In re Cooper's Estate

• Decision Date: 04 December 1923
• Citation: 123 A. 45
• Court: New Jersey Supreme Court
• Parties: In re COOPER'S ESTATE.

123 A. 45

In re COOPER'S ESTATE.

Court of Errors and Appeals of New Jersey.

Dec. 4, 1923.

Appeal from Prerogative Court.

In the matter of the settlement of the estate of Henrietta Cooper. An order of the Orphans' Court disallowing legacies of two legatees was affirmed by the Prerogative Court (119 Atl. 634), and the legatees appeal. Reversed.

O. D. McConnel, of Phillipsburg, and W. H. Kirkpatrick, of Easton, Pa., for appellants.

William D. Lippincott, of Camden, for respondent.

GUMMERE, C. J. This is an appeal from a decree of the prerogative court, affirming an order of distribution made by the orphans' court of Camden county, in the matter of the settlement of the estate of Henrietta Cooper, who died, leaving a last will and testament. But a single question is involved in the appeal, and that is whether a legacy given by the seventh item of the will, by the terms of which the testatrix gave and bequeathed to her two sisters, Ann N. Cooper and Mary Adelaide Jacoby, her (testatrix's) distributive share in the estate of her great-uncle, Levi Nice, deceased, and her distributive share in the estate of her great aunt, Ann Nice, also deceased (each of whom while living was a resident of the state of Pennsylvania), had been adeemed in her lifetime.

The will of Henrietta Cooper was made and executed on the 24th of April, 1906. Subsequently, and on October 11, 1907, she was adjudged a lunatic by the Court of Chancery. She died in November, 1914, never having been restored to her right mind, and her will was duly probated. After she had been adjudged a lunatic by the Court of Chancery, an ancillary committee was appointed of so much of her estate as had its situs in Pennsylvania; the committee being one Adamson. In due course the estate of Levi Nice, and that of Ann Nice, were settled, and the moneys into which the distributive shares of Mrs. Cooper therein had been converted were paid over by the legal representatives of those estates to Adamson, the ancillary committee. Upon receiving these moneys, the latter mingled them with other funds which he held belonging to the estate of the lunatic, and after her death paid over the whole amount in his hands, in bulk, to her executors. When the time for settlement of her estate arrived, the question arose whether the legatees named in the seventh item of the will were entitled to have paid to them out of the estate moneys equal to the amount of the legacy given to them thereby, or whether that legacy had been adeemed by the act of Adamson in accepting from the representatives of the two Nice estates the moneys due to his ward as her distributive shares of those estates, or by his subsequent act of commingling those funds with other funds in his hands belonging to the lunatic, or whether the legacy still remained an outstanding obligation in the making of the distribution The two legatees contended that their legacy was still in force. The residuary legatee insisted that it had been adeemed, and that he was entitled to have all of the moneys paid over by Adamson to the testatrix's executor delivered to him as a part of the residuary estate. The orphans' court held that there had been an ademption by the act of Adamson in accepting from the representatives of the Nice estates the distributive shares of the testatrix therein, and directed the distribution of her estate accordingly. On appeal from this part of the order for distribution, the prerogative court reached the same conclusion. The two legatees have appealed from the decree of affirmance.

The theory upon which the decision of the orphans' court rests is that the legacy is specific; that...