to the testator, who read it over aloud, said it was all right, then directed Burke and McCue to sign it as executors, which they did, immediately after which he himself signed his name, "Charles H. Fahy;" the whole constituting one transaction, and the actual writing being done in the order of time as it appears upon the document. Neither witness stated that the word "witnesses" was used, or that any explanation was made to them as to why the testator requested the word "Excetoras" to be written instead of "Witnesses."

John A. Dennin, for complainant. John Garrick, for defendant.

PITNEY, V. C. (after stating the facts). Two questions were raised upon the argument, and are presented for consideration and decision: First, as to whether the testamentary writing was properly executed by the testator so as to pass real estate in New Jersey; and, second, whether or not, upon its true construction, the complainant has power to make a valid conveyance of the premises.

So far as regards personal property, if any, left by the testator, the decision of the orphans' court is conclusive as against the next of kin. But that decision does not affect the title to land, as against the heir at law, until seven years after its probate in the orphans' court, and, if the heir at law is an infant, until seven years after he has arrived at maturity. So that, for present purposes, the probate in the orphans' court is of no value. Of course, however, it is to be inferred that the learned judge of that court decided two matters: First, that, while the testator directed the use of the word "Excetoras," he intended to use the word "Witnesses"; and, second, the fact that the signatures of the witnesses precede upon the paper, in place, and also in time, that of the testator, is not fatal to the proper execution of the will.

If it were proper and necessary, in the present situation of affairs, for me to determine those questions, the inclination of my mind would be to agree with that of the learned judge. Chancellor Green in Mundy v. Mundy, 15 N. J. Eq. 290, laid down the rule that "the particular order of the several requisites to the valid execution of a testament is not at all material." That was said with respect to a case where there was no question but that the whole proceeding was one transaction. That opinion is supported by the supreme court of Connecticut in O'Brien v. Galagher (1856) 25 Conn. 228, where the authorities up to that date are collected. Chief Justice Waite, speaking for the other judges, uses this language: "The general and regular course undoubtedly is for the testator, in the first place, to sign and execute the will on his part, and then call upon the witnesses to attest the execution by subscribing their names. But where, as in the present case,

witnesses are called to attest the execution of a will, and, being informed what the instrument is, subscribe their names thereto as witnesses, and the testator, on his part, and in their presence, duly executes the instrument as his will, and all is done at one and the same time, and for the purpose of perfecting the instrument as a will, we cannot say that it is not legally executed, merely because the names of the witnesses were subscribed before that of the testator." To the same effect is what was said by Justice Woodward, speaking for the supreme court of Pennsylvania, in Miller v. McNeill, 35 Pa. St. 217, at page 222, where he uses the following language: "Our statute contemplates, undoubtedly, a signature by the testator, and then a signing by witnesses in attestation of that signature, when witnesses subscribe at all; but where a transaction consists of several parts, all of which occur at the same moment and in the same presence, are we required to undo it because they did not occur in the orderly succession which the law contemplates? No language of our statute of wills imposes any such necessity upon us, and we would not decide anything so unreasonable, except under stress of very positive statutory language. The execution and attestation of the will were contemporaneous, or, rather, simultaneous, acts, and we will not regard the question, who held the pen first, the testator or his witnesses?" The contrary is held by the court of appeals of New York, reversing the supreme court, in Jackson v. Jackson, 39 N. Y. 153; the opinion being written by that distinguished jurist, Lewis B. Woodruff. And it is said by the compiler of the article on "Wills" in 29 Am. & Eng. Enc. Law, at page 209. that the weight of American authority is in accordance with this decision of the court of appeals of New York; but on page 210 is found reference to a number of cases decided in other states, including those which I have above cited, in accordance with the rules laid down by Chancellor Green.

My impression is that the paper was properly executed as a will. But that does not settle the case, for the simple reason that upon its face the paper does not appear to have been so executed, and it will be necessary, in order to maintain title under it as against the heirs at law, whenever they shall see fit to bring the matter to a judicial test, to prove its due execution by the production of witnesses and the display of the facts before a court, and, it may be, a jury. The two witnesses who alone are able to verify those facts may be dead, or beyond the reach of the process of the court, or have failed in memory. None of the depositions already made either those annexed to the will, or those taken in extenso in the orphans' court or in this court-can be made use of against those heirs. They were not parties by construction in the orphans' court, so far as real estate is concerned, and they are not and

It is

cannot be made parties to this suit in this court. No suit can be maintained against them to quiet title which will be of any value until they have arrived at maturity. possible, and perhaps probable, that a suit against those heirs to perpetuate the evidence, resulting in what is called the proof of the will in the court of chancery, might be properly instituted and maintained, and the evidence in that way perpetuated; but in no other way can the widow herself or her grantee be assured against a claim from either of the heirs at law, and I am not prepared to say that such proceeding will be efficient for that purpose. Under these circumstances, ought this court to compel the defendant to take the title? I think not. It is well settled, and I think so settled upon sound principles, that in suits for the specific performance of contracts this court may compel a defendant to take a title, the validity of which depends upon what may be properly described as a doubtful question of law, and may itself determine that question of law for the purpose of the particular case. harm will be done to the defendant because, by an appeal to the court of errors and appeals, that court, which is at once a court of law and of equity, may finally determine the question of law, and settle it as against all the world, whether parties to the suit or not. Lippincott v. Wikoff, 54 N. J. Eq. 107, 33 Atl. 305, where the whole question is thoroughly disclosed by Vice Chancellor Emery. But if the title depends upon a question of

No

fact, which is not a matter of record, and cannot be so made, then the rule is equally well settled the other way, namely, that this court will not compel an unwilling purchaser to take the title. The vice chancellor says (page 114, 54 N. J. Eq., and page 308, 33 Atl.), "In cases where the doubt in relation to title is one of fact, which the court is called on to consider, the general rule has been declared to be that the court will never compel a purchaser to take a title where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings;" and cites a number of cases, which he correctly states "were cases in which the validity of the title depended on whether certain facts existed, and the court held that there was sufficient doubt to put the purchaser in hazard of litigation, and he would not be compelled to take the title." I think this case ranges itself under that class. An action of ejectment may be brought against the defendant by the heirs at law 20 years or more from now, and, for the reasons already stated, he might be entirely unable to establish the facts upon which his title depends. It would not, in my judgment, be equitable or just to compel him to accept that hazard. This renders it unnecessary to determine the question as to whether, supposing the will to be established, the complainant has power under it to make a valid conveyance; but,

in saying this, I do not wish to be understood as intimating that I have any doubt on that subject. I think the bill must be dismissed, but, under the circumstances, without costs.

HARTSON v. ELDEN et al.

(Court of Chancery of New Jersey. Aug. 28, 1899.)

ADMINISTRATORS-RIGHTS OF SUCCESSORSRECOVERY OF ASSETS-ACCOUNTING.

1. Under ordinary conditions, a succeeding administrator takes such goods, etc., of the decedent as may remain in specie not administered. He has no right of action to recover those goods, etc., which the preceding administrator has disposed of in the course of his administration, or to hold him to account therefor. For these the preceding administrator or his representatives must account to the legatees or distributees of the decedent, and not to the succeeding administrator.

2. The statutory right in a succeeding administrator to sue his predecessor, and to compel an accounting at his instance, only arises in cases where the preceding administrator has been removed by the order of the court, because of his refusal to obey its direction, or of his waste, embezzlement, or misapplication of the estate.

3. By the will, the income of an estate is given for life to the widow of the testator. The will fails to dispose of the residue due of the estate. The administrator cum testamento annexo filed a bill for interpretation of the will and instruction as to his duties, making only the next of kin, and not the life tenant or her representatives, defendants. On an accounting ordered in this court in such a suit, neither the receipts of the life estate nor the disbursements therefrom

should be stated. There is no jurisdiction over the life tenant or her representatives, they not being parties.

4. The expenses incident to the safekeeping of the securities of the estate are compensated by the commissions allowed the administrator.

5. An administrator cum testamento annexo, having the money of the residuary estate in his hands, uninvested, awaiting determination of disputes as to its ownership, having no duty to invest it, will not be surcharged with interest, when it appears that he received no profit from its use, and was always ready to pay it over as soon as its ownership was settled.

(Syllabus by the Court.)

Action by Henry Hartson against Perley Elden and others. This matter is presented on exceptions taken to the report of a master, under a decree and order of reference made June 26, 1894. Nathan Elden, the testator, for whose estate the accounting is of fered, made his will, dated August 16, 1873. The will was expressed in terms which were quite doubtful, and named no executor. The testator departed this life on September 10, 1875. His widow, Hettie Elden, survived him, and was appointed by the surrogate of Cumberland county administratrix cum tes tamento annexo, on the probate of the will on September 25, 1875. On February 7, 1876 she resigned her office as administratrix, and Henry Hartson, the complainant, was ap pointed in her place. In April, 1889, Mrs. El den died. In August, 1889, the complainan filed the bill in this cause, asking an interpre tation of the will, and instructions in the per

formance of his duty as administrator cum testamento annexo. There was some litigation touching the construction of the will, and in the reported case of Hartson v. Elden, 50 N. J. Eq. 522, 26 Atl. 561, those questions were settled, and a decree declaring the meaning of the will was made, directing the complainant to account as administrator, etc., in this court, before a master, who was orlered to audit and report the account, and also to ascertain to whom the personal estate of the decedent should be distributed. This latter matter has been reported upon and declared by decree of June 4, 1895. It is to the account which is directed to be stated by the master that the exceptions now under consideration are made, by both the complainant, accounting as administrator cum testamento annexo, and Joseph R. Libley and others, holding residuary interests in the estate. The general scheme of the will, as construed and declared by this court, gave both the real and personal estate to the widow for her life. During her lifetime, the complainant paid over to her all, or nearly all, the income of the estate, and shortly after her death filed the bill in this cause to settle the disputes concerning the effect of the will and protect him in distributing the residue. ceptions sustained in part.

Ex

H. S. Alvord, for complainant. L. Newcomb, for defendants.

GREY, V. C. (after stating the facts). The lifferent exceptions of the several parties will be considered and disposed of in their order.

The complainant excepts to the account reported by the master, first, because the complainant is charged with $200 interest on Lombard University notes, and he alleges that there is nothing in the testimony to show why such a charge is made. At the hearing it appeared that $200 had been deposited to the credit of the cause in this court, and both counsel agreed that this deposit was the interest mentioned in this exception. On this ground this exception was withdrawn.

The complainant's second exception is that the complainant is surcharged with a note for $50 made by one John A. Temple, part of the assets of the testator which Hettie Elden disposed of during the period in which she was administering the estate. In such cases the second administrator takes all of the goods, etc., of the decedent which remain in specie as at his death, and has no right, under ordinary circumstances, to call his predecessor to account for her preceding disposition of the estate. Brownlee v. Lockwood, 20 N. J. Eq. 239; Carrick's Adm'r v. Carrick's Ex'r, 23 N. J. Eq. 364; Thiefes v. Mason, 55 N. J. Eq. 460, 37 Atl. 455. Having no right to recover the assets which the previous administrator had administered, the second administrator cannot be surcharged because he lid not recover them. The situation is not

changed by the fact, which the master recites, that the complainant, on Hettie's death. (some 13 years after the disposition of this note by her), became the administrator of her estate, and that he could then have collected the amount of the note from her estate. Hettie in her lifetime, and the representatives of her estate after her death, were responsible to the legatees or distributees of Nathan Elden's estate for her default as his administratrix. The complainant had no lawful right, as administrator of Hettie's estate, to take her assets, and pay them to himself as succeeding administrator of Nathan Elden's estate, to satisfy her default, committed while administratrix of Nathan's estate. Her action as first administratrix, in disposing of the assets of the decedent's estate, must be settled between her or her representatives and those who had a right to call her to account. When she disposed of those assets she is held to have administered them, and only what remains of the decedent's estate in specie comes to her succeeding administrator. This second exception of complainant is sustained, and the accountant should not be surcharged with the Temple note.

The complainant's third exception is that the complainant accountant is by the master charged with two sums of script issued to him in 1883, for dividends on Northern Pacific stock of the estate, $233.10; interest on that script to 1888, $69.90,-$303. That this sum ($303) was a profit, payable under the will to Hettie as life tenant, and if it is, as a matter of general accounting, charged to the complainant, because received by him as administrator, it should also be credited to him as payable to Hettie Elden or to her estate, because it was a profit received in her lifetime. The tes timony of Mr. Hartson, tending to show the status of this item, whether it was principal or income, is quite confused, but, upon consid ering it with the evidence of the officers of the railroad, it is made clear that the $233.10 was script, issued for the earnings of the road. Under the will, this belonged to Mrs. Elden as life tenant. The interest on the script followed the same ownership. The master has, in Schedule No. 3, surcharged the complainant with these items, amounting to $303 (see charge under date of January 13, 1888), and they form part of the total of the debits, $20,531.17. He nowhere credits the complainant with this $303 as due or paid to Mrs. Elden or to her representatives, as under the method of accounting was done with the other profits paid to her. The master evidently intended that this $303 should go to Mrs. Elden's representatives, for he so states it in the body of his report and in Schedule No. 5. The complaint is not that he does not admit that this sum is due to her representatives, but that he has debited the complainant with it in the account which ascertains the balance ($109.56) due from the accountant, and has not on the credit side of that account allowed it as payable to the representatives of the life tenant, Mrs.

Elden. The master, in stating the account, has correctly separated the real-estate items from those which are personal, but has followed the method of the complainant, and included the income during Hettie Elden's life, and the principal and income earned after her death, in the same statement. These matters are entirely distinct and separate, and should not be jointly stated in this account. The discussion of the complainant's eighth exception gives the reasons why this course should be followed. When the restatement of the account is made, the item $303 will not appear as a charge, and consequently need not be allowed as a credit.

The complainant's fourth and sixth exceptions are based upon the same grounds, that the master did not allow the complainant for his expenditures in hiring a safe-deposit box in which to store the papers, etc., of the estate. The master properly held this to be expense incident to the performance of the duty of the administrator to care for the property of the decedent, for which his commissions were a compensation. The complainant's fourth and sixth exceptions should be overruled.

The complainant's fifth exception is to the master's disallowance of an expenditure of $35 paid to the surrogate of Cumberland county, on May 7, 1892, as the cost of stating an account. The master in his statement of the account offered by the complainant states this item at $30. The voucher produced shows the expenditure to have been $35. The master disallows it, as "an expenditure which should not have been incurred during the pendency of this suit." The proofs show that this account was rendered by the complainant to the surrogate of the county, before whom, under ordinary circumstances, his account should have been stated. That officer has large powers to compel the stating of such an account. See "Orphans' Court," §§ 96-99, p. 2377, 2 Gen. St. He had several times noticed the complainant to account before him, threatening him with citations if he did not. At that time, May, 1892, it had not yet been determined that this court would order an accounting here. Under these circumstances, the complainant appears to have been justified in obeying the surrogate's repeated demands that he account before him, and the incidental costs thus incurred and paid by the complainant should be allowed him. The complainant's fifth exception is sustained.

The complainant's seventh exception is that the master credited the complainant with but $637.63 as the difference between the amount of the inventory and the amount of the proceeds of sales of the property so inventoried; the exceptant claims that "the said credit, by way of difference, should be a much larger amount." This exception was properly withdrawn at the argument. To contend that an item of allowance is not as large as it should be is quite too indefinite a complaint to be made the subject of judicial inquiry.

The complainant further files an eighth ex

ception, that the master has attempted to set forth the amount of debits and credits due to and from the estate of Hettie Elden. The complainant claims that all items should be charged or credited against or for the accountant solely as administrator, etc., of Nathan Elden, and not otherwise. The principle of accounting here insisted upon is correct. Under it the complainant's second exception has been sustained, and the defendant's first exception is overruled. But the complainant himself is somewhat at fault in presenting an account in this suit to which neither Hettie Elden nor her representatives are parties, charging himself with the income due to Hettie Elden during her lifetime. The master has continued the same fault. On this inquiry there can be no ascertainment of any balance which may be payable to Mrs. Hettie Elden's representatives. for the reason, above intimated, that she was no party to this suit in her lifetime, nor have her representatives, as such, been made parties since her death. No criticism, by way of pleading, proof, or argument, has been presented because of this omission, and the only phase of the accounting which can presently be considered is the sufficiency of the account reported by the master as it relates to that part of the estate belonging to the defendants in the particulars excepted to by the complainant on the one side and the next of kin of the decedent (not considering Hettie Elden to be one of the next of kin) on the other side. The other matters referred to the master in the order of June 24, 1894, directing him to ascertain to whom the personal estate of Nathan Elden should be distributed, have been fully reported upon by the master, under date of May 11, 1895, and finally concluded by a decree ratifying that report, under date of June 4, 1895, and cannot be in any way again presented in this court for further consideration or review. When the account now excepted to attempts to charge the complainant with income due to Hettie Elden in her lifetime, it makes him primarily liable to the remainder-men for moneys not due them, and obliges him to explain the proper expenditures of that money, in which they have no interest, and to produce to them Vouchers to justify it. All the items for charge of income earned during Hettie Elden's lifetime, and all items of expenditure, including commissions, allowable against that income, have no place in this account, because, as stated, neither Hettie nor her rep resentatives are parties to this suit. The representative of her estate cannot be bound by either charge or discharge when not in court in the cause, and the defendant next of kin have no right to call the complainant to account for his receipts or disbursements o Hettie Elden's share of the estate. In the re statement, all these items should be exclud ed from both sides of the account, which should be limited to the accounting for the property to which it has been heretofore de

creed the defendants are entitled, which is the principal of the estate and the income earned since Hettie Elden's death. This disposes of the complainant's exceptions.

The defendants' first exception is that the master failed to make any report of the item of $400 in cash, which appeared in the inventory of Hettie Elden, the original administratrix of Nathan Elden, which came to her hands while she was so acting. The defendants claim that it was the duty of the complainant, as administrator, to have collected this sum, of which his predecessor had taken charge as administratrix during the time that she served in that capacity. There is no proof whatever that this $400 inventoried by Mrs. Elden in September, 1875, as part of the testator's estate, and taken into her possession, existed in any form, specie or otherwise, in February, 1876, when the complainant received his letters of administration. The complainant never received the money, but it is claimed that he is chargeable because he knew that Mrs. Elden had received and expended it during the time she was acting as administratrix of Nathan Elden, and it is insisted that he should have compelled her to pay it to him, as her successor. But Hettie Elden had a right, as administratrix, to hold and expend this money, if she did it properly, and her representative has a right to his day in court to show such rightful expenditure. This day can only be given in a suit in which the parties have, by proper allegation, had an issue presented. The exception is controlled by the principles declared in the decisions hereinbefore stated, in allowing the complainant's second exception. The second administrator has no right to call the original administratrix to account for assets disposed of by her while she was administering the estate. The second administrator takes only such assets as remain in specie as the decedent left them. See Thiefes v. Mason and other cases above cited. Counsel for the defendants insist that the complainant, because he became administrator of Hettie Elden's estate in 1889, should have taken this $400 out of her estate, and paid it to himself as administrator of Nathan Elden's estate. But the complainant, as administrator of Hettie Elden's estate, owed no such duty to himself as administrator of Nathan Elden's estate. Hettie Elden, in her lifetime, was responsible to the creditors, legatees, and distributees of Nathan Elden for her management of those assets of his estate which came to her hands. When she died, her administrator might have been liable to the creditors, legatees, or distributees of Nathan Elden for any defaults which Hettie in her lifetime, while administratrix of Nathan Elden, had committed. But neither Hettie in her lifetime, nor her representatives after her death, was liable to her successor, in the administration of the estate of Nathan, for assets of that estate by her taken and disposed of while she was administratrix. They are con

sidered in the law to have been by her administered, and the right of suit to call her to account in such matters lies only with those interested in the estate at the time she undertook its administration. The case of McDonald v. O'Connell's Adm'rs, 39 N. J. Law, 317, is cited as authority for the contention that a succeeding administrator may compel his predecessor to account for those goods of the estate which the predecessor has administered. An examination of this case, and the several statutes on which it is based, will show that the right in the successor to compel such an accounting only arises when the predecessor has been removed or discharged for some of the causes specified in the act, such as refusal to obey an order of the court, or the wasting, embezzlement, or misapplication of the estate. The statutory gift of this right of action may be found as early as Act Dec., 1784 (Pat. Laws, 59) § 8, but it is plainly dependent upon the existence of those conditions of danger to the estate and the removal of the preceding administrator for that reason. The case of McDonald v. O'Connell's Adm'rs, above cited, discusses the operation of these statutes, and declares that the right of action of the succeeding against the preceding administrator, who had been removed by the orphans' court for wasting the estate, is exclusively statutory. In the same decision the cases of Brownlee v. Lockwood and Carrick's Adm'r v. Carrick's Ex'r, ubi supra, are quoted with approval, as illustrations of the principle that an administrator de bonis non may not call upon the representatives of the preceding administrator for the proceeds of the estate disposed of by him. The distinction is not difficult. Where the administrator, proceeding in the ordinary course of duty, dies or is permitted to resign, before he has completely disposed of the estate, his successor takes the portion not administered, and proceeds to complete the settlement. In such cases, the first administrator and his representatives must answer to the creditors, legatees, and distributees of the decedent for the acts and omissions of the first administrator in settling the estate. Where the administrator is discharged or removed for any of the statutory causes, such as contempt of court, waste, or embezzlement, he must instantly account to his successor, not only for the nonadministered estate, but also for that which he has already disposed of, in order that the estate may be at once protected from the danger threatening it by reason of the misconduct of the unfaithful officer. The McDonald Case, above cited, has not, in the subsequent consideration of this question, been treated as antagonistic to the previous decisions. See Bradway v. Holmes, 50 N. J. Eq. 315, 25 Atl. 196; Lindsley v. Dodd, 53 N. J. Eq. 70, 30 Atl. 896. In the matter before me, Mrs. Hettie Elden, the first administratrix, resigned the administration of her own motion. The tendency of the proof in