Estate of Dunne
Before: Myrick, Ross
Synopsis
Estates of Deceased Persons—Accounts—Compromise of Claim by Executor—Payment.—The executors, with the consent of J. F., one of the devisees under the will, compromised a claim against the estate—■ upon which, after rejection, an action had been brought—agreeing to pay thirty-five thousand dollars, and paid the same as follows: the executors being indebted by note to the estate for twenty-four thousand dollars, and J. F. by note in the same sum, the latter, by agreement’between the parties, executed his note and mortgage to the claimant for the sum of thirty-five thousand dollars, and the executors assumed, as between them and J. F., the payment of the one half thereof, and thereupon the executors credited the notes of themselves and J. F. with seventeen thousand five hundred dollars, respectively:
Held, That the transaction amounted to a payment of the thirty-five thousand dollars, and the executors were entitled to a credit therefor.
Id.—Id.—Claim—Interest.—Held, That the executors were not entitled to an allowance in their account for money paid by them in excess of legal interest in the absence of a written agreement by the testator to pay the same.
Id.—Id.—Id.—Held, That the Court erred in refusing the allowance of an item in the executors’ account set out in the statement.
Opinion — Ross
ROSS, J.: The deceased died June' 8th, 1874, leaving surviving him his wife, Catherine Dunne, and four children, namely, James [547]Francis, Peter Joseph, Mary Felita, and Bridget. He left a will, which, among other things, stated that he had at various times theretofore given to his son James Francis certain parcels of land, and to his sons James Francis and Peter Joseph, share and share alike, a certain other tract of land; and that all of those lands were his separate property. After recognizing his wife’s interest in the community property, and making certain bequests, the testator bequeathed to James Francis and Peter Joseph the remainder of his estate, in equal shares. Andrew J. Donnelly, Edward T. Donnelly, and James Francis Dunne were nominated executors, and upon the probate of the will the Donnellys were appointed executors; James Francis was not—he not then having attained his majority.
The present case arises out of the action of the Court below in respect to the settlement of one of the annual accounts—the main controversy growing out of the refusal of the Court to allow the executors a certain item of thirty-five thousand dollars. The facts in relation to this item are thus given in the record: In 1862 the deceased and Catherine Dunne intermarried, Catherine then being possessed of a large real and personal estate, of which her husband assumed charge and proceeded to collect the rents and profits, amounting, from the time of the marriage to the time of his death, to more than one hundred and fifty thousand dollars, for no part of which did he ever in any way account to his wife. After the death of her husband, Catherine presented to his executors a claim against the estate, in proper form, for the sum of one hundred and fifty-five thousand four hundred and seventy-five dollars, which claim the executors rejected. Afterwards, and in due time, she brought suit against the executors to recover of the estate the sum of two hundred and twenty-one thousand and eighty-four dollars. At this stage of the proceedings a compromise was effected between the executors, James Francis, and Catherine Dunne. The latter agreed to accept, in settlement of her claim against the estate, the sum of thirty-five thousand dollars. There were other conditions of the settlement not important to be mentioned. The executors consented to pay Mrs. Dunne the sum mentioned in full satisfaction of her demand against the [548]
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