14 A. 638 (N.J.Eq. 1888), Terhune v. Oldis

Citation:14 A. 638, 44 N.J.Eq. 146
Opinion Judge:THE ORDINARY
Party Name:RICHARD P. TERHUNE, executor of the last will and testament of PETER R. TERHUNE, deceased, appellant, v. MARGARET OLDIS, respondent
Attorney:Mr. A. D. Campbell, for the appellant. Mr. J. M. Van Valen, for the respondent.
Case Date:February 01, 1888
Court:Supreme Court of New Jersey
 
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Page 638

14 A. 638 (N.J.Eq. 1888)

44 N.J.Eq. 146

RICHARD P. TERHUNE, executor of the last will and testament of PETER R. TERHUNE, deceased, appellant,

v.

MARGARET OLDIS, respondent

Prerogative Court of New Jersey

February 1, 1888

On appeal from the Bergen county orphans court.

Decree of orphans court affirmed.

Mr. A. D. Campbell, for the appellant.

Mr. J. M. Van Valen, for the respondent.

OPINION

[44 N.J.Eq. 147] THE ORDINARY

The appeal in this case is from the decree of the orphans court of Bergen county upon exceptions to the account of the appellant, as executor.

The testator, Peter R. Terhune, died in January, 1879, and the account in question was filed in September, 1885. It is the first account that the executor has rendered, and is termed by him an intermediate account, because he claims that a final settlement of the estate and distribution of the moneys in his hands cannot be made until the termination of an annuity, which is charged upon the estate, by the will, in favor of the testator's widow during her life or widowhood. The account is unquestionably final as to that which is settled by it. Pomeroy v. Mills, 37 N.J.Eq. 578. It is intermediate

Page 639

merely in the sense that it is not the last account that the executor must render. Though it be not the last account, it should include everything that has been done in the administration of the estate to the time it is filed.

The first objection, presented by the petition of appeal, is to that part of the decree which directs that the executor be charged with $ 8,000, the principal, which was secured to be paid to the testator by a mortgage made by the appellant and his wife in August, 1875, and interest upon it from March 2d, 1880, the [44 N.J.Eq. 148] day upon which the executor caused the registry of the mortgage to be canceled, to the date of filing the account. The main contention in the case is upon this part of the decree.

In proof of the indebtedness thus charged, the husband of the respondent and the respondent herself, were sworn. The husband testified that, shortly after Peter Terhune's death, the appellant told him, in the presence of the respondent, who is the appellant's sister, that he, the appellant, was indebted to the testator in the sum of $ 13,000--$ 5,000 upon a note and $ 8,000 upon a mortgage--and that, at another time, when the inventory was being taken at the house of the decedent, the appellant re-iterated the statemen the had made as to his indebtedness, and added that he would not inventory the $ 8,000 mortgage because "it would run the inventory up too high, " but that he would "bring it in when he brought his account in."

The respondent testified that, shortly after her father's death, the appellant said that he owed his father's estate $ 13,000--$ 5,000 upon a note and an $ 8,000 mortgage. She stated that her husband was present at this interview, and that she thought that the appellant's wife was also there. Added to this testimony, a bond and mortgage were produced from the possession of the appellant, proved by the subscribing witness to them, and offered in evidence. The bond bears date on the 25th day of August, 1875, and is in the penal sum of $ 16,000, and is conditioned for the payment of $ 8,000. Nothing is said in it, either as to interest or as to the time when the...

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