Deegan v. Capner

• Decision Date: 08 November 1888
• Citation: 15 A. 819,44 N.J.E. 839
• Parties: DEEGAN et al. v. CAPNER et al.
• Court: New Jersey Court of Chancery

15 A. 819

44 N.J.E. 839

DEEGAN et al.

v. CAPNER et al.

Court of Chancery of New Jersey.

November 8, 1888.

(Syllabus by the Court.)

Bill to compel accounting by executors.

Thomas Capner, late of Lawrence township, in Mercer county, died on the 10th of November, 1864, testate. His will bears date on June 14, 1864, and was admitted to probate on the 29th of November in the same year. It directs that the testator's debts and funeral expenses be paid, and continues in the following language: "Item. I give, devise, and bequeath to my wife, Margaret, out of the proceeds of my real and personal estate, in lieu of her right of dower, the interest of the sum of five thousand dollars, which said sum shall be invested by my executors upon bond and mortgage on good real estate, for her benefit, and the interest to be paid to her semi-annually as long as she remains my widow; and I also give to her all my silver spoons, and two feather beds and bedding, and two bedsteads, her own choice. Item. In order to enable my executors, hereinafter named, to carry out the provisions of this my last will and testament, I do hereby authorize and empower them to sell and dispose of all my property and estate, both real and personal, at any time after my decease, either at public or private sale, and to execute good and valid deeds of conveyance for the same to any purchaser or purchasers. Item. After securing to my said wife the said sum of five thousand dollars in the manner and for the purpose above mentioned, and paying the legacies hereinafter mentioned, and paying my just debts and funeral expenses, and the expenses of settling up my estate, my will is that all the rest and residue of my said estate shall be divided among my children as follows: To Jane Deegan, one share; to Joseph Capner, one share; to Elizabeth Hughes, one share; to Thomas Capner, one share; to James Capner, one share; to Mary Ann Howell, one share; to Margaret Mortimore, one share; to Hugh Capner, one share. I give to my grandson Frank Hughes, son of my daughter Sarah W. Hughes, deceased, the sum of four hundred dollars, to be placed at interest for his benefit during his minority, and the principal to be paid to him on his arriving at full age. Item. I give to my two grandchildren William Henry and Christianna, children of my son William J. Capner, each the sum of four hundred dollars, to be placed at interest for their benefit during their minority, and the principal to be paid to them on their arriving at age. Item. I give to the four children of my daughter Jane Deegan, who are now living, to-wit: Margaret Ann Lord, one hundred dollars; to Mary Elizabeth Lord, two hundred dollars; to Sarah Jane Lord, one hundred dollars; and to Lavinia Lord, one hundred dollars,—which said sum of five hundred dollars is to be deducted out of their mother's share, and the balance of the said mother's share to be invested on bond and mortgage, and the interest to be paid to her annually as long as she shall live; and at her decease the principal to be divided equally between her above-named children, or the survivors of them, share and share alike." The testator's three sons, Joseph, Thomas, and James, were appointed executors of the will, and subsequently proved it, and assumed the duties of executorship.

The bulk of the estate consisted of a farm of about 120 acres, in Lawrence township. Before his death the testator had contracted to sell that farm to his son Thomas for $18,000, and Thomas had paid him $1,000 on account of the purchase price. After the testator's death the executors thought it best to conclude the sale to Thomas; and they did so by making a conveyance, in 1865, to one Edward Davis, who bought in the interest of Thomas, Thomas having been advised not to take a conveyance from himself as executor. Nine thousand eight hundred and twenty-five dollars was paid in cash, and the remainder of the purchase price, $7,175, was secured to be paid by a mortgage upon the farm. The cash was paid by Davis, Thomas having an arrangement with Davis by which he was to give a second mortgage upon the farm for it when Davis should transfer the title of the property to him. The amount of the mortgage from Davis to the executors was arrived at by adding together the $5,000 that was to be invested for the testator's widow, Margaret Capner; the three legacies of $400 each, which were to be ultimately paid, respectively, to Frank Hughes, William H. Capner, and Christianna Capner; and $975, the share of Jane Deegan in the moneys that were divided at that time, less the $500 that were bequeathed to her children by her first husband. The will directed that these moneys should be invested, and the executors thought that a purchase-money mortgage upon the homestead farm would be a sufficient investment by them. Davis afterwards conveyed the farm to Thomas, and Thomas divided it into three parts, and sold the several parts to different persons. One of these parts, consisting of about 46 acres, containing the farm buildings, was sold to Oliver O. Bowman and two others, who assumed and agreed to pay the mortgage of $7,175. The executors released the remainder of the farm from the lien of the mortgage. The development of beds of sand and clay upon the farm had increased its market value so much that they concluded that it would be safe to retain their mortgage upon only 46 acres of it. Payment of interest upon the mortgage was continued to October 1, 1887, and then it ceased. At that time the collection of interest and the actual management of the affairs of the estate were in the hands of Joseph Capner; his brothers James and Thomas having given up active participation in the management. Upon default in the payment of interest, without notice to his co-executors, Joseph commenced proceedings in this court to foreclose the mortgage, and on November 27, 1878, obtained a decree in favor of the executors for $7,753.98, and costs of the suit. Upon this decree execution was issued, and such proceedings were had under it that the lands upon which the mortgage was aliened were, on April 22, 1879, sold by the sheriff of Mercer county to Joseph Capner, for $6,055. Joseph paid the sheriff's fees and the costs of the foreclosure, but no other part of the moneys that he had bid for the farm. He then took possession of the land, and repaired and improved the buildings on it. Since the sale to him he has had all the rents, issues, and profits of the place. He claims now to own the farm in his own right, in fee, and to be accountable only for the $6,055 that he purchased it for at the sheriff's sale. He produced witnesses who testify that at the time of the sale, in their opinion, the land was worth about $7,000. The property appears to be now worth several thousand dollars more than that sum. Several witnesses testify that at various times Joseph Capner declared that he held the farm in trust for his brothels and sisters. Mary A. Howell, a sister, says that after her mother's death, in July, 1882, Joseph said that the farm was increasing in value, and that if it brought $20,000 his brothers and sisters would all share equally in it with him. Mrs. Howell's son-in-law, William Button, stated that, in talking about the settlement with Mrs. Howell, Joseph said that he had bought the farm for the benefit of the heirs, and expected to share it with them. Ralph A. Dey, a son-in-law of James Capner, testified that, in 1885, Joseph told him that he held the deed of the farm in trust for the heirs, and that he did not settle with them because he thought the place would increase in value, and thus benefit them all. George Mortimore, who married Margaret Capner, states that, in 1886, Joseph explained that he did not "pay the liens off," because he thought that the property was enhancing in value, and that, if he was correct, they would all reap the benefit. On the 1st of April, 1887, Joseph delivered to his sister Margaret Mortimore a writing, by which he acknowledged that he, as an executor of his father's will, had purchased the mortgaged farm, and by which he agreed that when the farm should be sold he would divide the proceeds of sale, less expenses, with his said sister, her heirs and assigns, in proportion to her interest in their father's estate. In 1883, Joseph Capner paid to the complainants William H. Capner and Christianna Clark their legacies of $400 each in full, they having become of age; and after this cause was at issue, when the taking of proofs was nearly concluded, he obtained from Mary Ann Howell, Elizabeth M. Hughes, Margaret Mortimore, and James Capner assignments of their respective interests in the farm, and releases of all claims and demands against him individually, and by reason of his executorship of his father's will, and at the same time obtained from the administratrix of his brother Hugh Capner a similar release. For these assignments and releases he paid various sums of money, which will average about $820 in the case of each brother or sister. The bill is filed by Jane...