Justice v. Justice's Ex'rs

• Decision Date: 16 November 1889
• Citation: 18 A. 674
• Parties: JUSTICE et al. v. JUSTICE'S EX'RS et al.
• Court: New Jersey Court of Chancery

18 A. 674

JUSTICE et al.

v. JUSTICE'S EX'RS et al.

Court of Chancery of New Jersey.

Nov. 16, 1889.

On bill for accounting.

A. H. Swackhamer, for complainants. R. S. Clymer, for defendants.

BIRD, V. C. Ruth Justice is the widow of Nicholas, and Mary Justice the granddaughter. 'J hey bring their suit against the executor of Nicholas, to compel him to account for what they allege to be a portion of the personal estate of the deceased testator; and against Anna, that she may be compelled, among other things, to submit to a ratable abatement of a legacy which has been paid to her, in case the personal estate should prove insufficient to satisfy the debts of the testator, and to fully discharge the other legacies, and especially the legacy to the widow. The testator died March 23, 1887, leaving a will bearing date January 28, 1887. In and by this will he gave to the "said Ruth $200 in cash, to be paid to her as soon as can be after my decease," and certain household furniture of her choosing; and also the sum of $200 to be paid to her by his executors yearly, which $200 he imposed as a lien upon his estate, which, by the residuary clause, he gave to his son Charles W., whom he made his executor, and whom he also ordered to invest a sum of money sufficient, which at 5 per cent. should produce the said $200. He also gave to his executor $2,000, to be securely invested, and the interest thereof at 5 per cent. to be paid to his granddaughter Mary Justice. The bill shows that the executor, after making certain payments upon account of said legacies to Ruth and Mary, declines to pay further, pretending that the estate will be exhausted in the payment of debts. It also alleges that, in order to reduce the estate to this condition, the said Charles W. caused to be canceled a mortgage which he had assumed the payment of, for $9,000, without satisfaction; and claiming that he is still liable therefor; and also alleging that he pretends that a bond given by Anna Justice, a daughter of the testator, for $2,000, was receipted and discharged by the testator in his life-time, and, consequently, should not have been inventoried. The proof shows that the said $9,000 mortgage was canceled of record in November, 1886. The testator made his last will in January following.

It is urged that the mortgage was fraudulently procured to be canceled. I think there is a failure of proof on this point. There is nothing to show that there was a failure of the mental capacity of the testator at any time. Nor is there anything to show that the son Charles practiced any fraud or deception upon his father by means of which the said cancellation was procured. All that the testimony shows is that intimate and...