Appeal Of Bergmann.

Decision Date26 July 1946
Citation48 A.2d 578
PartiesAppeal of BERGMANN.
CourtNew Jersey Prerogative Court
OPINION TEXT STARTS HERE

Appeal from Orphans' Court, Bergen County.

In the matter of the account of Louis Bergmann, Jr., as executor of the estate of Louis Bergmann, deceased. From so much of a decree allowing the account as dismissed an exception seeking to surcharge the executor with a sum claimed to be an asset of the estate, Walter Bergmann appeals.

Affirmed.

Syllabus by the Court

.

On an exception to an executor's account, evidence examined, and held, the executor is not to be surcharged in not instituting legal proceedings in an effort to collect a debt due the estate he reported as worthless.

James A. McTague, of Jersey City, for Walter Bergmann, appellant.

J. Frank Young, of Newark, for Louis Bergmann, Jr., executor, respondent.

LEWIS, Vice Ordinary.

This is an appeal from a decree of the Orphans' Court of Bergen County, allowing the account of the executor of the estate of Louis Bergmann, deceased, so far as it dismisses one of the exceptions to the account. This exception was referred to a master, who after a hearing disallowed it, and the decree confirmed his findings. The exception seeks to surcharge the executor with the sum of $10,000 claimed to be an asset of the estate which the executor reported in his accounting as worthless.

The sole question therefore is whether the executor was justified in reporting the item as worthless and uncollectable, and was justified in taking no legal steps in an effort to collect it.

The findings of the master in substance are as follows: The estate, outside of the $10,000 item, grossed only about $1,250. Some time prior to 1929, decedent turned over various securities to his son-in-law, one Bensen, who used them as collateral security for a loan from a bank. The loan was not paid and the securities were sold. Bensen agreed to make good, which he never did, although he did pay some interest from time to time on the debt. In 1937 Bensen executed a formal acknowledgment of the obligation.

Decedent died on March 2, 1938, leaving a life interest to his widow, who died in 1941, the remainder to his three children, one of whom is the executor, one the wife of Bensen, and the third the appellant.

The master found that Bensen since the death of decedent has had no property or assets, and has been dependent on his wages, while his wife has had some earnings from the sale of dresses. Although the obligation had existed for many years,...

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