Haberman's Appeal
101 Pa. 329
Pa.
1882
Check Treatment
Mr. Justice Gordon

delivered the opinion of the court, November 20th 1882.

From the records of this case, which, we are obliged to say, are not as full and perfect as they might have been, we gather the following: — Peter Haberman, the appellant, as executor of *332Mrs. Gertrude Zweidinger, found himself in possession of the Stock in trade of a musical establishment, which had been conducted by the testatrix, during her life, with the aid of her minor son, John O. Zweidinger. This stock was inventoried at the sum of $13,757.84 and was turned over at that price to this minor son. Tire executor seems at that time to have taken no security for the goods thus disposed of, but a mortgage of one Weiland, -which he afterwards, in a trade of his own with Wei - land, satisfied. But subsequently, when John C. Zweidinger came of age, llaberman took from him a judgment note in amount equal to the inventory as above stated. He also, as it appears, received from him assignments of leases, notes, &c., on which he realized some $14,460. In addition to this he received in cash, from Zweidinger, some $2,700. It is thus apparent that the executor had, from time to time, in his possession, money enough, and more than enough, to have paid the claim of the estate in full, and had lie acted faithfully, and discharged his trust as he ought to have discharged it, he would have delivered himself from the troubles which now beset him. But in the meantime he allowed Zweidinger to become largely indebted to himself, and upon this indebtedness he applied all the moneys which he had received. So it was, that in March 1876, when Zweidinger’s creditors began to press him, the debt of the estate was not paid. Under the pressure of these circumstances, llaberman caused an execution to be issued upon the judgment which he held for the estate, had a levy made upon, and sale of, Zweidinger’s goods, and bid them in for $2,220.15.

Upon resale these same goods brought him $5,400, and for this amount, in his second account, he charges himself as “ realized out of stock in store.” But it is remarkable that in this second account he omits to charge himself with the Zweidinger claim, which, in the previous account, he had credited as uncollected. There is also another remarkable circumstance in this transaction: that is, whilst in the present, or third account, the appellant exhibits a balance against himself of but $1,062.67, his counsel admits that he is properly surchargeable with $12,665.94; and this seems to arise from the fact, that he again, in his third account, omits the Zweidinger claim. For this strange condition of affairs there may be, and perhaps is, some explanation consistent with the integrity of the executor, but if there is such an explanation we have not heard it. Complaint is made that the Orphans’ Court opened the second account for the purpose of surcharging the accountant with the profits made on the goods purchased at the sheriff’s sale. But we cannot see that it did anything of the kind. The appellant brought forward the $5,400 charge in the second account as a credit on the uncharged Zweidinger claim. It thus became the duty of the *333court to inquire whether or not this demand should be allowed. But of this, the amount of the bid at the sheriff’s sale, whilst it was properly a credit on the judgment against Zweidinger, was certainly not a credit to the executor, for he did not pay over this bid to the estate, but it simply remained in his hands in the shape of goods belonging to the trust for which he was acting.

He, however, contends most earnestly, that, for the profit upon the resale of these goods, the difference between $5,100, and the amount of the bid, some $3179, he ought to have credit. But by what means does he become entitled to such a credit % There is no doubt but that the goods thus bought belonged to the estate ; as we have said, ho did not pay for them ; how then can he claim the benefit of the proceeds ? A trustee cannot thus be allowed to speculate or trade with the money or goods of the estate; if he does, he must account for the profits which he may realize therefrom: Frank’s Ap., 9 P. F. S. 190; Hermstead’s Ap., 10 P. F. S. 123; Robinett’s Appeal, 12 Ca. 174; Norris’s Ap., 21 P. F. S. 106. It is in effect, the servant setting up a claim to the proceeds of his master’s goods.

But it is claimed that as he is surcharged with the whole of the Zweidinger debt he ought to be entitled to this credit. We cannot understand how this proposition can be sustained, for the fact remains that the goods out of which this profit was realized, were the goods of the estate, and when they were turned into money, that belonged to the estate as much as did the chattels from which it was made.

We cannot, therefore, see how the court below could have done other than it did, or that it surcharged the accountant with anything that did not fairly belong to the trust of which he had charge.

The appeal is dismissed and decree affirmed at costs of appellant.