
    Anna Greiner, admx. of Louis Greiner, deceased, appellant, v. William Greiner et al., respondents. William Greiner et al., appellants, v. Anna Greiner, admx. of Louis Greiner, deceased, respondent.
    1. An administratrix assigned to her counsel certain stock of the estate, and he immediately transferred it to her individually. On a bill in chancery against her by the next of kin, the transaction was declared fraudulent, and the administratrix was ordered to hold the stock and account in chancery for it and its accumulations, and was enjoined from disposing of it.' — Held, that, in settling her account, she was, under the circumstances, entitled to an allowance for the depreciation of the stock pending the injunction.
    2. A widow may reclaim from her husband’s estate moneys of her separate estate which she loaned him during his lifetime, and which he applied to the payment of a mortgage on lands, the title to which stood in the names of her and her husband, as husband and wife.
    
      Appeal from decree of Essex orphans court.
    
      Mr. J. W. Taylor, for the administratrix.
    
      Mr. J. Whitehead, for the next of kin.
   The Ordinary.

These are cross appeals from the decree of the Essex orphans court upon the final account of the administratrix of Dr. Louis Greiner, deceased. Her husband, Dr. Greiner, died intestate in November, 1874. The administratrix filed her inventory of the estate December 21st, 1874. It included two hundred and fifty shares of the capital stock of the Newark City Mutual Insurance Company as the property of the deceased, which were appraised at $12,500. On the next day after the filing of the inventory she assigned that stock to her counsel, merely for the purpose of obtaining title thereto herself, for her own personal use, by means of an assignment of it by him to her; and he, by an assignment dated the next day, transferred it to her accordingly. She filed her final account in the orphans court, September 30th, 1875. In it she charged herself with the amount of the inventory, and, among other things, claimed allowance for $3,830.28, with interest, as the amount of a loan which she claimed to have made July 4th, 1874, to her husband, of her own money, received by her from her mother’s estate. On the 12th of October, 1875, the next of kin (who are the brothers and sisters of the intestate) filed exceptions to the account, and in December, 1876, those exceptions were referred to a master in chancery. By a final decree of the court of chancery, made May 30th, 1877, in a suit brought by the next of kin to set aside those transfers of stock as fraudulent, they were decreed to be fraudulent and void, and the administratrix was required to account in that court for any and all dividends received by her thereon, or upon any accumulations of capital stock thereon ; and was enjoined from selling, assigning, transferring or in any way encumbering or disposing of the stock or accumulations until the further order of that court. On the 11th of May, 1880, the master reported that the administratrix should be charged with a stock dividend, which was declared on the stock inventoried, and with the dividends received by her on both, and interest thereon, and that her claim for money lent and interest thereon should be • disallowed. She excepted to the report in both respects. The exceptions on both sides were heard in the orphans court in June, 1880, but the decree was not made until June, 1881. In December, 1880, tbe administratrix presented an affidavit to the court that the stock, which was appraised at par, had fallen in value, and was then worth only about seventy or seventy-five cents on the dollar, and that by the before-mentioned decree of the court of chancery, she had been, from the date thereof (May 30th, 1877), enjoined from disposing of the stock or its accumulations, and therefore had been compelled to hold it notwithstanding the depreciation, and she thereupon prayed that the court would credit her with the amount of the depreciation in ease it should confirm the master’s report with regard to the stock. The orphans court, by its decree dated June 1st, 1881, confirmed the .master’s report as to the stock and dividends, but not as to the loan and interest which it allowed, and refused to make allowance to the administratrix for the alleged depreciation of the stock. It also ordered that a counsel fee of $400 to each side and the costs of-all the proceedings upon the exceptions be paid out of the estate. These appeals bring its adjudication as to all those matters up for review, but the only subjects presented on the argument were, on the one hand, the refusal to allow the amount of the depreciation, and, on the other, the allowance of the loan and interest and the order for the payment out of the estate of a counsel fee to the counsel of the administratrix and the costs of the litigation — the next of kin insisting that the court should have ordered that the costs be paid by the administratrix out of her own funds, and that no counsel fee should be allowed to her. By the decree of the court of chancery the transfers of the'stock were, as before stated, set aside as fraudulent, and the title to the stock thereupon stood in the administratrix in her representative capacity as such, but she was enjoined from selling, assigning, transferring or in any way encumbering or disposing of the stock or of any part thereof, or of any part of the accumulations, until the further order of that court. It is true, leave was given in the decree to either party to apply to the court on the foot of the decree as occasion might require. But the bill in the suit stated that neither the stock nor its accumulations or dividends were needed for the payment of any debts of, or claims against the estate, and prayed that the administratrix might be decreed to hold the stock and accumulations and dividends as trustee or administratrix, for distribution to the next of kin of the intestate, in the final settlement of the estate ; and the decree not only required her to hold the stock and its accumulations and dividends, but required her to account in chancery for them. Under that decree she was justified in holding the stock for distribution and could not be held to have been derelict in her duty because she did not sell it, unless, indeed, she became aware, at any time after the decree, that the stock was likely to depreciate in the market, in which case it was her duty (as it was her own interest, also), as a trustee, to apply to chancery for leave to sell. If, however, she was not apprised of the probability of depreciation and had no reason to apprehend it, she incurred no liability to the next of kin on account of the depreciation, and it would be extremely unjust, under the circumstances, to visit upon her the consequences of the depreciation. The next of kin obtained the decree. They were not satisfied with setting aside the fraudulent transfers, but successfully sought to compel her to hold the stock for specific distribution for their own benefit. They themselves might, had they been aware of the probability of depreciation, have applied to chancery in the premises. The injunction which they obtained compelling her to hold the stock for specific distribution, and preventing her from disposing of it without an order of the court of chancery, no doubt prevented her, to a very great degree, from exercising her judgment in regard to it as she otherwise would have done, or, at least, prevented her from exercising it to the same extent. It appears, by her answer in the chancery suit, that she was aware, through advice of counsel, of the risk she ran in holding the stock as administratrix, unless authorized or required to do so. It is not at all improbable that under the injunction she regarded herself as free from that liability. She is entitled to allowance for the depreciation. The fact of depreciation seems not to have been disputed. The amount of it, however, appears not to have been established. It may be done here.

As to the next ground of objection: Apart from the testimony of the administratrix, the proof is clear that Dr. Greiner received about $4,000 of his wife’s money in the year 1874. Mr. Parker, the cashier of the Merchants National Bank, testifies that in that year Dr. Greiner brought to him a draft from Germany for about $4,000, and said it was his wife’s money. He says Dr. Greiner asked him to sell the draft for him, and he did so and deposited the proceeds to Dr. Greiner’s credit in the bank. It appears that Dr. Greiner asked his advice as to the proper kind of investment for it, and also said he wanted to keep his wife’s money separate from his own. The next of kin, while they do not deny that he received the money, insist that it was expended by him in paying off a mortgage upon certain real property in Newark, which he had bought and the title to which he had taken in the names of himself and wife. There is no evidence that that use of the money was authorized or confirmed or even known by her. When he received the money, which was her separate property, he became trustee of it for her, and was bound to account to her for it accordingly. Vreeland v. Vreeland’s Admr., 1 C. E. Gr. 512; Clawson v. Riley, 7 Stew. Eq. 348. If he applied it to the payment of the mortgage, the land was not her separate property, but belonged to both, and if he had survived her he would have been the sole owner of it as survivor. The payment, therefore, cannot be regarded as one made for the benefit of her separate estate. According to her testimony (which appears to have been given without objection as to its competency on this head), he received the money to invest it in bank or insurance stock for her. There is, then, no error in the decree of the orphans court on this subject. Only part of the exceptions to the final account was sustained, and it was a proper exercise of discretion to direct that the costs, including counsel fees of both sides, should be paid out of the estate. She, it may be remarked in this connection, is by law entitled to one-half of the estate, seeing that there are no children. The costs of the appeals on both sides will be paid oi$ of the estate.  