Casely's Estate

23 Pa. Super. 646 | Pa. Super. Ct. | 1903

Opinion by

Rice, P. J.,

Counsel for appellant state the principal question for decision as follows : “ Where a trustee under a will, himself personally collects rents and personally receipts the tenant’s book and personally attends to the repairs, is said trustee entitled to a credit on his account of five per cent commission as trustee, and also to an additional five per cent commission upon the rents collected alleged to have been paid a real estate agent ? ”

Having regard to the principles upon which commissions are allowed to a trustee, we do not see how an unqualified answer, either in the affirmative or in the negative, could be given to the question which would control in every case that might arise. Possibly a prima facie presumption in favor of a negative answer ought to be made. But be that as it may, we think it clear both upon principle and authority, that under some circumstances a commission of five per cent might be allowed properly to a trustee for the labor and responsibility devolving upon him, as well as a credit for a commission paid to a real estate agent for renting the property, collecting the rents and the performance of other duties usually devolving upon such agents. Speaking of this subject, Mr. Justice Paxson said: “ The services of an experienced rent collector might in many instances be highly beneficial to the estate and justify the additional expense; in others, wholly unnecessary. Five per cent commissions would be ample compensation to an executor in the case of a store, renting for §10,000 per annum, while ten per cent might be inadequate for a house renting for §100. Much depends upon the character of the property as well as its rental value. If old, out of repair and inconveniently located as to the residue of the testator’s property, the labor would be proportionably increased. All these and others that might be specified are matters of fact essential to a correct understanding and decision of the case: ” Woods and Martin’s Appeal, 86 Pa. 346.

In the case in hand, the trust property consisted of a number of small houses in the city of Philadelphia, in some of which the trustee had a one-third-interest, and in others a three-eighths-interest. In addition to his interest as trustee, the accountant had also a personal interest. The real estate agent also had an individual interest. The trustee, together with the other owners, some of whom had only a twenty-fourth-interest, engaged the real estate agent to lease the properties, collect the rents, pay the bills, and make distribution among the parties in interest. It is true that some of the rents were collected by the trustee personally, and it is not clear to us that the amounts so collected could not be definitely ascertained from the evidence; but in order to carry out the agreement between him and the other owners, it seems that these collections were turned over to the agent and distributed by him as above stated.

Having regard to the number, character and situation of the properties, the number of' owners, the amount of the rents, the period during which the labor and responsibility devolved upon the trustee, we cannot say that the court erred in allowing him the commissions claimed by him or the commissions paid to the real estate agent. The compensation of a trustee of any character may often be arrived at by computing the percentage on the amount of the receipts and disbursements. “ But after all, on all authority, it is a question not of percentage but of compensation. When the court has fairly responded to the interrogatory, how much has the trustee earned ? it has discharged its whole duty in the premises. It therefore comes to nothing to say the percentage is large or the percentage is small as compared with the estate, if the executor has received neither less nor more than what his services are worth: ” Montgomery’s Estate, 86 Pa. 230.

The learned judge who spoke for the orphans’ court in overruling the exceptions to the adjudication in the present case, said : “ The fact that the trust estate is held jointly with other owners, explains very satisfactorily the reason for the allowance of commission to the agent having charge of the collection of the rent of the joint property whose rights in this respect are not affected by reason of collections having in the first instance often been made for him by the accountant. The latter was only entitled to receive from him the proportion belonging to the trust estate, and having so received it, became in turn entitled to the commissions usually allowed to a trustee.”

We concur in this conclusion as well as in the conclusion that no dereliction on the part of the trustee has been shown for which he should forfeit his commission. As to counsel fees allowed the accountant, we remark that no testimony was adduced by the appellant for the express purpose of showing their unreasonableness, the account was voluminous, the services of the trustee extended over a period of nearly ten years, and the matter was vigorously contested before the auditing judge and upon the hearing of the twenty-seven exceptions to his adjudication. The court upon a view of all the circumstances, and with much better opportunities than we have for determining the question, held that the credit claimed was not unreasonable. Such a finding ought not to be overruled on appeal, except for clear error. We find nothing of that kind here. See McKown’s Estate, 17 Pa. Superior Ct. 253, and Kalbfell’s Estate, 17 Pa. Superior Ct. 255.

In view of the foregoing conclusions, it seems unnecessary to discuss in detail the twelve original and the twenty-five additional assignments of error. The case depends very largely upon the auditing judge’s findings of fact; and after a very careful examination of the evidence, we are unable to conclude that any of them requires modification to such an extént as would change the result.

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