In re Pettigrew's Estate

• Decision Date: 26 February 1934
• Citation: 171 A. 152
• Parties: In re PETTIGREW'S ESTATE.
• Court: New Jersey Supreme Court

171 A. 152

In re PETTIGREW'S ESTATE.

Prerogative Court of New Jersey.

Feb. 26, 1934.

Syllabus by the Court.

1. Executors, acting within the scope of their powers, in good faith and with ordinary care, prudence, and diligence, will not be held personally liable for loss resulting from their mere errors in judgment.

2. The law exacts of an executor good faith, ordinary care, prudence, and diligence in the administration of his trust, and not the exercise of a faultless and unerring judgment.

3. Evidence examined, and held, that executors were not guilty of bad faith, gross error in judgment, negligence, or failure to exercise ordinary care and prudence in the performance of their trust.

Appeal from Orphans' Court Bergen County.

Accounting of Harry R. Gabay and another, executors of the estate of James R. Pettigrew, deceased, to which exceptions were filed by Robert H. Pettigrew, who also filed petition seeking revocation of the letters testamentary granted to, as well as the removal of, the executors. Prom orders disallowing the exceptions, allowing the account to be fded, and dismissing the petition for the removal of the executors, Robert H. Pettigrew, joined by Minnie H. Van Ness, appeal.

Affirmed.

Walter Cooper, of New York City, for exceptant.

Edward F. Merrey, of Paterson, for executors.

Hart & Vanderwart, of Hackensack, for Minnie H. Van Ness, legatee.

LEWIS, Vice Ordinary.

James R. Pettigrew died on October 18, 1928, leaving a last will and testament which was duly admitted to probate by the surrogate of Bergen county on October 30, 1928, who thereupon issued letters testamentary to Harry R. Gabay and the Citizens' Trust Company, of Paterson, N. J., the executors therein named. Under its provisions, the testator made specific disposition of legacies amounting to $148,500, included amongst which were $35,000, each, to Robert H. Pettigrew and Harry R. Gabay, $33,500 apportioned amongst several distant relatives and friends, and $45,000 to Minnie H. Van Ness, between whom and the said Harry R. Gabay, the residue of the estate was to be equally divided.

On March 26, 1932, the executors exhibited, and filed for settlement and allowance, their intermediate account in the orphans' court of Bergen county. To this account exceptions were duly filed by Robert H. Pettigrew, one of the legatees under the said will, who at the same time filed a petition seeking the revocation of the letters testamentary granted fa), as well as the removal of, the said executors.

After hearing considerable testimony, adduced both on behalf of the exceptant and the executors, that court, by two separate orders entered on March 28, 1933, disallowed all of the exceptions, allowed the account as filed, and dismissed the petition for the removal of the executors. It is the legality and propriety of these orders that the exceptant, by his present appeal to this court, in which he is joined by Minnie Van Ness, another of the legatees under the said will, seeks to have reviewed.

The exceptions as filed and disallowed may. for convenience, be grouped under three separate heads as being those with respect to: (1) Moneys disbursed by the executors; (2) the prices realized by the executors from the sale of certain stocks and bonds; (3) the failure by the executors to sell certain securities and the real property owned by the estate.

As to the first of these groups, appellant's contentions may be summarized as being: That there was no need of any telephone service and that the payments to the telephone company therefor were unwarranted and illegal; that the services of Joseph Nosel were not necessary to the due administration of the estate, and that, therefore, all wages paid to him, part of which was the payments to Jane Adams for his board, were excessive, unwarranted and illegal; that the payments made to Robert Clement, the inheritance tax commissioner of Topeka, Kan., Robert H. Woodward, tax collector, and to the township of Saddle River were excessive, improper, and illegal.

An examination of the evidence, however, discloses that Joseph Nosel, during the testator's lifetime and at the time of his death, had been regularly employed by the testator as a caretaker of his property, receiving as compensation therefor, besides his board which was furnished by Jane Adams and paid for by the testator, the sum of $75 per month. The executors, after qualifying, merely continued his said employment on the same terms as were in effect at the time of the testator's death. The services rendered by him were both extensive and varied in character, consisting of properly maintaining the farm, and the buildings thereon, and also caring for and looking after the live stock. These duties, however, were somewhat lessened in 1930 when the live stock was sold by the executors, whereupon they reduced his wages to $50 per month, for which he continued to work until a tenant was procured for the entire farm, immediately upon which his services were dispensed with and his wages ceased. Considering the nature, character, and extent of these services, I am constrained to find that they were necessary for the due preservation of the property and that the compensation paid therefor was neither excessive, unwarranted, nor illegal.

The maintenance of the telephone service in the testator's property entailed but a small expense and was necessary as affording an expeditious means of enabling the executors and caretaker of keeping in prompt contact with each other which, of course, was conducive to a more efficient and expeditious discharge of their respective duties, without the loss of time and expense incidental to personal visitations or correspondence by mail.

In order to sell a lot of pieces of old furniture and household articles at the best price obtainable, the executors engaged the services of Robert Clement, a licensed and experienced auctioneer. A mere consideration of the prices which each of these articles brought at the public auction sale conducted by him will demonstrate beyond any peradventure the executors' wisdom and foresight in enlisting his services. Although all of these articles had been duly appraised at the sum of $252.50, they netted the estate, as a result of his services, the sum of $1,816.97, from which the executors paid him for all of his expenses, advertising, and services the sum of $378.06. In the face of such accomplishment and results, it may well and truly be said that he was worthy of his hire.

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