Estate of Webb
30 A. 827
Pa.
1895
Check Treatment

Opinion by

Mb. Justice-Green,

It is rather surprising that after two express decisions of this court to the contrary, the auditor and court below should have refused a credit of $120 paid by the accountants for the erection of a tombstone over the grave of the testator. Both McGlinsey’s Appeal, 14 S. & R. 64, and Porter’s Estate, 77 Pa. 43, decide explicitly that an allowance for such an expenditure is entirely proper, and credit for it should be given against the estate of the decedent. In the former of these cases the expense was incurred by an administrator, in the latter by executors, and in both the credit was allowed without the slightest hesitation. In Porter’s Estate, Mr. Justice SharsWOOD, delivering the opinion, said, “ This court has recognized the expense of a suitable tombstone over the grave of a decedent to be a legitimate item of credit in the accounts of an executor, even when no provision on the subject was made in the will of the testator.”

In the present case the credit claimed for this purpose was only $120, which was entirely reasonable and proper in any point of view. Wynkoop v. Wynkoop, 42 Pa. 293, contains nothing in conflict with the case above cited. This question did not arise there, and in any event the act of burial includes all the usual incidents of decent burial, of which one, at least, is the erection of a suitable tombstone.

As to the surcharge of the amount of the Curry judgment *335we are of opinion it should not have been made. The loan was made by the decedent who took a judgment note for it, payable five years after date, and it did not mature until January 11, 1894. The decedent employed Mr. Graham, a member of the bar, to enter the judgment, and Mr. Graham did so and entered his appearance for the decedent as plaintiff in the judgment. The record remained in this condition until the death of the decedent, Avhich occurred in 1890. The executors employed Mr. Graham as their counsel in the settlement of the estate. During the life of John Webb the interest was paid to him as it fell due, and after his déath several interest payments were made to the executors. In January, 1892, the last of these payments of interest was made to the executors, and Mr. William M. Webb, one of the executors, then told Mr. Curry, the judgment debtor, that they would need some money to pay legacies, and supposed they would have to sell the judgment. Mr. Curry then told Mr. Webb that he would like to have the opportunity of paying the judgment and said he thought he could pay it. Mr. Webb then told Mr. Curry that Mr. Graham was their attorney and he should see him about it, and arrange the payment as soon as was convenient. Afterwards, about January 26,1892, Mr. Curry paid the money to Mr. Graham who thereupon satisfied the judgment of record.

The executors filed their first account on February 18th, 1892, and did not charge themselves with the money paid hy Curry to Graham. They filed another- account on August 5th, 1893, and it was on the audit upon this accouut that the auditor was asked to surcharge the executors with this money. At the meeting before the auditor on October 12th, 1893, both of the executors testified that they had no knowledge of the payment of the money due on the Curry judgment, either when it was paid or afterwards, until they heard of it on that audit. That Graham had never told them of it but had said he could have the money when the account was confirmed. They also testified that'Graham was their counsel throughout the settlement of the estate.

It cannot be doubted that the payment to Graham was a good payment and that the accountants could not be charged with supine negligence for permitting the payment to he made or for not collecting it from him if he was insolvent, and on that account they were unable to collect it.

*336The leading case in Pennsylvania on this subject is Calhoun’s Estate, 6 Watts, 185. There the testator had recovered a judgment against solvent debtors and held it at the time of his death. The executors issued a sci. fa. to revive, employing the same counsel who had been employed bjr the testator. Judgment on the sci. fa. was obtained, execution issued and certain lands were levied upon and condemned as the property of the defendants in the judgment. Nothing further was done for several years when another sci. fa. was issued and to that the surviving defendant pleaded payment with leave, and then that proceeding rested. Subsequently other proceedings were had which so resulted that if the money was collected by the counsel of the executors it was embezzled by him, and if not it was lost through his neglect in conducting the proceedings. Testimony was given to show that the attorney had collected the money and used it himself. On the settlement of the executors’ account an attempt was made to surcharge them with the money lost. The orphans’ court surcharged them but this Court reversed the decree and held that the executors were not liable. Mr. Justice Rogers, delivering the opinion, said, “ Thus executors, administrators or trustees acting with good faith, and without any willful default or fraud, will not be responsible for any loss that may arise. All that a court of equity requires from trustees is common skill, common prudence and common caution. Executors, administrators or guardians, are not liable beyond what they actually receive unless in case of gross negligence; for when they act as others do with their own goods and with good faith, and not guilty of gross negligence they are not liable: 1 Penns. Rep. 213, Konigmacher, Appellant, v. Kimmell, Assignee; Thompson v. Brown, Fay and others, 4 Johns. Cha. Rep. 619. A court of equitjr, as is said in Thompson v. Brown, always treated trustees, acting in good faith, with great tenderness. ... In Routh v. Howell, 3 Ves. 567, the same point was ruled. Executors were discharged from liability for a loss arising from the insolvency of a banker whom the testator had trusted and with whom they suffered stock, deposited by the testator, to remain. This principle has an exceedingly strong bearing on the case in hand.” Speaking of the action of the executors it was further said, “ They reposed confidence where the testator had reposed it; for it *337must not be forgotten that Mr. Wright was the counsel selected by the testator himself. . . . Nor can it affect the liability of the executors whether Mr. Wright received the money or not, nor in what capacity he received it, as they had a right to repose confidence in his skill. The money was lost by his mis conduct, and the cases cited show that trustees who act with good faith, are not liable for such mismanagement of their agents as they can neither foresee nor control.”

All of the foregoing has been many times affirmed by this court and it is the undoubted law of the commonwealth to-day.

In Moore’s Appeal, 10 Pa. on page 438, we said, “ The general rule unquestionably is that a trustee is not liable for moré than he receives of the profits of the estate, for he is considered in the character of a stakeholder or bailiff. If you wish to surcharge him beyond the actual profits, you must prove satisfactorily supine negligence or willful default.”

In Chambersburg Saving Fund’s Appeal, 76 Pa. 203, we said, “ It is well settled that a trustee shall not be surcharged for a loss which has occurred, in case he has exercised common skill, common prudence and common caution ; but for supine negligence, or for willful default he shall be held responsible,” citing several cases.

In Landmesser’s Appeal, 126 Pa. 115, a guardian placed a claim in the hands of an attorney, at the time of good standing, for collection. The attorney having collected the money and embezzled it, gave the guardian his judgment note for the amount which proved worthless by reason of the maker’s insolvency. In such case the fact that the guardian declined to incur costs in a fruitless effort to enforce payment of the note by ordinary process, or to apply to the court for a rule on the attorney, or to institute a criminal prosecution against him, was not such negligence as would warrant a surcharge of the amount of the note.

Without further reference to the adjudicated cases, and recurring to the facts of this case, we do not perceive thus far sufficient evidence of supine negligence on the part of these executors to justify a surcharge of the amount in the hands of their attorney. They were guilty of no negligence in allowing him to receive it. He was trusted by their testator and their trusting him was no proof of negligence. They were guilty of *338no willful default and of no fraud. They did not know the money had been collected by him at the time, even when their last account was filed, and at the time of the audit they had ho sufficient opportunity to enforce collection from him by adverse proceedings. They testify that he assured them the money would be forthcoming when the account was confirmed. While that is no excuse for his not paying over the money, it is a reasonable excuse for their not having it at the moment they discovered he had received it, and even at the close of the audit. It is true the orphans’ court referred the matter back to the auditor to hear further testimony, and such testimony was taken in May, 1894. The accountants were then examined in relation to this matter and they gave full testimony upon the whole subject. But for some unaccountable reason they were not asked, by counsel on either side, what was the reason they had not collected the money from Graham, nor whether they had or had not taken any steps to collect it, nor whether Graham was insolvent. This was dereliction on the part of counsel on both sides for which we do not feel disposed to surcharge them at this time. As the asset is one that has not yet been administered it is still the subject of a future accounting to which the executors may yet be summoned by citation, when the whole subject can, and certainly ought to be thoroughly investigated, especially the question-of Graham’s solvency. We only decide now that on the present state of the record we do not think the executors should be surcharged with this debt. Should they fail to show hereafter that they could not have collected the money after they were informed of its payment to Graham, a very grave question as to their liability to be surcharged will arise. If any false sentiment about exposing the insolvency or dishonesty of their own attorney should deter them from a thorough exhibition of the matter they must take without complaining whatever consequences may result.

The decree of the court below is reversed and the record is remitted with instructions to restate the account in accordance with this opinion, the costs of this appeal to be paid by the appellee.