62 Pa. 104 | Pa. | 1869
The opinion of the court was delivered,
The terms of the 12th section of the Act of
Was there then in the will of Jacob Myers such a designation by name or description ? We have considered maturely the argument addressed to us by the able counsel of the appellants, but it has failed to convince us. His construction is mainly based on the words “ this I leave to the discretion of my hereinafter named executors.” It is earnestly maintained that they apply to the whole of the paragraph to which they are appended. The argument proves too much. If the qualification applies to the whole clause, w'hich precedes it, then it must follow that it was left to the discretion of the executors whether there should be any appraisement at all as well as who should be the appraisers. It is impossible to divide and distinguish the two things. But the direction that there shall be an appraisement is absolute and unqualified, and the subsequent provision for a sale depends upon it. If these words however are confined to the' next immediate antecedent, which in grammatical strictness they ought to be, then, whether the small property on which the testator resided, and the mansion-house farm should be appraised separately or together, according as more money could be made out of them, presented a question upon which the discretion of the executors might act. The testator said in effect — I leave this to be decided by my executors, not by the appraisers. Nor do we think that the concluding words of the will can be construed to refer to the appointment of appraisers. He named his two sons to be his executors “ to all intents and purposes, and to be vested with all the powers appertaining to the office of executors to carry into force and effect” his last will and testament. Clearly the appointment of appraisers was not a power appertaining to the office of executors, and we would not be justified in holding that this is a designation by description within the meaning of the statute. The control and direction given to the Orphans’ Court is a salutary check in this class of cases, and it would not be right to strain any general expressions to take a ease out of its purview, however far a court might go to raise .an implication if no such law existed. It is certainly true that the two executors had not both an interest in having the property appraised at a low price. It was the interest of the second son that the valuation should be a fair one; that he might receive his just share of the estate if it was taken by his brother, with an election to accept it himself if he declined. Yet there was danger in it, for nothing was easier than to arrange that between the brothers, and then to steal a march upon the
We are of opinion however that the court below erred in disallowing the credits for fees paid by the accountants for legal services and advice, and in striking out all compensation. There was po evidence that we can see of actual fraud. The executors may have acted honestly with the advice of counsel, and every presumption is in their favor. The questions which arose upon the construction of the will and the jurisdiction of the court were certainly hot so clear that they ought to be held unfaithful to their trust in merely acting upon what they thought and may have been advised was the will of the testator. It would be a hard measure of justice to visit a trustee with such consequences for a mistake of judgment upon points in regard to which lawyers and judges might well differ in opinion. Allowing then the credits for fees to counsel, and reducing the allowance to the executors to $50, which seems a sufficient sum for the settlement of so small a personal estate— the account will stand $719.91 on the debit and $550.68 on the
And now it is ordered that so much of tbe decree below as directs that tbe item of $7917.81J on tbe debit side and tbe item of $2639.27 together with tbe items of $6 and $4.50 on tbe credit side of tbe account be stricken out is affirmed, and that so much as directs tbe two items of $10 and $50 on tbe credit side to be stricken out is reversed, and that tbe item of $250 on tbe credit side for allowance to accountants be reduced to $50. That tbe costs of this appeal be paid by tbe executors from tbe estate in their bands, and tbe record be remitted to tbe court below for further proceedings.