196 Pa. 294 | Pa. | 1900
Opinion by
Thomas Waddell, a coal operator of Luzerne county, died on October 23, 1894, leaving a will with three codicils, the .last one dated only nineteen days before his death. He was conducting several coal plants just before he died, among others, a newly opened mine at Winton. In this last he had sunk a slope to the coal, and also a shaft, for what under the statute is known as the second opening, but had made no connection between them; the slope had reached the coal, but at ■the bottom had struck a fault, which barred access to the regular and valuable bed beyond it. To utilize the shaft and slope already put down at great cost, development of the property required that the operator should cut through the fault, ■or abandon the operation at that point and try another. This was well known to testator, and with this knowledge, and with Lis will before him, a few days before his death, when he exe■cuted the last codicil, he leaves this provision in full force:
“ My executors shall sell and convert all my interest in any of my collieries or coal operations, wherever situated, as soon as the same can conveniently be done with advantage to my estate, and until such sale of said colliery interests my executors shall conduct the same and all the business operations oonnected therewith for the benefit of my estate, with the same power and effect as if I were living, and managing or conducting the same.”
The executors wanted to get a purchaser for the Winton 'mine, and proceeded to make the connection between the shaft ■and slope, to cut through the fault, and put the mine in a workable condition, on the assumption that it would sell for a higher price if ready for working. Some coal was sold during the progress of the work, but not nearly in quantity to equal the expenditure, in royalties paid, and in rock blasting and labor necessary to cut through the fault. On February 15, 1897, the colliery was sold for $30,000. On August 30, 1897, the executors filed their first partial account. From this account, as found by the court below, the executors had expended, including interest and royalty, $36,622.25 more than they had received for coal mined, dating their answerability for thirty-two months from the end of a period of six months after decedent’s death. Many exceptions were filed by Bar
We have already quoted the clause of the will relating to the sale of the collieries. 1. What was the executors’ duty? 2. What was the scope of their discretion in the exercise of it ? Their duty was imperative, to sell the property; not immediately, however, but when the same “can be.conveniently done with advantage to my estate.” These words absolutely negative a peremptory direction to sell immediately. They at once imposed upon the executors the exercise of discretion and judgment as to when such sale could be made with advantage to the estate. To what line did this discretion as to time of sale extend ? The exceptants argue that the duty was to be exercised by at once, at least, offering it for sale. The executors might have done so, if, in their judgment, that would have been of advantage to the estate; but they dared not so to do, if, in their judgment, it would be a disadvantage. The learned judge of the court below holds that they ought to have sold at the end of six months, and therefore surcharges them with all excess of expenditures over receipts after the expiration of that period. As concerns the will, the one conclusion is as arbitrary as the other; the testator fixed no date whatever, except the judgment of the executors; that is, when, in their opinion, it would be of advantage to his estate. Unless the facts show a gross abuse of discretion or gross supineness or negligence in its exercise, their judgment must control.
By the words of the will the testator expresses the utmost, confidence in the executors’ capacity. As we have before noticed, he had run this slope about to the fault, and had sunk the shaft for the second opening; the evidence shows that this, work had been done at a large cost by testator himself; but it did not prove the value of the mine; that could only be demonstrated by piercing the fault to the undisturbed coal beyond it. This condition, at once, imposed on the executors the exercise
It is argued that as a minority of the legatees requested, that the expense be stopped and the property be sold, the executors were bound to sell; this, as a fact, is not clear; there is no doubt but that two out of the seven complained and said it ought to be sold; Watson, one of the executors, testifies that at a meeting of the legatees and executors, he said the property was theirs, and anything they thought best would be done, and he proposed to have an agreement to that effect signed by all, which was not done; but assume that a minority, or even a majority, had in writing requested an immediate sale, that would have been no protection to the executors against those who did not join. It was the discretion of the-executors which under the will was to be exercised, not that of the legatees; nothing less than the request of all would have saved the executors from the peril of a nonexercise of their own judgment, and this, only because there were no creditors, and the legatees, being the only parties in interest, would then have been estopped from denying the good faith of the executors. There' is nothing of significance in this point.
As to the fact urged that George W. Waddell claimed the .Winton mine, and therefore, not in the interests of the estate,' but in his own, wanted it developed, there is no evidence to prove it. The will did not give him the property; his conduct shows no evidence of a selfish purpose; on the contrary, he acted in harmony with his coexecutors, and at a loss to himself pro rata with the other legatees. The language of Cline’s Appeal, 106 Pa. 617, is pertinent to these facts:
“ The testator in directing his business .to be carried on may*302 have thought he was acting wisely in so doing. As a general rule such provisions in wills result disastrously, and this case is not an exception to the rule. It has certainly impaired the estate. But we must be careful not to throw the consequence of the ‘ testator’s folly ’ upon the executor. If it (the carrying on of the business) resulted in a gain, the estate would have the benefit of it; if in a loss such loss must fall on the estate. It would be a hard rule to put the losses on one who had no possible participation in the profits.”
The decree is reversed, and it is directed that the surcharge of $36,622.25 against accountants be striken. off, and that the account as reformed be confirmed absolutely; costs to be paid by appellees.