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maining in any one of the places in which she / Jacobs, in his work on domicile, a quasi na resided, until she finally removed to Asbury tional domicile. In speaking of the necessity Park. The question of domicile may arise in of residence in a particular place within a relation of a person's residence in a country, country or state as a requisite for the acqui. in a state, or municipality. The place of sition of domicile therein, Mr. Jacobs re residence may mean the house or home which marks: “It is probably not necessary that, shelters the person whose domicile is the in order to work a change in domicile from subject of inquiry, or it may mean the coun- one state or country to another, the person try or state or subdivision thereof in which whose domicile is in question should reach the person intends to make his home, and in the particular spot within the territorial some part of which he resides. In moving limits of the latter at which he intends firfrom one country to another, from one state ing his permanent abode; and indeed it may to another, or from one county or town to perhaps be said that it is not absolutely another county or town in the same state, necessary for such purpose that the person the person almost universally fixes his new should ever have, either in fact or in con. home in some habitation; and the question templation, a permanent home within any is whether he did so with the intention of re- particular municipal division of such state maining in that habitation. The question, or country. Such cases must necessarily be therefore, of his domicile in a particular rare, but it is possible to conceive of a town, county, or state, within which he has Frenchman coming to England with the intaken up his abode is simply a question tention of permanently remaining there, but whether he has fixed his domicile in his habi- without ever fixing a permanent abode in tation.
any particular part of the country. In such But an instance is conceivable where a man case, while it would be doubtless much more who has resolved to change his residence difficult to prove the requisite intention than permanently from one city to another, in pur- if he had, for example, purchased a dwelling suance of such an intention, has broken up house, and fixed himself in it in an apparent. his old home and taken his family to his newly permanent manner, yet, assuming the home. But he has taken them temporarily requisite intention to be made out by other to a hotel or a boarding house until such proofs, there is little doubt that his domicile time as he can secure a suitable dwelling in would be held to be changed.” Jacobson the new city; or, being unable at the time to the Law of Domicile, § 133. The same view get a suitable dwelling, rents an undesirable is held by Mr. Dicey (Dicey on Domicile, p. house until he can procure one more satis- 56), and by Lord Jeffrey, as expressed in Arfactory in the same city, perhaps in the same nott v. Groom, 9 D. Sc. Sess. Cas. (2d Series) street. Now it is perceived that this man 142–145. has done, from the first, all that is essential We regard these views as sound. Notwithto confer upon him domiciliary rights in the standing a frequent change of habitation new city. He resides in the city with the in-may create a situation which the proof tention of making his home there. It is im- of an animus manendi becomes difficult, yet, possible to say that his intention to change if proved, this, coupled with residence, alfrom his boarding house to a private dwell- | though migratory, within the territory of the ing, or from one dwelling to another, destroy- nation or state, equips the resident with a ed his domiciliary intent to live in the city, domiciliary status. So, assuming that this without assenting to the absurd proposition petitioner, while she resided in Newark, that, if he intended to change from one un- Montclair, or Lakewood, had no domicile in satisfactory room in his hotel to a better either of these places, because of the absence room when vacated, that fact would also de- of an intention to permanently remain in any feat his domiciliary intention.
one of them, nevertheless, having an inten. This is an illustration applicable to a tion to remain in New Jersey, and residing change of municipal domicile. But the domi- in New Jersey, she was domiciled in New cile required by the divorce statute seems to Jersey. be more analogous to what is termed by Mr. The decree below should be reversed.
(75 N. J. E. 219)
penalties and interest paid to effect the redempPFEFFERLE et al. v. A ERR.
(Ed. Note.-For other cases, see Executor (Prerogative Court of New Jersey. Jan. 14,
and Administrators, Dec. Dig. g 35.*) 1909.)
7. EXECUTORS AND ADMINISTRATORS (8 35*)1. EXECUTORS AND ADMINISTRATORS (8 35*)— MANAGEMENT OF ESTATE - REMOVAL FROM
MANAGEMENT OF ESTATE REMOVAL OFFICE-GROUNDS.
P. L 1898, p. 767, $ 140, which provides That an executor and trustee paid to the that, when property in the hands of any execuchildren of testator sums in excess of the in- tor or trustee is insecure or in danger of being come of the estate, while the will directed that wasted, he may be required to give bond condinone of the estate should be paid to them be- tioned for the faithful performance of his duty fore they attained a certain age, and that
until under testator's will, is a declaration of legislathat time they should have so much of the in- tive policy indicating that it is not for every uncome as might be necessary for their mainte-warranted act of omission or commission that nance and education, does not justify his remov. an executor is to be removed, and where he has al from office on the application of the children, strayed from the path of fiduciary duty be may in the absence of bad faith and a wanton and be compelled to secure those who might suffer wasteful invasion of the corpus of the estate for loss by reason of his dereliction, but the stigma their maintenance and education.
of removal can be placed on him only in a (Ed. Note.-For other cases, see Executors flagrant case. and Administrators, Dec. Dig. § 35.*]
(Ed. Note.-For other cases, see Executors 2. GUARDIAN AND WARD (8 76*)--SALE OF
and Administrators, Dec. Dig. $ 35.*) WARD'S LANDS-STATUTES-CONSTRUCTION. 8. EXECUTORS AND ADMINISTRATORS ($ 35*)
2 Gen. St. p. 1616, § 3, authorizing the or- MANAGEMENT OF ESTATE - REMOVAL FROM phans' court to order a guardian to sell so much OFFICE-GROUNDS. of the ward's lands as may be adequate for bis
Where an executor and trustee, who had maintenance and education, applies to testamen- made excessive payments to testator's widow on tary as well as statutory guardians.
account of her dower, and had thereby made the (Ed. Note.-For other cases, see Guardian estate insecure, gave a bond as required by the and Ward, Dec. Dig. & 76.*]
court, conditioned on his faithful performance
of his duty under the will, and thereby secured 3. TRUSTS (8 19344*)-SALE OF WARD'S LANDS the estate, his misconduct was not ground for -ORDER OF COURT.
his removal. A testamentary trustee may in a proper
(Ed. Note.-For other cases, see Executors case apply for and obtain the protection of an and Administrators, Dec. Dig. $ 35.*] order of the court to make an encroachment on the corpus of the estate in behalf of his ward, Appeal from Orphans' Court, Essex County. and what may be done in advance may be sub
Suit by Florence Pfefferle and others for sequently ratified.
[Ed. Note.--For other cases, see Trusts, Cent. the removal of Charles F. Herr, executor and Dig. & 246; Dec. Dig. $ 1934.*]
trustee of John F. Pfefferle, deceased. From 4. Wills (8 840*)–CONSTRUCTION - ESTATES
an order of the orphans' court refusing to DEVISED,
remove respondent from his office of executor A testator giving his real and personal es- and trustee, complainants appeal. Affirmed. tate to his children equally, subject to the right of dower of his wife, and directing his executor
Samuel A. Besson and J. M. Roseberry, to sell such parts of the personalty as may be for appellants. Pitney, Hardin & Skinner, necessary to discharge incumbrances on the real for respondent. estate, expresses a clear intention to pass the real estate to the devisees unincumbered and to endow the widow from the same value therein WALKER, Vice Ordinary. John F. Pfefas that value has in the hands of the devisees. ferle died January 1, 1892, leaving, bim sur
(Ed. Note.-For other cases, see Wills, Dec. viving, his widow, Margaret E. Pfefferle, who Dig. § 840.*]
was his second wife, and who has since mar5. EXECUTORS AND ADMINISTRATORS ($ 35*), ried, and whose name is now Margaret E. MCMANAGEMENT OF EstatE-REMOVAL FROM Clellan, and his three children, Florence, OFFICE-GROUNDS.
That an executor and trustee sold his testa- Gertrude, and Frederick, by his first wife, tor's real estate and made excessive payments and two children, Ida and Oscar, by his secto the widow on account of her dower without ond wife. At the time of his death, Florence having her dower interest ascertained according to law, and that a bill filed by the widow, pendo was 12 years old; Gertrude, 9; Frederick, 7; ing proceedings for the removal of the executor Oscar, 2; and Ida, 3 months. Mr. Pfefferle and trustee, has not been prosecuted with due left a last will and testament dated Novem. diligence, do not justify the removal of the ex- ber 11, 1891, which was proved before the ecutor and trustee, at least until it has been definitely ascertained what the fact is as to such surrogate of Essex county January 25, 1892. excessive payments and delay.
Mr. Herr was made executor, and he and [Ed. Note.-For other cases, see Executors the testator's wife were appointed guardians and Administrators, Dec. Dig. $ 35.*]
of his children during their minority. Mr. 6. EXECUTORS AND ADMINISTRATORS ($ 35*)— Herr qualified as executor, and took upon MANAGEMENT OF ESTATE — REMOVAL FROM himself the burden of the administration of OFFICE_GROUNDS.
That an executor and trustee allowed tax- the estate upon letters testamentary being ises on the testator's real estate to become de- sued to bim on the date of the probate of faulted so that penalties and interest were add- the will. Neither he nor Mrs. McClellan ed to them, and so that a part of the land was qualified as testamentary guardians of the sold for taxes, does not justify his removal from office on it appearing that the property has been infant children of the deceased, but Mrs redeemed and he has been surcharged with all | McClellan in 1903 was appointed guardian For other cases seo same topic and section NUMBER IA Dec. & Am. Dlgs. 1907 to dato, & Reporter Indexes of her two infant children by the Essex coun-, cery was appointed guardian of her infant ty orphans' court. The testator in his will children and filed answers on their behalf devised and bequeathed all his real and per- through counsel appointed for that purpose. sonal estate unto such of his children as After hearing and on February 26, 1906, a should be living at the time of his death in final decree was made in the cause (no opinequal shares, subject to the right of dower ion being filed), which ordered and adjudged of his wife in the real estate, and directed that the real estate whereof the testator died his executor to sell so much and such parts seised, together with the personal estate reof his personal estate as might seem neces- maining in the hands of the respondent as sary to pay and discharge all incumbrances executor, after administering upon said eson his real estate; it being his will, and he tate, are held by him in trust for the comdid order, that none of his real or personal plainants and the defendants Ida and Oscar estate should be conveyed or paid over to Pfefferle, to keep the same and to apply the his children before they attained the age of equal undivided one-fifth part of the net in30 years respectively, they, however, to have come and profit, or so much thereof as in his so much of the income and profits thereof judgment may be necessary for the mainas might be necessary for their maintenance tenance and education of each of said chiland education during their minority and dren who have not reached the age of 21 for their support until they attain said age. years, and for the maintenance of each who
The appellants in their petition to the or- have reached that age until they shall attain phans' court alleged that the executor and the age of 30 years, and to pay to each his trustee had wasted and misapplied the estate or her equal undivided one-fifth part of the committed to his custody and had abused the principal of said estate, together with any trust and confidence reposed in him by the accumulated income, as and when he or she testator; that up to September, 1901, he had shall attain said age, and upon the further paid to the widow $9,215.42 of the principal trusts declared in said will, subject, however, of the estate in violation of the provisions to the right of dower of the widow, and that of the will; that he had so paid out of the the trustee apply an equal one-fifth part of principal to Florence the sum of $5,199.49, the net income and profits of the estate, or to Gertrude $3,732.41, to Frederick $1,661.33, so much thereof as in his judgment may be to Ida $1,012.84, and to Oscar $829.97—in necessary, for the maintenance and educaall $21,650.56. It will be noticed that the tion of each of the children who have not petitioners are Florence, Gertrude, and Fred- reached the age of 21 years, and for the erick, who were recipients of the respond- maintenance of each of them who has reachent's disbursements out of their father's esed that age until he or she shall reach the tate. The fact is that the respondent from age of 30 years respectively. the death of the testator until the filing of The question of the amount of allowance his second account as executor provided out of the estate to the children of the dethe petitioners and other children of the de- cedent was a question of doubt and difficulty cedent with means for their support and ed. at least, for, on a prior bill filed which was ucation as seemed to him justified; but be- demurred to for want of parties, Vice Chancause of exceptions filed to that account, cellor Stevenson in his opinion (Pfefferle v. questioning among other expenditures those Herr, 65 N. J. Eq. 325, at page 327, 55 Atl. made for the support and education of the. 1103, at page 1104) said: “Whether the right petitioners, and complaining that the re- of each child to maintenance, etc., applies spondent should not have allowed more mon- only to the income of his share, or to the ineys from the estate to be expended for the come of the entire estate, is the question of petitioners than the share of the net income construction to be determined at the start. belonging to them, the respondent, for his The will says 'that so much of the income and own protection, ceased making allowances profit thereof-i. e., of the entire real and to the petitioners.
personal estate'as may be necessary,' shall In this posture of affairs, the appellants be applied to the maintenance and education filed a bill of complaint in the Court of Chan- of the children. The will does not say that cery praying in the alternative, among other so much of the income of each share as may things, that the respondent as executor be be necessary shall be applied to the maindecreed to pay to each of the complainants tenance and education of the child entitled out of the income to which they are entitled to the share.” The objection, as I underunder the will of their father, the sum of stand it, is that the executor and trustee paid $40 per month for their maintenance and to the children of the testator sums of money support, or that he be ordered and decreed in excess of the income of the estate; but to provide in some other way for the neces- there is no allegation that any of these sums sary education, support, and maintenance of was paid for anything other than maintethe complainants. The defendants to this nance and education. Assuming that porbill were Mr. Herr, the executor, Mrs. Mc- tions of the allowances made for the support Clellan, the widow, and her infant children, and education of the infants were advanced Ida and Oscar Pfefferle. The executor an- out of the principal of the estate upon the swered, and a decree pro confesso passed sale of certain portions of the realty, the er. when they are entitled to their shares in sev- , land from a mortgage put thereon by the ineralty upon attaining the prescribed age, es- testate, and dower be assigned therefrom as pecially in view of the fact that the trustee if unincumbered, and as to a mortgage upon bas given security.
the land assumed by the decedent dower must By statute (2 Gen. St. p. 1616, § 3) the or- be assigned therefrom subject to the mortphans' court may order a guardian to sell so gage. The direction in the will for the paymuch of the ward's lands as may be adequate ment of all incumbrances on the testator's for his maintenance and education, and this, real estate out of his personal property is, as I understand it, applies to testamentary as to my mind, the expression of a clear intenwell as statutory guardians. It was held in tion to pass the real estate to the devisees Re Hannah Barry, 61 N. J. Eq. 135, 47 Atl. unincumbered, and to endow the widow in 1052, that this court will leave the question the same value therein as that value has in of the necessity of expenditure out of the the hands of the devisees. Hetzel v. Hetzel principal of an infant's estate for his main- (October term, 1908, not yet officially reporttenance to the judgment of the guardian, ed) 71 Atl. 755. Since this controversy has subject to the supervision of the orphans' arisen between certain of the beneficiaries court on the settlement of the accounts. In and the executor, the widow has filed a bill Stephens v. Howard's Ex'r, 32 N. J. Eq. 244, for dower in the Court of Chancery. It is asVice Chancellor Van Fleet held that where a serted by the appellants that the bill for dowlegacy vests in an infant, but is payable when er has not been prosecuted with due diligence. it attains a certain age, and its father is un- Whether this be so or not, in a collateral able to support it, and the interest arising proceeding like this, the want of diligent from the legacies is not sufficient for that prosecution of a suit for dower should not purpose, a court of equity may, in advance of be made the basis of the removal of an exthe time fixed for payment by the will, order ecutor who is said to have made overpay. the principal of the legacy applied to the ments on account of dower to the widow; support of the legatee. These citations are at least, until it has been definitely ascermade for the purpose of showing that en- tained what is the fact in this regard, the croachment upon the principal of the estate of matter should be allowed to remain in statu a legatee in advance of the period of distribu- quo. I fail to see that bad faith or gross intion is not absolutely and under all circum- competence is chargeable against the executor stances forbidden. A trustee may, in a prop- in reference to this matter. er case, apply for and obtain the protection It is charged also against the executor that of an order to make such encroachment in be he allowed taxes upon the testator's real eshalf of his ward; and it appears, too, that| tate to become defaulted in, and that penalwhat may be done in advance may be ratified ties and interest were added to the amount of afterward. In the absence of bad faith, and the taxes, and that some at least of the real unless there be wanton, excessive, and waste- estate was sold to the city of Newark. As ful invasion of the corpus of an estate for the a matter of fact, the lands have been redeemmaintenance and education of its beneficiary, ed, and the executor in his account in the orIt would appear that a foundation does not phans' court was surcharged with all penexist for the removal of a trustee upon that alties and interest that were paid to effect score. It may be that the trustee will have such redemption. In this respect the estate to submit to a surcharge in this matter in the has not suffered at all. Of course, the exend, but for present purposes a showing is ecutor was very derelict in permitting this not made which calls for the removal of the thing, but he has atoned for his default. trustee because of these advances.
Because it appeared to the judge of the When the executor sold real estate, he orphans' court, who heard this matter below, made payments to the widow on account of that by reason of advances made by the her dower, without having her dower interest trustee on account of the widow's dower the ascertained according to law, and it is claim- assets of the estate were to some extent ined that he has paid her excessive amounts. secure, it was ordered that the executor give The testator directed that all the incumbran- a bond to the ordinary in the sum of $10,000, ces on his real estate should be paid out of conditioned for the faithful performance of his personal estate. It would seem from this his duty under the will, which bond I unthat the testator intended that his wife derstand has been given, and the estate thus should be endowed in the gross value of his secured. By section 140 of the Orphans' real estate, not deducting any incumbrances Court Act (P. L. 1898, p. 767), it is provided thereon. In McLenahan v. McLenahan, 18 N. that, when property in the hands of any J. Eq. 101, it was held that, if lands are de executor or trustee is unsafe or insecure or vised subject to a mortgage not made by the in danger of being wasted, such executor or decedent, the heir or devisee takes cum onere trustee may be required to give bond to the unless the decedent shall have assumed the ordinary conditioned for the faithful performdebt in such manner to show his intention ance of his duty under the will of the testa. to charge his personal estate; and in Camp- tor. This declaration of legislative policy bell v. Campbell, 30 N. J. Eq. 415, on a bill clearly enough indicates that it is not for for dower in lands of an intestate, it was every unwarranted act of omission or comonly that, if he has strayed from the path of invoker, and to which she was entitled when fiduciary duty, he may be compelled to se- her property was in jeopardy. . Security was cure those who might suffer loss by reason required, but the executors were not removed, of his dereliction; the stigma of removal to and the Court of Errors and Appeals afirmed be placed upon him only in a flagrant case. the chancellor.
In Carpenter v. Gray, 32 N. J. Eq. 692, By section 149 of the Orphans' Court Act Chancellor Runyon, as ordinary, refused to (P. L. 1898, p. 770), it is provided that upon remove an executor or require him to give refusal or neglect to do and perform certain security on a petition asking for an account, enumerated acts, or for embezzlement, waste, ing as to the investment of a trust fund of or misapplication of the estate committed to $3,000; no bad faith appearing. The Court bis custody, or for abuse of the trust and of Errors and Appeals held, in Holcomb v. confidence reposed in him, an executor or Coryell, 12 N. J. Eq. 289, that a testator has trustee may be removed by the orphans' a right to impose confidence in whom he court. Chancellor Runyon, as ordinary, in pleases, and if he selects as his representa- Lett v. Emmett, 37 N. J. Eq. 535, held that tive an irresponsible or insolvent person, in an executor should be removed because he the absence of fraud or misconduct or breach sought by false representations and by taking of trust, security cannot be required of such advantage of her poverty to induce the reexecutor; but if the acts or omissions of the siduary legatee to sell her interest in the trustee be such as to endanger the trust prop- estate to him for a small price and about erty, or to show a want of honesty or a want one-fourth of its value. Here was no case of proper capacity to execute the duties or of mistake or ignorance or carelessness, but a want of reasonable fidelity, equity will re- a fraudulent act of commission of the most move such trustee. In that case (Holcomb v. palpable sort, which fully merited the judge Coryell) it appeared that executors filed an ment pronounced against the executor. In inventory containing five items of assets, one Finn's Case, 31 N. J. Eq. 640, Chancellor of which was "bonds, notes, and books of ac- Runyon, as ordinary, held that it was not count, $84,004.15." Upon a bill filed com- proof of waste, in a proceeding to remove a plaining of the inventory and calling upon guardian who was personally responsible, the executors to account and state the par- that he had incurred liability to pay counsel ticulars which constituted the assets, instead fees in a controversy over his management of availing themselves of the opportunity of the ward's property, since such fees, if unthus afforded of placing themselves right up- lawful or unnecessary, might be disallowed in on the record, they put in an answer insisting his account. In Heisler v. Sharp, 44 N. J. that the inventory and appraisement was all Eq. 167, 14 Atl. 624, it was held in this that the law required. It appeared, however, court that no man is infallible. The wisest as a fact, that a true inventory and appraise- make mistakes; but the law holds no man ment exhibited one of the executors as a responsible for the consequences of his misdebtor to the estate in the sum of $32,000 takes which are the result of the imperfecand upwards, and the other in the sum of tion of human judgment and do not proceed $3,600 and upwards. The executor who owed from fraud, gross carelessness, or indifferthe larger amount brought in a bill for his ence to duty. Affirmed for the reasons given services as agent of the testator amounting by the vice ordinary. Heisler v. Prickett, 45 to $11,800, and for purchase money for prop- N. J. Eq. 367, 19 Atl. 621. erty of his own which he had conveyed to There is much to criticise in the conduct the executors amounting to $21,500. After of this executor and trustee, but I do not full examination it was determined that he think that a case has been made which rewas entitled to $1,200 for services, and that quires his removal and the revocation of his he had conveyed property to the estate for letters. The giving of security which was the purpose of exhausting the assets in hand. ordered in the court below was, I think, all but not of liquidating his indebtedness, and that was required. charged exorbitant prices, and in a manner The order appealed from will be affirmed. not authorized by law. The chancellor in the court below, upon this state of facts, remarked that he was not disposed to impute
(75 N. J. E. 88) moral turpitude to either of the defendants
VANAMAN V. FLIEHR et al. in the discharge of their duties, but there (Court of Chancery of New Jersey. Dec. 23, had been such a palpable mistake on their
1908.) part, as to the obligations and duties imposed 1. CHATTEL MORTGAGES (8 153*) —"MORTGAupon them, such a disregard of the rights of
GEES IN GOOD FAITH"-MORTGAGE SECUR
ING PRE-EXISTING INDEBTEDNESS. the infant complainant, in the manner in
The language "mortgagees in good faith," which the suit had been defended, and such
as used in P. L. 1902, p. 487, § 4, providing ignorance and negligence in the manage that a chattel mortgage not accompanied by ment of the large fund at their disposal, as
immediate delivery, followed by actual and con
tinued change of possession, shall be absolutely imperatively demanded of the court to extend void against mortgagees in good faith, unless to the complainant the protection which was the mortgage, having annexed thereto a pre