Breneman's Estate

150 Pa. 494 | Pa. | 1892

Opinion by

Me. Chibe Justice Paxson,

A careful examination of the numerous specifications fails to disclose error. The attempt to surcharge the account of the assignee with the sum of $2,000, and interest thereon, for the reason that he should have sold the real estate for that much more than he actually received, was ungracious. The evidence shows that he acted with prudence, and that he endeavored to get the best possible price for the property. It consisted of a large farm, heavily encumbered, and failing to get a satisfactory bid at public sale, he sold it afterwards at private sale for $144.50 an acre, which was an advance over previous offers. The fact that the purchaser resold it at an advance of $2,000 is no reason why the assignee should be surcharged with that sum.

The attempt to surcharge him with $1,107.47, the value of the tobacco raised upon the farm, has, if possible, even less merit. The assignment was made on March 26, 1888, a time of year when it is practically impossible to sell a farm, and extremely difficult to rent it. The assignee took upon himself the labor and risk of farming the place for the year, and has accounted for the proceeds. He permitted the assignor to remain in the house, and allowed him to cultivate one of the fields with tobacco. -The crop thus grown by the assignor, was subsequently sold by him for $1,107.48, and with this sum the creditors now seek to surcharge the assignee. The absurdity of this attempt to surcharge is apparent. The tobacco was the result of the labor of the assignor and his family, with perhaps the aid of hired help. It belonged to him, and neither the assignee nor the creditors had any rights in it. The most that the assignee could be surcharged with, if he were liable to a surcharge at all, would be the rent of the ground upon which the tobacco grew; but it is well settled that the assignee is not liable to be surcharged with even this. In Detwiler’s Appeal, 96 Pa. 828, it was held that a voluntary assignment for the benefit of creditors does not impose upon the assignee any duty to let the real estate, and, where the assignee permits the assignor to remain in possession, and use the real estate, he is not chargeable with the rental thereof. This is good law as well as common sense. It applies with especial force where the subject-matter of the assignment consists of a large farm, and the assignment itself is made at a time of the year when the farm can neither be sold nor rented. What is the assignee to do in such case? The assignor has a right to remain until the farm is sold. The deed of assignment authorizes its sale, and while this might include the power to lease under some circumstances, it is rarely if ever done, as assigned estates are usually closed up within the year. It would have been as reasonable to surcharge this assignee with the market value of the vegetables, raised by the assignor in his garden, as to surcharge him with the price of the tobacco, raised in the field. The latter was a. mere mode by which the assignor was able to obtain bread for his family, pending the settlement of his estate.

The allowance of the claim of Kate L. Breneman, the wife of the assignor, appears to have been entirely proper. The auditor finds that -the claim was bona fide, and that it was shown to be a part of her separate estate.

In the ninth specification complaint is made of the accountant’s commissions, which were five per cent upon the personal and two and one half on the real estate. The personal estate appears to have amounted to a trifle over $3,300, and the real estate to $31,394.43. We regard the commissioners as entirely reasonable, and within the rule designated by this court; especially in view of the fact that the accountant has turned over to the assigned estate the sum of $2,293.71 as the produce of the farm while in his hands.

The remaining specifications need not be referred to.

The decree is affirmed and the appeal dismissed at the costs of the appellant.