Estate of Burke

144 Pa. 190 | Pennsylvania Orphans' Court, Lancaster County | 1891

Opinion,

Me. Justice Steeeett :

Appellant presented to the auditor, appointed to distribute the balance in the hands of James M. Burke’s executors, a claim for his share of certain commissions, mentioned in the third specification of error and fully explained in the learned auditor’s report. It appears that said Burke and he were co-trustees in a trust under the will of Michael Malone, and that Burke received and retained the commissions, one half of which was claimed by appellant. The claim was resisted by the appellees, on the grounds (1) that appellant was not entitled to share in the commissions, because the work connected with the execution of the trust was done by Burke alone; and (2) that, if entitled to any portion of the commissions, appellant had settled with the executors, and received full satisfaction therefor since the decease of his co-trustee.

As to the first ground of defence, the learned auditor, after reviewing the evidence, says: “ A great mass of testimony was taken on this point; on the one side, to prove that Mr. Burke did all the work of the trust, and on the other, that Col. McGovern did his part, at least so far as Mr Burke gave him a chance ; ” and then substantially finds “ that, after the trust-estate had been placed in running order, the practical work was done by Mr. Burke ” and his attorney, but. that, in view of appellant’s responsibility, as eo-truste,e, and services rendered by him, he would be entitled to $163.92, if he has not already settled with the executors of Burke. After considering the evidence bearing on the question of the alleged settlement, the auditor states his conclusion thus: “ The auditor is therefore of opinion that Col. McGovern was entitled to share in the commissions to the extent above stated, but that his claim must be considered as fully settled since the death of his co-trustee, and that he is not now entitled to receive anything more out of James M. Burke’s estate. If we are wrong in our conclusions, the court will correct us.”

Three exceptions were filed by appellant, each of which was dismissed, and the report was confirmed by the court absolutely. Two of these exceptions are fully recited in the third and fourth specifications, respectively. The third has not been pressed. In neither of them is the correctness of the auditor’s findings or conclusions of fact distinctly questioned. Whenever it is intended to allege error, either in the findings of fact or in the conclusions drawn therefrom, such error should be clearly and distinctly specified. If that is not done, the court cannot be expected to notice them. In this case, however, the matters intended to be complained of were considered by the Orphans’ Court, and the conclusions of the auditor approved. We are not convinced that there was any error therein; on the contrary, we think the findings and conclusions of the auditor were warranted by the evidence before him. There appears to be nothing in the record that calls for a reversal or modification of the decree.

Decree affirmed, and appeal dismissed at the costs of appellant. ,