204 Pa. 32 | Pa. | 1902
Opinion by
The fourth assignment of error relates to the question of advancement. The auditor in this case proceeding upon the established principle that this is always a question of intention, has found from the evidence before him that the decedent charged his daughter with the value of the real estate conveyed to her, and thus created the relation of debtor and creditor between them. And that the debt thus created was barred by the statute of limitations. The orphans’ court confirmed this finding, and held that it was justified by the testimony. There was evidence from which the auditor might have found that the transaction was a gift, and neither its amount nor character would have been inconsistent with this view. But as it is,
The third and fifth specifications relate to the placing of the costs of the, audit. It is contended on behalf of the appellant that the entire expense of the audit should be charged to the surviving administrator. But the auditor found as a fact that the administrator was not negligent, nor unfaithful in the management of the estate, and that no blame could properly be placed upon him in this respect. The auditor does find that the account filed in the orphans’ court was not in proper form, in that it did not show clearly the course of administration, as distinguished from the business of farming carried on under an agreement among the heirs. But in this matter the responsibility rested upon the counsel for the administrator, by whose advice, and under whose direction the account was prepared and filed in that form. It seems singular that the accountant should not have been directed to prepare and file another and proper administration account, rather than to have referred the matter at that stage to an auditor, with the resulting heavy expense to the estate. The stating of the account was a mere matter of bookkeeping, and it could easily have been made up by any reasonably qualified accountant, under the direction of counsel for the administrator. Under the- course -pursued, the auditor devoted a large amount of time and labor to the performance of mere clerical work, which could quite as well have been done by the bookkeeper of the estate. This was not the fault of the administrator, however, and the court below was right in refusing to surcharge him with any portion of the costs of the audit. The third and fifth assignments are therefore dismissed.
The only question raised by the remaining assignments of error is as to the amount of the compensation allowed to the administrators in this case. The auditor found that the administrators performed their duties faithfully, and that they were entitled to the usual measure of compensation. In accordance with what he assumed to be that rule, he allowed a commission of five per cent on the total amount of the personal property which passed through the administrator’s hands. This was $263,136.77, upon which the commission as thus fixed was
In Walker’s Estate, 9 S. & E. 223, where the estate was $37,000, the allowance was three per cent. In Stevenson’s Estate, 4 Whart. 98, where there was an estate of $356,000, the auditors reported that “ the executors have had duties imposed upon them of a most distressing and onerous character, and such as rarely fall to the lot of those who exercise that office.” Five per cent was therefore allowed by the auditors, hut the court below refused its sanction and reduced the amount to three, and its action in so doing was affirmed by this court.
In Whelen’s Appeal, 70 Pa. 410, three per cent was allowed upon $168,000. In Lloyd’s Estate, 82 Pa. 143, five per cent was held to be excessive upon $66,000. The cases in Pennsylvania in which an allowance of five per cent has been sustained where the estate amounted to $100,000 or more, are exceptional, as, for instance, in Lilly’s Estate, 181 Pa. 478. There the circumstances were most unusual, as twelve of the thirteen residuary legatees were satisfied that the commissions claimed were reasonable, and filed with the auditor a request that they should be allowed.
In fixing compensation the character of the items of which the estate is composed, and the actual extent of the services required, should be borne in mind. As was said in Harland’s Accounts, 5 Rawle, 329: “ To adopt the same rate in all cases would often produce a monstrous overcharge.”
In the present case, no unusual services were required of the administrators in connection with the personalty. In fact the attention here bestowed was very slight. The investments in
This estate has been unduly burdened by the unfortunate attempt which was made by agreement of all parties concerned to mingle the duties of administration with those of active business management of the real estate, which had vested in the heirs. We are not disposed to increase that burden. Under the circumstances of this case, an allowance of three per cent upon the amount of personal property will be ample remuneration for the services rendered by the administrators.
The first, second and sixth assignments of error are therefore sustained to this extent; and the decree is modified accordingly. It is ordered that the record be remitted to the court below that the schedule may be corrected and distribution made in accordance with this opinion. The costs of this appeal to be borne by the accountant, S. Cameron Young, the surviving administrator.
