Bruner's Appeal
57 Pa. 46
Pa.
1868
Check Treatment

The opinion of the court was delivered, by

Agnew, J.

These appeals arise out of the same account and decree, and will therefore be considered together. We think the auditоr, who was followed by the court in this respect, erred in not making any charge of interest against Gray, the executor. The balance of the first аccount clearly bore interest from the time of its final confirmation: Withers’s Appeal, 4 Harris 151. Nor was the executor exempt from interest fоr the whole time from the filing of the account on the 4th of March 1861, until the 6th of January 1865, the date of the confirmation. It is true that the settlement and final сonfirmation of the account was prevented by the filing of exceptions and reference of the case to an. *52Auditor. But it by no means follows that an executor may suffer ■ so large a balance as $6754 to lie in his hands totally unproductive for five years: Yundt’s Appeal, 1 Harris 575. It was his duty to invest it, or at least to have prayed the direction of the Orphans’ 'Court upon the subject while the litigation was pending.Besides, it seems to be very manifest that the suspension of the proceedings was not .owing to active litigation during all this long interval. The proceeding before the auditor sеems to have slept awhile, then to have been resumed, and finally to have gone into tbe bands of another ‍​‌‌‌‌​​​‌​​‌​​​​​‌‌​​‌‌‌​​​‌​‌​‌‌​​‌‌​‌‌​​​‌​‌‌‌‍auditor. It was tbe duty of the auditor on tbe final account to have investigated tbe facts, and to have charged tbe executor with interest for so much of tbe time as tbe circumstances would warrant. It was tbe duty of tbe executor also to have furnished tbe dates of tbe receipts of tbe sums paid to him by Baumgardner and оthers. They amount to over $7000, and were received after tbe first account was filed. It will not do for an executor or administrator to charge himself with such receipts, and to avoid interest by omitting to furnish tbe dates. This is not such a transaction as tbe maxim de minimis would apply to. Tbe error must be corrected by remanding tbe report to the same or another auditor to inquire into tbe facts, and make such charge of interest as tbe circumstances will warrant.;

We think tbe court below disposed of tbe payments made by tbe executor to tbe heirs of Samuel J. Packer, deceased, correctly, under tbe circumstances. Tbe first payment of $1000, made July 23d 1860, to John B. Packer, Esq., was properly rejected. It is very evident that Gray, tbe executor, who was also devisee of one-balf of tbe estate .which was tbe subject of compromise with tbe heirs of Samuel J. Packer, mаde tbe arrangement for tbe one-balf of the Packer claim upon this property on bis own account as devisee and legateе, and not as executor for tbe benefit of all tbe parties in interest. ‍​‌‌‌‌​​​‌​​‌​​​​​‌‌​​‌‌‌​​​‌​‌​‌‌​​‌‌​‌‌​​​‌​‌‌‌‍He took a deed from tbe Packers to himself individually for one-balf of their interest, and without any reference whatever to bis co-legatees or bis own office as executor. This was done, and tbe money paid before be settled bis first account, and be claimed no credit in that account on tbe money thus paid. It was not until 1866, when be came to sdfctlе bis final account, that be concluded to claim credit for tbe payment six years before. It is now too late to change tbe manifest сharacter of the transaction, and ask to charge this sum against bis co-legatees, as its effect would be.

And we think tbe court was -right in allowing him a сredit for. tbe second sum of $1000 paid Mr. Packer to compromise tbe remaining interest. All tbe facts reported by tbe auditor show that tbe payment was honestly, and fairly made in tbe exercise of a judicious discretion for tbe bond fide purpose of compromising an ejectment-brought by tbe heirs of Samuel J. Packer for a part of *53the land sold by the testator to Baumgardner, which, if successful, would have been a good defence by Baumgardner to the payment of a proportional part of the debt in the mortgage given for the purchase-money. The only plausiblе ‍​‌‌‌‌​​​‌​​‌​​​​​‌‌​​‌‌‌​​​‌​‌​‌‌​​‌‌​‌‌​​​‌​‌‌‌‍objection made to this is that urged before us that the Packer claim had been decided by this court, and therefore was so unfounded, it should have been disregarded by the executor. It is true it was decided in Gray v. Packer, 4 W. & S. 17, that the writing under which Samuel J. Packer claimed was an executed conveyanсe, and passed but a life estate, which had ended by the death of Mr. Packer. But this •did not end controversy, the heirs of Mr. Packer having the power to bring another ejectment, and prosecute it to verdict and judgment, and to take the opinion of this court upon the writing a second time.

In the report of Gray v. Paсker it appears that the opinion of the court was founded wholly upon the' paper itself, no surrounding or supplementary circumstanсes being given. The paper ‍​‌‌‌‌​​​‌​​‌​​​​​‌‌​​‌‌‌​​​‌​‌​‌‌​​‌‌​‌‌​​​‌​‌‌‌‍on its face is by no means free from all doubt, .yet if the case had again appeared here p»ecisely in the same attitude, this court,governed by the rule of stare decisis, would have pronounced the same opinion. But it was impossible for the executor to say that the ease would come up in the same shape. It might have assumed a very different aspect, as he was justified by the subsequent decisiоns of this court in believing. It was only two years after the case of Gray v. Packer, the same judge, in Kenrick v. Smick, 7 W. & S. 41, said that the character of the instrument, whether executed or exeсutory, must depend not on any particular words or phrases that are found in it, but on the ‍​‌‌‌‌​​​‌​​‌​​​​​‌‌​​‌‌‌​​​‌​‌​‌‌​​‌‌​‌‌​​​‌​‌‌‌‍intention of the parties as collected from the instrument itself, and where that is doubtful from the circumstances attending. After this came the cases of Williams v. Bentley, 3 Casey 294, Ogden v. Brown, 9 Id. 247, and Stewart v. Long, 1 Wright 201, in which words of present grant and conveyance wеre controlled by the supposed intention drawn from the nature of the acts to be done by the vendee, and the 'writings pronounced to be еxecutory only. Looking at the writing between Gray and Packer in the light of these decisions, and adverting to the fact that it was given upon a proceeding not yet terminated for professional services to be rendered as well as ren■dered, that the subject of the grant was wholly uncertain, depending upon the result of the verdict, whether anything, and how much, would be recovered, it certainly was a matter calculated to cause a prudent man to doubt, and doubting to prefer a fair compromise to the uncertain result of litigation, with its attending expenses. This is a easе between the executor and the legatees, and therefore to be decided upon a more liberal view of his discretion than as against creditors: McNair’s Appeal, 4 Bawle 148. *54Upon all the circumstances, we think the court was right in allowing the credit for the second sum of $1000 pаid Mr. Packer.

The decree of, the Orphans’ Court is reversed as to the refusal to charge the executor, Peter W. Gray, with interest, and the reрort of the auditor is ordered to be remanded to him, or to another to be appointed in his place, for the purpose of inquiring into аnd charging the said executor with so much interest upon the moneys in his hands before the final settlement of his account as the facts shall apper to him to warrant.

The residue of the decree is affirmed, and Peter W. Gray is ordered to pay the costs of these appeals.