Estate of Bracken

138 Pa. 104 | Pa. | 1890

OpinxoN,

Me. Justice Green :

By tbe distribution of the fund in the bands of the accountant, as made by the auditor, James S. Bracken, the appellant, was awarded a share of the estate of the decedent. He was allowed an equal share with the other legatees of the testatrix. After exceptions were filed to the report, the distribution made by him was confirmed by the court below, but the ground upon which the confirmation was placed was, that James S. Bracken was the only exceptant, and he had no status to file exceptions, had no interest in the estate, and therefore could not be heard to complain. We cannot understand this view of the case. An equal distributive share of the estate was given to the appellant by both the report of the auditor and the decree of the court, and of course he was interested in the estate to the extent of his share. As the distribution was of the whole balance in the accountant’s hands, and in equal shares, the amount to which the appellant would be entitled would depend upon the amount of the fund. If it was more, the appellant’s share would be larger; if it was less, his share would be smaller. Undoubtedly, he was interested in the amount of the fund, and therefore had a lawful right to participate in its distribution, and to increase, if he could, the proportion coming to him. As a necessary consequence, he had a right to except to the findings of the auditor, and to have his exceptions heard by the court. -This being so, it is our duty to consider and determine his assignments'of error.

One of them was the allowance of fees to counsel for the executor for services in attending before the auditor. The auditor was appointed merely to make distribution. The account of the executor was confirmed without objection, and hence there was no contention before the auditor in which the executor had any interest. Being a mere stakeholder, the distribution of the fund in his hands was a matter of no concern to him, and he could not be heard before the auditor. It follows, that it was error in the auditor to allow the item of fifty dollars for services of counsel for the executor in the proceedings on the audit. The sixth assignment of error is therefore sustained.

By the terms of the codicil to the will of the testatrix, her daughter, Catharine J. Davis, was charged the sum of three hundred dollars for raising her child, and it was directed that this sum should be taken from the legacy given to her by the will: The codicil was duly probated after the will had been proved, and there being no appeal or other adverse proceeding to set it aside, it must be regarded as a part of the will of the testatrix. That being so, there is no option to disregard it, and its terms must be enforced. The family agreement was made before the codicil was proved, and related only to the will. Moreover, it was not signed by Catharine J. Davis, and has no effect as to her. It was signed by five of the six legatees of the residue, and as to them it must have operation. It follows that the first three assignments of error must be sustained, and Catharine’s legacy of three hundred dollars in excess of her share, as given by the will, must be regarded as taken from her by the codicil.

Another exception was taken to the compensation charged bjr tire auditor. The whole amount of the fund for distribution was |1,102.8B, and the auditor charged $115 for his services. There were but six meetings before the auditor, when testimony was taken, and the whole of it could have been taken at one sitting. Much of it was entirely incompetent and should have been rejected. The questions to be decided were very simple, and required but little time for their consideration and decision. For the distribution of such a small estate, attended with so little trouble to the auditor, we think a charge of $115 is excessive. We consider that the sum oh $65 will be an adequate compensation, and we therefore fix it at that amount. In restating the account, the item of $50 for services of counsel for the executor, before the auditor, must be stricken out, and the same amount must be deducted from the fees of the auditor. This will increase the fund for distribution by the sum of $100. In making distribution, the legacy of three hundred dollars to Susan must first be deducted. The balance must be divided by six, representing Susan, Caroline, Margaret, Joanna, Elizabeth and Catharine J., and one sixth of the amount must be given to Catharine J. • The amount then remaining must be divided equally between Susan, Caroline, Margaret, Joanna, Elizabeth and James S. Bracken, the appellant, or his assignee, if he has assigned his share.

The decree of the Orphans’ Court is reversed at the costs of the appellees; and the record is remitted, with instructions to re-state the distribution in accordance with this opinion.