Jenkinson v. N.Y. Finance Co.
Decision Date | 30 December 1911 |
Citation | 79 N.J.E. 247,82 A. 36 |
Parties | JENKINSON v. NEW YORK FINANCE CO. et al. |
Court | New Jersey Court of Chancery |
Suit by Richard C. Jenkinson, surviving executor of George B. Jenkinson, deceased, against the New York Finance Company and others. Heard on pleadings and proofs. Decree as stated.
Coult & Smith, for complainant. Collins & Corbin, for defendant New York Finance Co. Guild & Martin, for defendants.
L. R. Robertson & Sons. E. Q. Keasbey, for defendant Banes. McCarter & English, for defendant Bernheim.
This suit is an administration suit, the bill being filed by Richard C. Jenkinson, the surviving executor and trustee of George B. Jenkinson, deceased, for an accounting and settlement in this court. The questions now to be determined relate to the interest of George B. Jenkinson, Jr., one of the children of the testator, in the residue of the estate, and the settlement of the priorities of defendants who claim as assignees of his share under assignments either of specified portions of the share or by way of charge or mortgage upon the share. A preliminary question arises as to the amount of the share subject to the assignments by reason of the claim of the executor to deduct from the share a sum of $5,000 received by the legatee from the executor, with interest thereon. The defendants to the bill include George B. Jenkinson, Jr., against whom a decree pro confesso has been taken, and four of the defendants claiming as assignees under George B., viz., the New York Finance Company, who had two successive assignments, each for $15,000 of the fund, the executors of Gustav Bernheim, L. F. Robertson & Sons, a corporation, and Robert O. Banes, to whom the New York Finance Company assigned its rights under the first of its assignments. The Fidelity Trust Company, an assignee claiming under an assignment from the legatee, admitted to be prior to the executor's claim as well as prior to all of the other assignees above named, except L. F. Robertson & Sons, is also a defendant to the bill, and by an order in the cause made by consent of all the other assignees, except L. F. Robertson & Sons, payment of their claim was made by the executor. As to the preliminary question, the amount of George B.'s share for which complainant as executor is accountable to them, it is contended that a sum of $5,000 which George B., Jr., received from the executor out of the funds of the estate, should not be deducted before paying the portions of the estate under the assignments. The facts bearing upon this issue, which is one partly of fact and partly of law are as follows:
The testator made several specific devises and bequests, none of which are now material to be considered, except the third, eleventh, twelfth, and thirteenth clauses. In the third clause of the will he directed his executors to invest or set apart from any investments he might hold at his death a sum sufficient to pay to his wife $7,500 yearly during her life, and in lieu of dower. On her death these investments are by the twelfth clause to form part of the residuary estate. The widow, who is still living, accepted the provisions of the will, and has received the yearly payments as directed. The executors have not, however, set aside investments to pay the annuity, but by the consent of the residuary legatees, who were also the legatees of the excess over $7,500 of the income on the investment directed to be set apart, have paid the annuity from the general income of the estate. Under the thirteenth clause, the residuary clause, George B. will be entitled to receive one-eighth of this fund on the widow's death if he be then living, but, his share being contingent on his outliving the widow, no portion of this fund (or of so much as should be set aside therefor) is now applicable to any of the assignments, and, under the residuary clause, a question may arise whether his interest therein is not contingent on his surviving the widow. The issue of George, to whom the share George would have taken if living at the time the share was to be paid, is given in case of George's death, are not parties to the suit, and no decision on this point should be made in their absence. The three executors were authorized by the eleventh clause to sell all real estate, the proceeds of sale to form part of the residuary estate.
The residuary clause of the will is as follows:
The testator died on January 30, 1896, leaving a widow and eight children, all of whom are living and are parties to the suit. The widow was one of the three executors named by the testator, the complainant and James T. Ball, a son-in-law, being the other two, and the persons named as trustees in the residuary clause. The widow renounced the appointment of executrix, and James T. Ball died in January, 1898. The complainant as surviving executor and under the power of sale given by the will has sold real estate as well before as after the expiration of the 10 years fixed for the time of payment of the principal sums of $30,000 to the six of the eight children, to whom the balance of the residuary estate is to be paid, under the second subdivision of thirteenth clause.
At the filing of the bill (January 28, 1908) the executor had in hand as George's share the principal sum of the legacy $30,000 and the additional amount of $1,971.49, from which the executor claims a deduction or payment of $5,000 received by the legatee from the funds of the estate between January 23 and April 30, 1904, besides interest. Up to January 30, 1906, when the legacy of $30,000 was payable under the residuary clause, and up to the filing of the bill, the executor had received $112,950 as proceeds of sale of real estate, which under the will fell into the residue, and to one-eighth of which George is entitled. Since filing the bill the executor has received from proceeds of sales of real estate made up to June, 1911, the additional sum of about $171,877.50, to one-eighth of which George would be entitled. On October 14, 1909, an order was made by consent in writing of all parties in the cause except L. P. Robertson & Sons, which, after reciting that the complainant had in his hands funds available to be distributed out of the share of George B. In excess of $00,000, and that the total claim of L. P. Robertson & Sons with interest would not exceed $7,000, directed the executor (after reserving from the funds in his hands distributable to the share of George B. the sum of $7,000 to answer the claim of L. P. Robertson & Sons) to pay to the Fidelity Trust Company, claiming under an assignment dated December 28, 1903, the sum of $40,000, with interest at 5 per cent. from December 28, 1903 (the date of its trust deed or mortgage), less interest paid. The defendants L. F. Robertson & Sons, under a previous assignment executed on May 14, 1901, claimed priority over the Fidelity Trust Company, whose trust deed or mortgage was admitted to be prior to all of the other assignments as well as to the claim of complainant to deduct the amount subsequently advanced to George with notice. After this payment to the Fidelity Trust Company, and after reserving a principal fund for the widow's annuity of $7,500, the funds in the hands of the executor applicable to the share of George in the residuary fund will not at this time exceed the sum of $30,000, without allowing for the retention of $5,000 and interest from January, 1904, to pay the legatee's note to the estate. The claims of the defendants under their assignments (not including interest), stated according to the date of the execution of their assignments, are: L. F. Robertson & Sons, May 14, 1901,...
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