contained shall affect any right of dower in the property. Revision, p. 766, § 70. The object of that proviso is to declare that the legislature does not intend to deprive the widow of her dower by the sale of the land to pay the decedent's debts. The act above referred to, "relative to sales of land," etc., while it provides for the sale of the land free from the dower, does not deprive the widow of her dower. It merely transfers her right from the land to the proceeds of the sale thereof. The proviso of the orphans' court act and the act "relative to sales of land," etc., are in pari materia, and are to be so construed that both may stand, and so as to give effect to the manifest intention of the legislature in enacting them. If the proceedings in the orphans' court were in accordance with the requirements of the latter act,—and it is not denied that they were, -the title will pass to the purchaser free from the widow's right of dower. The act expressly provides that in such case the estate and interest of the widow shall pass by the sale, and that the purchaser, his heirs and assigns, shall hold the premises free and discharged from all claims by virtue thereof.

The order appealed from should be affirmed, with costs.

(40 N. J. E. 517)

POMEROY V. MILLS.

(Prerogative Court of New Jersey. October Term, 1885.,

1. EXECUTORS AND ADMINISTRATORS-COMMISSIONS.

Where the executors of an estate appear to have discharged their duty with discretion and fidelity, and each, in his sphere, brought to the business valuable qualifications, there is no ground for any discrimination in the apportionment of compensation, and the commissions should be equally divided between them.

2. SAME-CO-EXECUTOR-SETTLEMENT OF ACCOUNT-INTEREST.

A co-executor is entitled to interest on his share of the commission from the date of the settlement of the account.

Appeal from decree of Morris orphans' court.

F. McGee, for appellant.

H. C. Pitney, for respondent.

RUNYON, Ordinary. This is an appeal from the decree of the orphans' court of Morris county apportioning between the appellant and respondent their commissions as executors of the will of George Pomeroy, deceased. The amount of the commissions is $9,684.66, or 2 per cent. upon $484,233.01, and it was by the decree under review divided between the two executors as follows: $3,873.87 to the appellant, and $5,810.79 to the respondent, that is, 40 per cent. to the former, and 60 per cent. to the latter; and the decree directs that the respondent's share be paid by the appellant, with interest thereon from the fifth of September, 1881. All the moneys of the estate were kept by the appellant, and in April, 1881, he paid out to himself and his sisters, as residuary legatees, $22,999.59, after which payments there was left in his hands only about $440. On the twenty-ninth of that month he took from his sisters a letter of attorney, empowering him, among other things, to pay for them whatever mon

eys might be necessary in managing or settling the estate, refunding to the executors whatever might have been overpaid. The account was settled September 5, 1881. The appellant having so paid out to himself and his sisters as residuary legatees the moneys of the estate in April, not reserving the money which would be necessary, as he knew, to pay the expenses of settling the estate, and he and they having had the use of it ever since, the decree directed that he pay the respondent his share of the commissions, with interest from the date of the settlement of the account. Whatever commissions were due to the respondent at the settlement of the account were payable at once, and the only reason why there was not money wherewith to pay them then was that the appellant had paid it away, as before mentioned.

In his letter of April 1, 1881, the appellant announced to the respondent that he had paid out the money. In a reply sent to him the next day, the respondent protested against the payment, because the executors were required under the will to make provision (which they had not yet done) for a fund to raise $1,000 a year for the testator's widow, and for the expenses of settling the estate, including the commissions. By his letter of the twenty-fifth of the same month to the respondent, the appellant stated that there was only $441.90 left in the hands of the executors, a sum insufficient, as he said, to pay the expenses and commissions, and requested the respondent to name a sum sufficient for that purpose, and promised that he and his two sisters would refund it to the estate. Under the circumstances, it was just to require him to pay the respondent's share of the commissions, and interest thereon from the time of passing the account, in September, 1881.

The appellant insists that the apportionment of the commissions was unjust. In Pomeroy v. Mills, 37 N. J. Eq. 578, the court of errors and appeals said, in reference to the allowance to be made to the executors for their services in settling this estate, that the estate was almost entirely made up of securities readily salable in the New York market, which were either sold there by a firm of brokers, of which the appellant was a member, at the usual commissions, or transferred by the executors to the legatees in specie; that the indebtedness of the testator was very slight; that no litigation attended the administration, and that the executors were prepared to settle their accounts in about a year after the probate of the will, and that, while it was true that seldom could an estate of such magnitude be administered with so little pains, trouble, and risk, it was, on the other hand, to be remembered that the provisions of the will had been executed thus far with discretion, fidelity, and promptitude, and that those qualities formed a highly valuable element in the services rendered; that one of the executors (the respondent) was a counselor of this state, and, while he could not be allowed counsel fees aside from commissions, the fact that his professional skill had made it unnecessary to invoke other legal assistance might justly be regarded. Taking all things into consideration, the court adjudged that 2 per centum on the aggregate of $484,233.01 would be a reasonable compensation to the executors.

v.4A.no.6-49

When it is considered that almost, if not quite, all the active business of the settlement which was not done by agents was done by the appellant, and that the respondent's participation in the settlement was almost entirely supervisory and advisory, and that each executor appears to have discharged his duty towards the estate with discretion and fidelity, and that each in his sphere brought to the business valuable qualifications, there is no ground for any discrimination in the apportionment of the compensation, and I am therefore of opinion that there ought to be none, but that the commissions should be equally divided. Squier v. Squier, 30 N. J, Eq. 627. It will not be amiss to add (although my conclusion is in nowise dependent thereon) that the executors themselves appear to have contemplated an equal division of the commissions between them. In his affidavit submitted

to the orphans' court as the basis of an application for a reconsideration of its award of 5 per centum commissions to the executors, the appellant said that he was entirely willing that his co-executor should share equally with him in the commissions that might be awarded. And the respondent, in his testimony in this court in that same matter, while he insisted that the allowance of commissions at the rate of 5 per centum was just, stated that under the circumstances of the case all that he had ever asked as his own commissions was 2 per cent. He seems at that time to have contemplated an equal division.

The decree should be reversed, but without costz. The commissions should be divided equally between the executors, and the appellant should be required to pay the respondent his share of them, with interest thereon from the fifth of September, 1881.

In re Propounding for Probate of a Paper purporting to be the Will of PEMBERTON, Deceased, late of the County of Monmouth.

(Prerogative Court of New Jersey. October Term, 1885.)

1. WILL-DECLARATIONS OF TESTATRIX AS EVIDENCE-UNDUE INFLUENCE. The declarations of a testatrix, whether m de before or after the execution of the will, respecting the conduct of the proponent towards her, are not competent evidence of undue influence.

2. SAME TESTATRIX-DECLARATIONS-DISPOSITION OF PROPERTY-EVIDENCEWILL..

The declarations of a testatrix that she had no will, and intended to divide her property among her children equally, are not competent to show that she did not make the will which is offered for probate.

3. APPEAL FROM PROBATE COURT ORDER-CONSENT OF PARTY.

Where it appears by the petition of appeal, as well as by the transcript, that an order was made by the consent of a party, the party cannot appeal from it. Appeals from the decree of the orphans' court of the county of Monmouth admitting the will to probate, and an appeal from an order directing the administrator pendente lite to pay the counsel fees, etc. W. H. Vredenburgh and A. C. Hartshorne, for caveators.

G. C. Beekman, for proponent.

RUNYON, Ordinary. Two of these appeals are by John P. Pemberton and Henry H. Pemberton, respectively, from the decree of the orphans'

court admitting to probate a paper purporting to be the will of their mother, Caroline Pemberton, deceased, and the other is by Caroline H. Pemberton, their sister, the proponent, from an order made, according to its recital, on consent of her proctor and counsel, directing that the administrator pendente lite pay the counsel fees, and costs and expenses of the litigation, which the court had decreed should be paid out of the estate. Motion is made to dismiss that appeal.

That the testatrix was competent to make a will when the instrument in question which is propounded as her last will and testament was executed, there can be no doubt. Indeed, her capacity is not questioned; but, the caveators, her two sons, insist that the proponent (who is her only daughter) procured the will by the exercise of undue influence over her. The will was made on the sixteenth of August, 1880, at Asbury Park, where the testatrix was then living with her daughter, who was keeping a boarding-house there. The testatrix died in London, England, November 20, 1882, over two years afterwards. She went from New York on a visit of pleasure to Europe, October 28, 1882, and died 10 or 12 days after her arrival in London. She was accompanied on the visit by the proponent and Henry, one of her sons. Both of the sons were and are physicians. Up to the time of her death they were not aware that she had made this will. According to their testimony, both of them were desirous that she should make a will before she sailed, and spoke to her on the subject, and it appears, by Henry's testimony, that he was desirous that she should do so up to the time of her death. By the will she gave to John mortgages to the amount of $1,200 of principal; to Henry mortgages to the amount of $1,962 of principal; and to Caroline two lots of land in Long Branch, adjoining each other, and a mortgage of the amount of $650 of principal, and also her building loan shares and bank stock, together with all the residue of her personal estate. To Caroline's son she gave two lots of land in Ocean township, Monmouth county, and to John's daughter a lot in Eatontown township, in that county, and she appointed Caroline her executrix. The will was executed with all due legal formalities.

The attempt made to discredit it by endeavoring to show that the name of one of the three witnesses was added after the execution, and that alterations were made in the instrument after it was signed, by correcting sundry mistakes in the Christian name of the proponent and adding a note that those alterations and another were made before execution, was unsuccessful. The testatrix herself gave the instructions for the will to the lawyer by whom it was drawn, either on the same day on which it was executed or the day before, at his office, to which she went alone for the purpose, and she also brought to him, at his request, her deeds and mortgages, the former in order that from them he might describe the real estate to be devised, and the latter that he might describe them in the will. She told him that she wanted him to be very particular about the will, because her sons, both of them, had threatened that if she ever made a will they would contest it; that she did not know on what grounds they intended to contest it, except that one of them had

told her that she was not capable of making a will; and that he would "fight it" on that ground. She was therefore desirous that the witnesses should be persons competent to testify to her competency, and, at her suggestion, two physicians were got. One was Dr. Mitchell, of Asbury Park, whom she herself suggested because he was the physician employed at her daughter's boarding-house, where she lived. The lawyer proposed to get as another Dr. Johnson, also of Asbury Park, but she objected to him on the ground that she thought that he and her sons were intimate friends, and she did not want to cause hard feeling between him and them. The lawyer then selected Dr. Kinmouth, of Asbury Park, and Drs. Mitchell and Kinmouth and Mr. Stout, the lawyer, witnessed her execution of the will. It was signed at the house in which she lived, and in the evening. There appears to have been no attempt or disposition to keep either the fact of the execution of the will or its contents secret. Mr. Stout testifies that it was read by him to her in the presence of Drs. Mitchell and Kinmouth before it was signed. He says he asked her whether she objected to its being read in their presence, and she replied no; that it had better be read in their presence; and he says that he read it to her while they, Drs. Kinmouth and Mitchell, sat talking to each other. It was delivered to her by Mr. Stout immediately after its execution. The proponent's son says that she delivered it to him (her grandson) for safe-keeping at his mother's house in Asbury Park on the first day of October, 1882, telling him to keep it safe; that she had protected his mother in it; and that she, the testatrix, was going to Europe. He went to the city of New York the next day to reside there, and kept the will in his possession in his trunk until about the twenty-third day of November following, when it appears that, having heard from his uncle John P. Pemberton of the death of the testatrix, he rented a box in the vault of a safe deposit company in that city, and deposited it there, where it was kept until it was taken out for the purpose of propounding it for probate.

As before stated, the caveators insist that the will was the result of undue influence exerted over the testatrix by the proponent, with whom she lived for the last years of her life. The testatrix was a widow, (her husband died in 1875;) and when the will was made she was about 70 years old. Her son Henry was a bachelor, and her other son was married and had a family. It was quite natural that she should live with her daughter, who, though she had been married, had married unfortunately, and had been divorced from her husband. By him she had had one child, the son before mentioned. It is not surprising that, in disposing of her property by will, the testatrix should give the greater part of it to her daughter, who was dependent for her support on her own labor, and kept a boarding-house as a means of gaining a livelihood.

Between the mother and the daughter the most affectionate relations appear to have existed, and the daughter gave to the mother the kindest attention. It is urged by the caveators that the proponent influenced her mother to make the will in her favor, because of her desire to aggrandize herself, and because of her hatred to her brothers, whom she de