ments of alimony to the wife for her separate | a husband entitled to a future hope of recmaintenance. [Ed. Note. For other cases, see Husband and Wife, Dec. Dig. § 299.*] Action by Grace Lamsback against Charles Frank Lamsback. On petition to modify a decree for alimony. Granted. William T. Boyle, for petitioner. Starr, for respondent. LEAMING, V. C. (orally). It is possible and altogether probable that Mrs. Lamsback is receiving better attention and care where she is with her parents, who appear to be supplying her with the best medical attention that can be procured, than she would be with her husband, whose income is so much limited, but that is not the controlling ele ment that we meet at this time. onciliation, and I can see no way under which this court could be justified in continuing to impose upon the husband the payment of alimony under the present conditions. If there should be any mistake touching my present belief that the reason why Lewis the wife refuses to return to her husband, or refuses to even treat with him, is that she has lost her love for him and does not mean to return to him in any event-if her real reason is only that her physical condition is such that it would be imprudent for her to do so that condition of affairs can be made to appear at some future time; but at present I am entirely satisfied that there can be no propriety in continuing the order compelling the husband to pay a weekly alimony so long as there is a fixed determination upon the part of the wife to deny him even the privilege of social intercourse with her, to deny him the right to call at the house and talk with her, or to even discuss with her the propriety of their ever hoping to entertain proper relations as a husband and wife. I am convinced that the only orMr. Lamsback, notwithstanding the diffi- der that can be properly made at this time culties which have heretofore existed be- is an order terminating, for the present, the tween himself and his wife, is still her hus-order requiring weekly payments of alimony, band, and is entitled to some rights. The and I will advise such an order. The limit of the power of this court under the present application is to either continue or to terminate the alimony which is being paid under the former order, and the sole question at this time is whether or not that order for the payment of alimony should be continued longer. He conduct which was disclosed at the former I am convinced that the husband, Mr. Lamsback, is entirely sincere in his wish that his wife should come to him. It is quite manifest, however, that at this time, whatever may have been the conditions heretofore, his wife probably is not physically able to come to him; but, beyond all of that, it is also manifest that, if she were able, she would not come. I do not think it is going too far to say that it may be that her fears of treatment she would receive at his hands are, from her standpoint, in view of her recollections of past treatment, well grounded; but if he is repentant for any faults that may have transpired heretofore, and is sincere in his determination to treat her right and to do by her as a husband should do by a wife, he is entitled to the benefit of his repentance. No conduct that has been shown upon his part at any time has been such as to deny him the status of (71 N. J. E. 729) WYCKOFF et al. v. O'NEIL (Prerogative Court of New Jersey. June 13, 1906.) 1. EXECUTORS AND ADMINISTRATORS (§ 117*)— NEGLECT IN PAYMENT OF INHERITANCE TAX -LIABILITY. St. An executor is responsible for the amount of interest and penalties imposed under 3 Gen. 1895, p. 3341, § 268, regulating the payment of collateral inheritance tax, resulting from of time required to prevent such additional his neglecting to pay such tax within the limit charges on the estate. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 117.*] 2. EXECUTORS AND ADMINISTRATORS (§ 111*)— MANAGEMENT-CREDITS-COUNSEL FEES. Evidence examined, and held not to justify the allowance for counsel fees claimed by the executor. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 448-462; Dec. Dig. & 111.*] 3. EXECUTORS AND ADMINISTRATORS (§ 104*)— MANAGEMENT-CHARGES-INTEREST. As an executor is not entitled to commissions until they have been settled and allowed, if he takes them before that time he occupies the position of a borrower of the amount so taken, and is chargeable with interest thereon to the time of his accounting. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 423-426; Dec. Dig. § 104.*] 4. EXECUTORS AND ADMINistrators ( §109*)— MANAGEMENT CREDITS TRAVELING EX PENSES. Evidence examined, and held insufficient to sustain an allowance for traveling expenses in curred in connection with the business of the estate. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 443; Dec. Dig. § 109.*] 5. EXECUTORS AND ADMINISTRATORS (§ 104*)MANAGEMENT-CHARGES-INTEREST. An executor should not be charged with interest on moneys in his hands previous to the accounting, where it appears that he received such moneys, not in bulk, but in varying sums as from time to time the amounts due on the different securities were paid, and where he settled his account promptly; he being under no obligation to make temporary investments of it. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 423-432; Dec. Dig. & 104.*] (Syllabus by the Court.) ey, to "deduct the tax therefrom" (3 Gen. St. 1895, p. 3341, § 268), and to pay to the state treasurer, in doing which he is acting practically as the agent of the state, and, strictly speaking, the proceeding has no place in his final account. It is a matter in which no other legatee has any interest. It concerns only the executor, the legatee, and the state. In this case, if this was the only error, I should be content to let the matter stand as it is, trusting that, as it was claimed on the argument it would, the orphans' court would correct the error in its decree of distribution; but as this account will have to be restated for other reasons, and in order to have the account stand as it should, I Appeal from Orphans' Court, Warren shall hold that the accountant be charged County. ceased. Final accounting of William O'Neil, as executor of the will of Mary E. Harris, deTo this account exceptions were filed by Martha Wyckoff and others, and from the allowance of certain credits they appeal. Reversed, and account ordered stated. See, also, 67 Atl. 32. re with the whole amount paid on this account, viz., $1,027.75, instead of $152.31, as decreed by the orphans' court. The accountant will not suffer because he can retain from each legatee the true amount of the tax assessed against each legacy, which will not include the $152.31, for which he is personally liable. This method has the advantage of showing the true balance for which the accountant should be charged, and will avoid a retrial of William H. Morrow, for appellants. Syl- the question on the settlement of the decree vester C. Smith, for respondent. for distribution. The next exception relates to a credit in BERGEN, Vice Ordinary. The respondthe account of $300 for counsel fees paid ent, as executor of the last will and tes- Joseph II. Wilson, and in this connection tament of Mary E. Harris, late of Belvi-I will also consider a further exception to dere, Warren county, filed with the surrogate the allowance of $100, additional counsel his final account to be audited and present-fee, to the same counsel on the final aced to the orphans' court for examination and allowance. To this account certain exceptions were filed by the appellants, but only those which I shall state are now here for consideration. One of them disputes the right to a credit for $1,027.75, paid to the state treasurer in satisfaction of the total sum assessed against all the legacies subject to a collateral inheritance tax. The orphans' court surcharged the accountant with $152.31, that sum representing the amount of interest and penalties imposed, because he did not pay the taxes within the time necessary to avoid the penalty. The appellants appeal from so much of the decree as allows the accountant credit for the residue of the amount paid, and the respondent appeals from the decree surcharging the $152.31. I am satisfied that the orphans' court committed no error in making the accountant responsible for the penalty resulting from his neglect to pay the taxes within the limit required to prevent such additional charges on the estate. He had ample funds of the estate, in bank, subject to his check, and the estate should not suffer because of his negligence. With regard to the exception which questions the allowance of the amount paid for collateral inheritance taxes, exclusive of the penalties imposed, it is manifest that the accountant has not observed the law which requires him, if the legacy or gift is of mon counting. I find it impossible to justify the allowance of the $300, and consider the $100 allowed when the account was passed as ample compensation for any services counsel could have rendered this executor in the discharging of the duties of his office. The inventory shows that this estate was bank stock or mortgages, and all of such a class that they were realized on without suit, and apparently without any special difficulty. Nor does the evidence show any particular services rendered by counsel, or the necessity for them. The business of collecting this estate and reducing it to money was such that any man of ordinary business ability could readily conduct it without the aid of counsel. From the nature of the estate, the business knowledge, and judgment of the accountant, he having served two terms as surrogate of the county of Warren, and supported by the fact that the accountant had, for some years prior to her death, been the adviser and attorney in fact of the testatrix, with full knowledge of all her business affairs, and of the place and character of her investments, it is impossible to find any justification for this allowance. Reasonable counsel fees are never refused when the settlement of the estate requires the aid of counsel; but there must be a necessity and the fee allowed based upon some real and not fancied service, and the power to make delphia, it was done there for the convenience an allowance ought never to be so exercised of the respondent. He had ample opportunas to make counsel a legatee. The account-ity as a witness to explain the matter in ant will be surcharged with the $300 allowed by the orphans' court as a counsel fee, but will be allowed the $100 awarded by the orphans' court on the final accounting. detail, but did not, beyond the statement that he went to Philadelphia to assign the mortgages because he had agreed to; but this agreement was carried out because he was going to Philadelphia weekly on his private business, and he would have gone even if the estate had no mortgages on property in that city. These items should not be allowed. They were expenditures made by the respondent in the carrying on of his private affairs and ought not to be cast upon the estate. The appellants also object to so much of the decree of the orphans' court as overrules the exception to the charging part of the account because the accountant is not charged with interest on moneys in his hands previous to the accounting. After a careful con The next question raised relates to a charge of interest decreed by the orphans' court against the accounting on $700, with drawn by the executor as his commissions. The testatrix died August 17, 1904, and the executor filed his inventory of the estate December 13, 1904, but prior to this date, and on November 21, 1904, he drew from his account, as executor, $700, on account of his commissions, and placed the same to his individual credit in bank. The final account of the executor was filed November 8, 1905, in which the commissions were fixed at $717.62, so that with the exception of $17.62 this accountant had had in his possession, sub-sideration of this question, I have come to ject to his own use, his commissions for the conclusion that the decree of the orphans' services nearly a year before they were ful- court in this matter is correct, and that the ly rendered, and for all practical purposes accountant should not be charged with this before any of the services for which commis- interest. He did not receive the money in sions were allowed had been performed. As bulk. It was paid to him in varying sums this executor was not entitled to commis- as, from time to time, the amounts due on sions until they had been settled and allowed the different securities were paid. He setby the court (Lathrop v. Smalley's Ex'rs, tled his account quite promptly, and was 23 N. J. Eq. 192, 194), he occupied the posi- | justified in holding the money to be disburstion of a borrower of the amount taken, and ed as soon as the orphans' court had passshould be charged with interest as decreed ed upon it; nor did he have in hand any by the orphans' court. large sum until a few months prior to the date he might expect to be called upon to pay it out. He could not make any permanent investment, and I cannot say that under the circumstances he was guilty of any negligence in the management of the fund sufficient to justify the court in charging him with interest on the fund in hand prior to the settlement of his account. Another exception, and one which the orphans' court refused to sustain, relates to five items amounting to $25.50. The accountant prays allowance for car fare to Philadelphia and return, and expenses to assign five mortgages. They are set out in the record and need not be recited here. The cost in each case, with a single exception, was $4.90; the exception being $5.90. The appellants insist that these charges are not proper, and it is difficult to understand from the evidence why the accountant was required to go to Philadelphia. In one case, it appears that the purchaser of the mortgage was a resident of Belvidere, where the accountant lived, and as to every case the accountant testified that he had a business in Philadelphia which required him to go to that city every week during the time he has charged this estate with car fares. This admission of respondent is sufficient to justify a refusal of these charges. The car fares were incurred for his own purposes. and the fair presumption from the nature of the business claimed to have been done for the estate is that it was not necessary to put the estate to this expense, and, if any business for the estate was done in Phila Another ground of complaint is that the orphans' court allowed counsel fees on the exceptions in that court and charged the estate with the costs of that dispute. In my judgment, the counsel fees of $200 to counsel for the accountant, and of $100 to counsel of the exceptants, were a proper allowance; but that the costs of so much of the proceedings in the orphans' court as are chargeable to the trial of the exceptions ought to have been adjudged against the accountant, because it was the errors in his account that provoked the exceptions, the substantial and material part of which have been sustained. The decree of the orphans' court will be reversed, and the account ordered restated in accordance with the views here expressed. The costs of this appeal to be paid by the respondent. (74 N. J. E. 751) Henry W. Taft, for defendant. Davies, Stone EARLE v. AMERICAN SUGAR REFINING & Auerbach, for certain bondholders of Philadelphia Sugar Refining Company. CO. (Court of Chancery of New Jersey. Sept. 15, 1908.) 1. CORPORATIONS (§ 561*) — RECEIVERS COL LECTION OF ASSETS-ACCOUNTING. S., who owned a majority of the stock of the C. C. Co., which in turn owned a majority of the stock of the P. S. R. Co., borrowed $1,250,000 from the A. S. R. Co., upon a pledge of such stock (among other collateral), under an agreement that the P. S. R. Co. should not be operated during the pendency of the loan. The P. S. R. Co.'s plant, which was practically, but not entirely, completed, was erected for the purpose of undertaking the same business as that in which the A. S. R. Co., was engaged. One attempt to borrow money with which to start the P. S. R. Co. was made, and proved abortive. To secure the carrying out of the agreement mentioned, the board of directors of the last-named company was organized in the interest of the A. S. R. Co., the lender corporation. The P. S. R. Co. was subsequently declared insolvent, and the complainant was appointed its receiver. He filed the bill in this cause to have the A. S. R. Co. declared trustee for the creditors and stockholders of the P. S. R. Co. because of the former's control of the plant of the latter, and asked that it account for profits alleged to have been made by and through such control. It was proved that the P. S. R. Co. was insolvent when the loan was made; that it never was a going concern, and it was not proved that it could have made profits if it had been operated. Held, that a case is not made which entitles the complainant, as receiver of the P. S. R. Co., to an accounting in this court from the A. S. R. Co. for profits, as it appears that no profits were made in the transaction. [Ed. Note.-For other cases, see Corporations, Dec. Dig. § 561.*] (Syllabus by the Court.) 2. CORPORATIONS (§ 462*)-POWERS-"BUYING OF BILL." WALKER, V. C. The bill in this case prays that it may be decreed that the defendant, the American Sugar Refining Company, on December 30, 1903, became trustee in the control of the affairs and plant of the Pennsylvania Sugar Refining Company, for the benefit of that company and its creditors and stockholders; that as such trustee the defendant make discovery of all profits made and acquired by it by reason of its actions in controlling the affairs and plant of the Pennsylvania Sugar Refining Company, and account to the complainant as auxiliary receiver of that company for such profits; that whatever profits have been made by the American Sugar Refining Company, by reason of its actions in so controlling the Pennsylvania Sugar Refining Company, belong to, and be paid to, the complainant as such receiver, and for further and other relief. For the sake of brevity the defendant will be referred to as the American Sugar Company, and the complainant's insolvent corporation as the Pennsylvania Sugar Company. The state of facts upon which the defendant's liability is said to arise are, succinctly stated, these: The Pennsylvania Sugar Company, a corporation, built a plant and works for the refining of sugar in Philadelphia, which plant was practically completed in the winter of 1903-04. Its construction was commenced in or about the year 1901. The plant was erected for the Pennsylvania Sugar Company by a corporation known as the "Champion Construction Company." Mr. Adolph Where a corporation, organized under Act Segal was the owner of the majority of the April 21, 1896 (P. L. p. 277), loaned the own-stock of the Champion Construction Comer of a majority of the stock of another corporation a large sum of money, and took from pany, which company owned a majority of him a pledge of such stock, it was a vio- the stock of the Pennsylvania Sugar Comlation of the third section of such act, provid-pany. He was therefore the master of both. ing that no corporation created under the act The Pennsylvania Sugar Company's works should possess the power to carry on the business of discounting bills or notes, or of buying were constructed by Mr. George M. Newhall, and selling bills of exchange, the loan, while not an engineer and general designer for manustrictly a discounting of the note, was the "buy- facturing plants, including sugar refining ing of a bill." plants, who appears to be in every way a He testified that in the competent man. winter of 1903-04 the plant of the Pennsylvania Sugar Company was practically fin ished, and that it was tested in detail. Certain complements to the machinery, and certain supplies, however, remained to be acquired to make the plant a complete going concern, as will be hereafter mentioned. [Ed. Note. For other cases, see Corporations, Cent. Dig. 88 1816-1819; Dec. Dig. § 462.*] 3. BANKS AND BANKING (§ 2*)—“BANKING BUSINESS. The "banking business," as defined by laws and customs, consists, among other things, in making loans of money on collateral security. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 2; Dec. Dig. § 2.* For other definitions, see Words and Phrases, vol. 1, pp. 697, 698; vol. 8, p. 7587.] Bill for accounting by George H. Earle, Jr., auxiliary receiver of the Pennsylvania Sugar Refining Company, against the American Sugar Refining Company. Bill dismissed. Grey & Archer, J. De F. Junkin, and H. Snowden Marshall, for complainant. Richard V. Lindabury, John G. Johnson, and Prior to December 17, 1903, Mr. Gustav E. Kissel called upon Mr. John E. Parsons, the counsel and one of the directors of the American Sugar Company, concerning an application for a loan by that company to Mr. Segal. Mr. Kissel, the defendant asserts, was Mr. Segal's agent at that time, but that he afterwards became the defendant's agent. My judgment is that he never was the agent of Segal in any legal sense, but was always the will not accept directions from the proposed agent of the American Sugar Company. Se- committee (provided for in the voting trust gal undoubtedly acted for himself so far as agreement), or does accept notice from the he was not represented by Mr. Thomas B. majority of the stockholders, that they will Harned. The amount of the loan asked for not appoint, or consent to the appointment was $1,250,000. At an interview between Mr. of, the committee; that the construction comHarned, counsel for Mr. Segal, and Mr. Kis-pany notify Mr. Hipple, as depositary of the sel, with Mr. John E. Parsons, Mr. Parsons stock, that inasmuch as no names for a comwas informed that the loan would be secured mittee have been agreed to in the pooling by $1,000,000 of bonds of a property, known agreement, as owner of 26,000 shares (a maas the "Majestic Apartment House," in Phil-jority of the stock of the Pennsylvania Sugar adelphia, by $500,000 of bonds of the Penn- Company), it elects to treat the agreement as sylvania Sugar Company, and by 26,000 not complete, and that Mr. Hipple will be shares of that company. There was a voting so good as to act accordingly, accepting no trust in respect to this stock, which was in- directions from a committee, should names complete. It was stated, either by Mr. Har- for a committee be proposed, and accepting ned or Mr. Kissel, that there was to be an notice that the construction company, as the arrangement that the Pennsylvania Sugar holder of a majority of the stock, will not, Company should not run during the pendency until the notice is countermanded in writing of the loan, which was to be for a year. On by the construction company or its assigns, another occasion Mr. Segal was present, as participate in the appointment of such comwell as the persons just mentioned. It was mittee, or consent to such appointment; that stated that Mr. Segal was not willing to ap- Mr. Hipple acknowledge the receipt of the ply for consent from the other stockholders, communication by a letter or certificate in and that he did not wish anything about the which he shall say that he has received it, transaction in writing. Mr. Parsons declined that he holds the 26,000 shares of the stock to have anything to do with the transaction of the construction company subject to the unless all of the particulars were committed rights, if any, under the pooling agreement to writing. In passing it might be observed as thus stated, to the ownership and control that, on the first visit of Mr. Segal in com- of the construction company and its assigns; pany with Messrs. Harned and Kissel to Mr. that the construction company transfer the Parsons, he (Mr. Segal) stated that he un certificate with trust certificates, if trust derstood or believed that the loan was to certificates are to be issued, to Mr. Kissel be made by the American Sugar Company. under the terms of the Segal agreement; This fact, like the other, is not, in my judg- that if the stock is in the name of the conment, of any very great importance. The struction company, it must give an irrevocafact is, as I believe, that Mr. Segal knew ble proxy, and should assent to whatever from the first that the loan was to be made is the arrangement with Mr. Hipple; that by the American Sugar Company. In other changes in the board (of directors) be arwords, I believe that, in casting about him ranged as proposed; that the lender should for the procurement of a loan with which to be satisfied that the executive officers will complete his Majestic Apartment House, he obey the orders of the directors in respect to conceived the idea that through his virtual | the running of the refinery; a note from the ownership and his actual control of a majority of stock of the Pennsylvania Sugar Company he could secure such loan from the American Sugar Company, under an agreement whereby the Pennsylvania Sugar Company was not to be run in competition with the American Sugar Company. Upon this head there is no difficulty, and I think that the defendant itself does not seriously contend otherwise. In order to secure his client, not so much for the repayment of the loan, for which the security appeared to be inadequate, but more for the purpose of the principal object for which the loan was made, namely, that the Pennsylvania Sugar Company should not run and operate, Mr. Parsons prepared what is called in the pleadings and proofs "Mem. re Segal Loan." It provides that an agreement be made and exchanged; that a stock note be signed and securities be turned over; that Mr. Hipple (the trustee named in the incomplete voting trust agreement) must give a certificate that he holds 26,000 shares sub president of the company addressed to Mr. Kissel, in substance or effect, as follows, will answer: "Referring to the resolution of the directors of the Pennsylvania Sugar Refining Company, passed this day, with reference to the starting of the refinery, I wish to say that I recognize the authority of that resolution, and will act in conformity with it, subject to any change that may hereafter be made by a majority of the board of directors"; that a resolution of the directors may be in this form: "Whereas, to start the refinery at the present time would involve an outlay of a large sum of money which would need to be provided, for which the time is not opportune: Resolved, that the refinery do not run, and that no proceedings looking to the beginning of operations be taken until the further order of the board." The reason I say that the principal object of the loan was to prevent the operation of the Pennsylvania Sugar Company rather than to secure a return of the money is that a corporation, no part of whose legitimate business was the |