165 Pa. 330 | Pa. | 1895
Opinion by
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
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.
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
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.