261 Pa. 540 | Pa. | 1918
Opinion by
M. L. Seidman, who conducted a carpet and rug business in Scranton, died intestate January 3, 1916, and letters of administration were granted to his son, Wolf Seidman; duly appointed appraisers valued the stock in decedent’s store at $9,895; on January 24,1916, after the due posting of printed bills, the administrator sold these assets in bulk, at public vendue, to his brother-in-law,
The administrator’s first and final account was filed March 12, 1917, and, among other creditors, Joseph Wild & Son excepted to the allowance of $6,295, claimed therein as the difference between the appraised value of decedent’s merchandise and the actual amount realized therefrom by accountant. The exceptant contended that these goods were worth at least $20,000; but, after taking evidence pro and con, the court below found as a fact that, upon the date of the public sale thereof, January 24, 1916, their value was $8,000. The court further found that “Wolf Seidman, in the administration of the estate of the decedent, did not exercise common skill ......prudence and......caution.” Upon these findings, accountant was surcharged $4,400, the difference between the real value, found by the auditing judge and the price realized at the administrator’s sale; whereupon exceptánt appealed to this court.
Appellant contends (1) that accountant should have been found guilty of fraudulent conduct in connection with the disposal of decedent’s merchandise, and charged with the full amount received therefrom up to the time of the purchase by the Scranton Dry Goods Company; (2) that, prior to the last-mentioned purchase, Shiff & Smith had sold goods of considerable value from this stock of merchandise; (3) that, even though accountant’s conduct were not fraudulent, at the least he should be charged with the price decedent’s goods would have realized, had common skill, prudence and caution been exercised in the disposal thereof, i. e., the figure which they afterwards brought when sold to the Scranton Dry Goods Company by Shiff & Smith, in March, 1916; (4) that, in any event, the auditing judge put too> low a value upon the commodities in question; - (5) finally, it
(1) While the record before us shows circumstances connected with the administration of decedent’s estate which lay Wolf Seidman open to grave suspicion, and the evidence relied upon by appellant tends to prove other facts, unnecessary now to mention, which, if we were exercising original jurisdiction, might lead us to affirm certain of the latter’s contentions, yet, notwithstanding these sinister appearances, the auditing judge, who saw and heard the witnesses, not only refused to convict the administrator of fraudulent conduct, but found expressly to the contrary; and these findings were not excepted to in the court below. The auditing judge also made a series of subordinate findings dealing with details of the transactions now in controversy, against the contentions of appellant, which also were not excepted to. In other words, despite requests therefor, this record contains no finding that the administrator either conspired with or was improperly interested in the firm of Shift & Smith, or that he was guilty of any fraud, in connection with the original formation or subsequent conduct of that firm, relating to the sales of the merchandise here in controversy; and, as indicated above, neither the refusal of these requests nor the findings to the contrary appear to have been excepted to below. The present case, like all others, is subject to the well established rule that findings can be reviewed only on assignments which show exceptions taken in, and acted upon by, the court below; and even then such findings will not be disturbed unless the review demonstrates palpable error. So far as appellant’s charges of fraud are concerned, the assignments at bar fail when tested by these rules.
(2) Although requested so to do, the auditing judge refused to find that, between the purchase by Shiff &
(3) As to the penalty for lack of due care and discretion, it appears there was a rise in the carpet and rug market between the date of the administrator’s sale of decedent’s merchandise and the subsequent sale of these goods by the purchasers thereof; albeit there is force in appellant’s contention that, in the exercise of common skill, prudence and caution, the administrator ought to have held the goods, so as to take advantage of this rise, yet we cannot say reversible error was committed when the court below failed to make a surcharge upon that theory. The auditing judge notes, as a reason for the early sale, that it relieved decedent’s estate from the obligation to pay rent, it being made “part of the terms of the sale......that the purchasers would hdve to pay the rent”; and we find no request upon the record that accountant be found guilty of negligence or surcharged because he sold the goods at too early a date. Ordinarily, trustees, administrators and like fiduciaries, are not liable beyond what they actually receive, except in cases of fraud or gross carelessness' (Calhoun’s Est., 6 Watts 185; Fahnestock’s, App., 104 Pa. 46; Semple’s Est., 189 Pa. 385, 390; Skeer’s Est., 236 Pa. 404, 410), and here the findings negative such misconduct; but, on the peculiar facts at bar, because accountant failed to exercise common care, prudence and caution in disposing of decedent’s property, the court below surcharges him with what it finds to be the full value thereof on the day of the administrator’s sale.. In the absence of a finding of gross negligence in selling when accountant did, or of fraudulent participation by him in the subsequent sale of the property in question, appellant cannot properly complain of the amount of the surcharge.
(4) On the subject of valuation, after reading the tes
(5) Finally, the appraisal value is not conclusive (Reese’s App., 116 Pa. 272, 274; Semple’s Est., 189 Pa. 385, 393); therefore, on the findings and evidence in this case, we cannot say the court below should have adopted it rather than the figures which the auditing-judge determined upon as the amount, or price, which should have been secured by the exercise of proper diligence on the part of the administrator.
An appeal has been filed by the Trorlicht-Duncker Carpet Company, another creditor, at No. 15, January Term, 1918; there is a stipulation of record that the judgment here entered shall apply to this other case; and it is accordingly so ordered.
We find no reversible error presented by the assignments ; they are all overruled, and the decree of the court below is affirmed at the cost of appellant.
