203 Pa. 496 | Pa. | 1902
Opinion by
A statement of the facts preceding and connected with the account of Charles Henry Hart, executor and trustee of his
As to the second assignment, that the court erred in allowing the executor and trustee the commissions, it is well founded. The court below narrates the facts exhibiting the conduct of the executor thus:
“ What are the facts in the present case? No account was filed by the executor for fifteen years, and then under compulsion, and when filed is improperly stated, and imposes great labor and exhaustive examination upon parties interested and the court, and includes both principal and income and distribution in one so-called account, claims commissions wrongfully, and even upon a debt of his own which has never been paid by him, although less than the amount of commissions which he has paid himself. And although he sold many of the investments made by the testator at a profit, but at what date does not appear in the account, he has retained others until the present time, when they are practically worthless, and paid assessments out of the principal of the estate upon shares of stock and bonds not recognized as investments proper to be held by an executor, and which should have been sold by him; made investments of moneys of the estate in railroad, iron company and brick company, country club and card campany bonds and stock, all illegal investments; paid hitnself in excess of his share of the estate, without award by the court, and unknown to legatees and cestuis que trust, and retained shares of stock at less than their market value, and in addition in the income account charged himself with interest and div
If this does not point to reckless and blamable mismanagement on the part of a trustee, we are at loss to conceive what language could more pointedly pronounce him guilty of such a charge; and yet the result is only this mild conclusion on the part of the court below:
“ This is another illustration of the mismanagement and want of good care exhibited in the control and management of the estate, and, taken in connection with his irregular and almost incomprehensible account, we regret to reach the conclusion that the executor does not merit the full reward granted to a prudent, careful and meritorious trustee. Enough has been shown to warrant the disallowance of all compensation, but we are disposed to be more lenient. The rate allowed by the auditing judge is adopted, but the amount to be awarded to the executor as compensation cannot be ascertained except upon a restatement of the account, showing disallowance of commissions upon the several items before referred to, together with the income, so-called, upon the securities appropriated by the executor as his distributive share.”
Taking the facts as the court states them, and as the evidence developed them, it may well say, “ Enough has been shown to warrant the disallowance of all compensation ; ” in fact it warranted no other than a disallowance of all compensation. The personal regret for the trustee’s conduct should not' have moved the court to shrink from the judicial decree which logically followed the finding of facts, — one refusing him all compensation. In the real sense of the word, it is not the infliction of a “ penalty,” for there is another court better adapted both in its procedure and judgment to that end; in the orphans’ court, it is simply a refusal to reward him as for doing well
That the accountant was not compelled by citation to render accounts for fifteen years after he took out letters, in no way excuses him or indicates assent to his methods. The beneficiaries under the will were the children, grandchildren and other near relatives of the testator; the accountant was his son, by profession a lawyer; it was natural that they should repose confidence in him, and for many years accept his assertions of faithfulness to their interest; besides, their affection for him and aversion to publicity would in large measure account for a silence which resulted to their prejudice. Therefore, the decree of the court below, so far as it allows compensation to the executor and trustee, is reversed and it is directed that the account be restated accordingly.