218 Pa. 344 | Pa. | 1907
Opinion by
David Graham died in Philadelphia on September 21, 1871, leaving a last will which was proved September 30, 1871. Letters testamentary were granted to David Young, David Graham, Jr., and Theodore R. Graham, the executors named in the will. The testator was survived by his seven children. The will, after directing the payment of his debts and a small annuity, gave the residue of the estate, real and personal, to the executors and trustees and the survivor of them, in trust to collect the rents and interest therefrom and pay the net income to his seven children in equal shares. Upon the decease of any or all of testator’s children, leaving lawful issue, the will gave to such issue, upon their respectively arriving at lawful age, such share as they respectively would be entitled to under the intestate laws. The estate given to the issue of a deceased child was to be held in trust, and the income appropriated to the support and education of such issue during minority. The executors and trustees were authorized to sell and convey all or any part of the estate whenever in their judgment it would be for the benefit of the estate, and directed to invest the proceeds in first bonds and mortgages of the United States, or State of Pennsylvania, or Philadelphia. On October 30, 1871, the executors filed an inventory and appraisement of the estate, consisting of household furniture, mortgages, stocks, bonds and good loans, amounting in the aggregate to $246,501.40. David Graham, Jr., one of the exucutors, died July 4, 1886; David Young, another of the executors, died October 4, 1890; Theodore R. Graham, the remaining executor, was dismissed from his office as executor on May 13, 1896. None of the executors ever filed.an account. On May 14, 1896, letters of administration d. b. n. c. t. a. on David Graham’s estate were granted to the Commonwealth
Theodore R. Graham, surviving executor, failed to. file an account, and on December 2, 1896, the court appointed an auditor to take proof and state an account for him as executor. On January 18, 1902, the report of the auditor was confirmed showing a balance due from the executor to the estate of $149,675.51.
On May 27, 1902, the administrator and certain legatees again presented a petition asking for a citation on the executors of David Graham, Jr., deceased, and of David Young, deceased, to file accounts of their decedents as executors of David Graham, deceased. From the grant of.letters testamentary, September 30,1871, to the time of the death of David Graham, Jr., and David Young, respectively, it was alleged in the petition that the executors and trustees had been guilty of the grossest mismanagement and direct violation of their duties, and “ were supinely negligent of their duties in failing to inquire as to the assets or securities, the investments or reinvestments of the estate; in putting it in the power of their coexecutor and trustee to embezzle and defraud, and in the culpable omission of every duty which the acceptance of the trust demanded.” It was further averred in the petition, that the embezzlements from the estate began within three years of the assumption of the trust by the executors and trustees, and in 1890, at the death of David Young, had reached the amount of $140,000. Answers to the petition were filed by the executors of Graham and Young respectively, denying the allegations of mismanagement and embezzlement, admitting that Graham and Young had not filed accounts as executors of David Graham’s estate, and alleging that the respondents were without information of the condition, conduct or management of the estate of David Graham, deceased, prior to the death of David Graham, Jr., and David Young. The answers averred that Young and Graham, as executors and trustees, never had any of the funds or assets or any of the accounts of the estate of
The appellants deny the authority of the court, under the circumstances, to compel the representatives of the deceased executors to file an account; they allege that the auditor erred in not stating the account of all three of the executors to July 4, 1886, the date of David Graham’s death, and the account of the two surviving executors from that date to October 4, 1890, when Young died; that the auditor erred in charging each of the executors of David Graham, Jr., and of David Young with interest covering the same period; that the auditor erred in not requiring the interest payable to Theodore R. Graham, the defaulting executor and trustee, to be withheld from him or his assigns and applied to the payment of his indebtedness to the estate; and that the auditor erred in holding that there was any balance of principal unaccounted for by either David Graham, Jr., or David Young. The appellants further alleged that there is error in the order made by the court to pay the amounts found to be due from the deceased executor.
We have here two appeals, with the same facts presented in each. For purpose of discussion they may be considered together.
From the state of facts above made these conclusions result:
1. Upon the death of David Graham, Jr., in 1886, the entire control and management of the trust estate devolved upon the surviving trustees. The estate of David Graham, Jr., was
2. Upon the death of David Young in 1890, the entire control and management of the trust estate devolved upon Theodore R. Graham, the sole surviving trustee. David Young’s estate was then at law discharged from liability in connection with the trust, except at the suit of the surviving trustee. As in the case of David Graham, Jr., not only does the presumption that David Young owed nothing to the trust estate obtain, from the fact that the surviving trustee, upon whom the law then cast the entire liability, never made any claim or demand upon his estate, but here again it is admitted that no portion of the trust estate passed into his hands.
3. Presumably the entire estate after the death of David Young was intact in the hands of Theodore R. Graham, and so continued until his discharge in 1896. Certainly this was the measure of his liability. “ Upon the death of one of the original trustees the whole estate, whether real or personal, devolves upon the survivors, and so on until the last survivor ; and upon the death of the last survivor, if he has made no disposition of the estate by will or otherwise, it devolves upon his heirs, if real estate, and upon his executors or administrators if it is personal estate. The title in the surviving trustee is complete, and no breach of trust after the death of his co-trustees can be charged upon their estate, nor can the representatives of his cotrustee interfere with his management of the trust estate, even if he is insolvent or unfit for the trust: ” Perry on Trusts, sec. 343.
4. While the death of David Graham, Jr., and David Young
5. Now, applying these general principles, we have here an account stated by an auditor charging the estate of David Graham, deceased, with $175,637.49, the entire value of the trust estate at the time of his death; and an account charging the estate of David Young with $216,107.66, the entire value of the estate at the time of his death. Since it is an established fact that not a dollar of the trust passed into the estates of either Graham or Young, these charges to have any warrant at all must rest upon some equitable considerations sufficient to move the conscience of a chancellor. Did the insolvency of Theodore R. Graham occur during the lifetime of either David Graham, Jr., or David Young? Not only is there no such finding, but, so far as we can see, there is no evidence upon which an affirmative finding of such fact could rest. Even were it otherwise, without more, it would not warrant a charge against Graham and Young for the entire estate. "What was their negligence in the matter that occasioned or contributed to the loss ? The question is not what was their neglect of duty generally, but how did their failure to do anything that duty required of them produce the result to the estate ? Did either know or have reason to know that his co-trustee, who was as much entitled to the custody of the funds as himself, was insolvent or likely to become so ? When did
The contention of the appellees is, that Theodore R. Graham began to misapply the funds immediately upon his' appointment, and that he continued so doing until the sum total of the misappropriation at the time of the death, of Young amounted to $87,725. The assertion has nothing to support it, except the fact that during all this period Theodore R. Graham, as trustee, had been from time to time, with the as
In view of our conclusions the other questions so elaborately argued as to the effect of the lapse of time upon the right to demand an accounting, and the power of the court to decree a payment of the balance found due on the accounts directly to the successor in the trust, need not be considered. We rest our determination in the case wholly upon the ground that the record discloses nothing which in equity and good conscience requires an accounting by either estate here involved. Whether upon the showing made before the lower court, there was sufficient to call for the appointment of an auditor to state these accounts, we need not decide. It is enough to know that from the facts found by the auditor no liability to account results. The effect of our ruling will be to terminate the proceeding.
The exceptions, so far as they question the sufficiency of the findings of the auditor for the accounts stated by him against these several estates, and the decree of the court confirming the same are sustained. The decree is reversed.