273 Pa. 565 | Pa. | 1922
Opinion by
In passing upon a complaint of the executor in this estate, an opinion has been this day filed sustaining the
Though costs of an audit are usually deducted from the fund for distribution, this is not an inflexible rule, and if it is made to appear that the court below has failed to exercise a reasonable discretion, relief may be granted: Lusk’s Est., 150 Pa. 517. The orphans’ court administers equity, and will consider all the circumstances presented in determining the question: McCullough’s Est., 26 W. N. C. 398. Only in case of an abuse of this power will its order be set aside. The whole of the charges will not be placed upon the accountant when the complaints against him are only in part sustained (Merkel’s Est., 131 Pa. 584), though there may be an apportionment of the expenses incurred: Fieser’s Est., 15 Pa. Superior Ct. 447; Harding’s Est., 24 Pa. 189. If the derelictions charged are merely due to clerical errors in the account (Yoder’s App., 45 Pa. 394), or even if a surcharge results from facts which show him, however, to be free from negligence or unfaithfulness to his trust (Young’s Est., 204 Pa. 32; Roth’s Est., 150 Pa. 261), no costs will be imposed upon him.
On the other hand, if the contest before the auditor was rendered necessary solely because of his wrong (Fieser’s Est., supra), or is entirely for his benefit (Martin’s App., 23 Pa. 433), then the same rule should apply as in the case of suits by other unsuccessful parties : LaBar’s Est., 181 Pa. 1; Bedell’s App., 87 Pa. 510. The placing of the expenses upon the one found to be in error tends to discourage improper litigation, and should be enforced in appropriate cases: Larimer’s App., 22 Pa. 41. When it appears the accountant is attempting to take an undue advantage of the estate for which he acts
The court below was of the opinion that this should not be done in the present case because actual fraud did not appear, but the facts did, disclose such misconduct as amply warranted an order that he be directed to save harmless the estate from expenditures made necessary by reason thereof: Price’s Est., 81 Pa. 263; Mulholland’s Est., 154 Pa. 491, 501. An examination of the record,— covering nearly two hundred printed pages, — will show that practically the entire proceeding was devoted to the. hearing of testimony bearing upon the claims which the accountant was improperly insisting upon, and with the amount of which he was surcharged. It would be grossly unfair to charge an estate of $12,542 with expenses amounting to $1,800, under such circumstances. This evidently was the thought of the learned court below, who, however, felt impelled to deduct the amount from the fund for distribution. He said: “Prom some points of view, considering the conduct of the accountant, it might be proper to impose part of the costs upon him, but when we consider that the appraisement which he made was not done secretly, but was made with the help of two clerks in his store, although we disapprove of the basis upon which he acted, yet we are not inclined to convict him of fraud.” This condemnation of the accountant was amply justified, but, in our opinion, the estate should not be compelled to bear the burden of his wrongdoing.
It is to be noted that in the last illness of Benjamin, the surviving brothers secured from him two contracts relating to the settlement of the partnership in case of his death, the first, providing for the sale of his interest at its net worth, and the second at a fixed sum of $10,000, admittedly much less than its value. Indeed, so unfair was the second agreement that no attempt was made to take
The voluminous testimony found in this case relates entirely to the unsustainable demands of the accountant. That his conduct was wrongful, if not dishonest, finds confirmation in the surcharge imposed upon him by the auditor, approved by the court below, and sustained here on appeal. Under these circumstances, it would be unfair to impose upon the estate an expenditure due solely to his acts. There is no reason why a party who presents an unfounded claim in the orphans’ court should not be compelled to pay the costs of his litigation, as does the losing party in proceedings at law; where it is made to appear the outlays are due solely to his wrong, the burden should be placed on his shoulders. This is such a
The assignments of error are sustained, the decree of the court below is reversed, and the record is remitted for further proceedings in accordance with this opinion, costs of the appeal to be paid by the appellee.