and Francis. The opinion of the court was delivered by Stanton, J.s.c.
This is an appeal by the residuary legatees under the will of Bertha Breckwoldt from an order of the Superior Court, Chancery Division, granting allowances for services by the substituted administrator c.t.a. and his counsel.
The background in which this controversy is set may be obtained from the opinion of the Supreme Court affirming the removal of the executor, 22 N.J. 271 (1956), and from its opinion in the disciplinary action, In re Herr , 22 N.J. 276 (1956).
The entire estate has been distributed to the four charitable organizations which are the residuary legatees -- the last portion thereof pursuant to an order of the Supreme Court dated July 10, 1956, which provides also that it shall be held subject to a lien and charge for the payment of any allowances which may be made to the substituted administrator and his counsel.
The order appealed from was entered on December 17, 1956, and it provides inter alia:
"Ordered that there be allowed to James A. Major, Esquire, the sum of $10,000.00 for services rendered by him in the above entitled cause for and on behalf of the Estate of Bertha Breckwoldt, deceased, and that there be allowed to Gerald E. Monaghan, Substituted Administrator C.T.A. of the Estate of Bertha Breckwoldt, deceased, the sum of $1,000.00 which said sums are adjudged to be reasonable compensation for services rendered in this proceeding and these said sums shall be paid out of the corpus of the Estate either in the possession of the legatees themselves or being held for their benefit."
A further appeal is pending with respect to fees of counsel representing the residuary legatees. If that is decided adversely to them, then the fees or part of them paid
voluntarily by the executor will come into the hands of the substituted administrator.
It may be advisable to mention at this point certain other facts which are not in dispute. The testatrix died on April 10, 1954. The probate of her will was contested and there were extensive depositions taken in pretrial discovery. That litigation was settled with the approval of the court on April 11, 1955, by the payment of $100,000 to the contesting kin and $10,000 to their counsel. The executor qualified on April 15, 1955. As a result of certain matters appearing in the depositions, the Supreme Court on April 25, 1955 ordered Judge Grimshaw to conduct an inquiry into the accusations made against the executor, who was also a member of the bar of this State, and Mr. Major was designated to present the matter before him.
Reference should be made to an agreement entered into between the residuary legatees and the executor on April 27, 1955. In it we find these recitals:
"Whereas by the Sixth Clause of her said will the said testatrix gave and bequeathed her entire residuary estate unto the said Dougal Herr, as executor and trustee, upon the uses and trusts in said will fully stated, the named beneficiaries of said trust being the four charitable institutions hereinabove named as constituting collectively the party of the first part and a fifth institution called the 'Kingsley School, Essex Fells, New Jersey,' which Kingsley School ceased to exist prior to the demise of said testatrix, so that the surviving beneficiaries of said trust became and now are the four charitable institutions firstly above named; and
Whereas the said will provides that the executor and testamentary trustee should apportion and pay all or any part of the net income of the trust estate to and among said charities in the absolute discretion of said trustee, he to have due regard to the relative importance of the work of said charities, 'and to pay and distribute to any one or more of said charities any part or all of the corpus of the residuary estate, as in the trustee's judgment shall seem desirable ...