176 Pa. 373 | Pa. | 1896
Opinion by
The appellant filed an account as executor of W. H. Kern, deceased, early in 1894, which came up for audit before Judge Hanna of the orphans’ court in June, 1894. Loper, the appellee, presented at the audit a claim against the estate of $2,000 which was allowed, and to which as we understand no exception has been taken. The executor however presented his petition to the orphans’ court setting forth that Loper had in his possession certain stock belonging to the estate which he refused to surrender and for which he had paid no value to the decedent in his lifetime, or to his estate since bis decease, and asking that payment of the money awarded to him should be suspended until the said stocks, assets of the testator, should be delivered up to him, the executor. An answer was filed in which Loper admitted that he had in his possession sixty-six shares of stock in the Knickerbocker Ice Company which still stood on «the books of said company in the name of William H. Kern; but he alleged that said shares belonged to him, and stated the facts out of which his title arose. These were substantially as follows. Loper had been the founder and organizer of a business establishment called “ The Guarantors of Pennsylvania.” As such, he held, not for his own use, but for the use of the Guarantors Company, three promissory notes for money due upon subscriptions to the stock of the company given by Wm. H. Kern, Howard R. Kern and Walter R. Kern, respectively for $919.12 each. These notes were dated on the 1st of February and were due in nine months. The answer alleges that Howard Kern was the attorney in fact of his father who was in feeble health, and that in March, 1893, Howard indorsed
The power of Howard R. Kern was therefore at an end when the arrangement for the payment of the notes was made by him, and the stocks subject to any valid pledge that may have been made of them were a part of the assets of the estate of Wm. H.. Kern. Second, if the conclusion just stated was debatable, the use of this stock under the power of attorney to pay debts for which the decedent was not liable was a misappropriation of them. An attorney in fact can lawfully use the property of his principal only in the business of the principal. The use of such property for the payment of his own debt or that of any other person is not authorized by the power. In this case Loper knew of the ownership of the father. He saw the power of attorney. He was bound to know that it conferred ím power on the attorney except in the business of the principal. He knew that two of the notes were not the debt of the principal. He
If the stock in the Guarantors Company issued in exchange for Wm. H. Kern’s note is claimed by Howard R. Kern, that is a question to be settled between him and the petitioner. He must restore it to Ms father’s estate unless he can show a valid transfer from his father to himself.