211 Pa. 338 | Pa. | 1905
Opinion by
Under the first assignment of error it is contended by the appellants that the learned auditing judge and the court below erred in sustaining the claim of Albert H. Moore for the sum of $875, being the proceeds of the sale of ten shares of the capital stock of the Teutonia Fire Insurance Company. From the evidence it appears that among the securities and other papers of Andrew M. Moore, deceased, were found three certificates of stock, issued by said company, in the name of his three sons. One of these certificates for ten shares was in the name of A. H. Moore, the claimant. The other two certificates were in the names of his brothers, George M. Moore and Harry G. Moore. The executors claimed the certificates as part of the estate of the decedent. Each of the two brothers signed the power of attorney on the back of the certificate in his name in order that it might be transferred to the estate. The claimant at first declined to make an assignment of his certificate. The executors desiring to sell this stock, waited
In passing on this question, the court below said: “ There was found among the papers of the testator a certificate for ten shares of stock in this company in the name of Alfred H. Moore, the claimant. As the stock stood in his name prima facie it was his. There was nothing to rebut this presumption. At any rate it was a question of fact which the auditing judge fully considered and his finding^must stand unless clearly erro
“ The net result of our negotiations was that all stockholders who surrendered their certificates, properly indorsed and transferred, received eighty-seven and one half a share. We held the certificate in such a condition that we could not use it. We then, as I have stated, communicated with counsel for Mr. Moore, and, on explaining the facts to him, he procured Mr. Moore’s signature to the assignment of the certificate of stock. That is as far as my recollection goes. We then turned it in with the others arrd got our money. Q. Did he ever claim that the money should be paid to him ? A. He made no claim of that kind, no. On the contrary, it was distinctly recognized by signing that he was making the certificates available to the executors as an asset of the estate.”
“ A. I beg your pardon. It is quite true, as you have stated, that I have no recollection about the. details which you have inquired about, because, in connection with the object I had in view, they were to my mind immaterial; but I have a very
The claimant was entitled to the certificate of stock, if anything. There is no evidence that he ever made any demand for it. It is true he at first refused to sign the power of attorney to transfer, but even at that time he did not assert ownership to the stock. The executors claimed the stock at all times as an asset of the estate. When he signed the power of attorney he must have known under the testimony of Mr. McCouch, that he was putting the stock in shape to be available as an asset of the estate. For almost two years after that time he made no demand either for the stock or the proceeds of the sale. In other words, he treated it as an asset of the estate until his counsel raised the question at the audit. The two brothers, whose certificates stood in their names under similar circumstances, transferred their stock to the estate and made no claim for the same. Under these facts, established by competent testimony, we are of opinion that the presumption of ownership in A. H. Moore is rebutted; that the shares of stock belonged to the estate and the proceeds thereof should be accounted for by the accountants. This assignment is sustained.
The appellants contend under the second and third assignments that the court below erred in fixing the amount of the proceeds of the sale of the Girard House property, on which commissions should be charged, at $700,000. This property was encumbered by a mortgage of $400,000, and a ground rent of $100,000. The court below sustained the finding of the auditing judge in respect to ‘the amount on which the accountants should be allowed a commission. The learned judge who delivered the opinion of the court said: “ The auditing judge refused to allow commissions on the said $400,000 mortgage which was paid off and satisfied by giving the holder thereof trust certificates to that amount secured by the new mortgage under the trust agreement before referred to. There was practically a substitution of a mortgage in one form for one in another. There was no money passed through the
It may be admitted that under the facts whereb3r the accountants covenanted to sell clear of encumbrances, there is a doubt as to what is the proper construction to be placed upon these agreements so far as they relate to the amount on which commissions should be allowed. Inasmuch, however, as the auditing judge and the court below have found the compensation allowed to be reasonable and sufficient, we think there was no such manifest error as would require this court to reverse either their findings of fact or conclusions of law in this respect. These assignments are overruled.
It is ordered that the record be remitted to the court below in order that the schedule may. be corrected and distribution made in accordance with this opinion, the costs to be paid out of the estate.