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VOL. IV.

No. 30

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YORK LEGAL RECORD. tions were filed, on behalf of Mary Jane

Myers, the legatee, to wit :
THURSDAY, SEPTEMBER 27, 1880.

I. That the accountant has not charged

himself with all the assets that came or ORPHANS' COURT.

should have come to his hands.

II. That he is not entitled to credits Squibb's Estate.

Nos. 32, 33, 34, 39, 40, 42, 43, 45, 46, 47, Executor_Services ofRenting of Pro- | 48, 49, 50 and 51, as claimed. perty.

The exceptant and legatee was living Where an executor is compelled to rent the decedent's with her mother, the testatrix, on the real estate, and keep the property in repair, he is entitled to a reasonable allowance for these extra services. premises referred to, at the time of the

But where part of such rent is lost through his negli- death of the testatrix, but left the place gence in not requiring security from the tenant, he is properly surcharged with the amount so lost.

soon after. Exceptions to Auditor's Report.

It is in evidence that she did not deThe report of the Auditor, James Kell, sire that the land should be sold until she Esq., is as follows:

would try how she would like living The auditor finds the following facts, to among strangers. The Executor made an wit: Caroline E. Squibb, the said de- effort to sell it at public sale sometime in cedent, died September 20, 1878, having 1881, but the purchaser failed to comply made her will dated September 14, 1877, with the terms of sale and it remained by which she gave to her daughter Mary unsold. Jane Myers, the exceptant in tnis case,

The land in question is the same place certain household furniture absolutely. on which George Squibb and his wife All the rest of her estate real and personal were murdered in 1866. It is in evidence she directed to be sold and the proceeds that the land is very thin and poor, not of the sale thereof to be invested for the

more than forty acres of it fit for cultivause of said Mary Jane. The testator au- tion, and that the buildings were old and thorized the Executor to pay to her said delapidated. daughter of the principal of the estate

The executor testifies that he found it from time to time “to make her comfor

very difficult to rent the place owing to table."

the condition of the house and buildings, The estate of the testator at the time of and also owing to the fact that it was the her death consisted of a small quantity of scene of the Squibb murder, people havpersonal property, and a tract of land con- ing a dread or apprehension of evil assotaining about eighty-seven acres, situated ciated with the place, making it an undein Warrington township.

sirable place to live. He says repairs At the time the account under consider- were necessary particularly to the hog ation was filed, to wit: June 3, 1882, the pen, that being a building necessary to Executor had not sold the real estate, but the proper use and occupation of the land, had leased it from year to year for rent in and he expended $49.96 in the purchase money payable annually. The said ac- of material and paying for the work in count of the Executor embraces the per- making the repairs. He also purchased sonal estate of the decedent and the rent clover seed to the amount of $4.50 and received by him for the land, the whole sowed it on the land. The credits in the amount with which he charges himself is said account for repairs and the clover$374.39 and the sum of the credits is $391.- seed are all excepted to. 44 showing a balance due the accountant Although it may not be within the duof $17.06.

ties and authority of the executor under To this account the following excep- the will to repair buildings and sow clover

In some dozen of these operations The accountant charges himself with

seed on the land, yet being unable to sell she got the former payments, but for her it he had to lease it and in the opinion of hasty leaving Miller's place on the occathe auditor he was justifiable in making sion of her going there the last time benecessary repairs. The evidence does not fore she was heard by the auditor. show that the charge for materials or In the opinion of the auditor the acwork done in repairing are in excess of countant should not be allowed credit for what they are worth.

the $12.00 “claims for services attending The testatrix was afflicted with a drop- to real estate,” and the auditor therefore sical affection, and her physician Dr. sustains the exceptions to credit No. 51, Trimmer, had occasion to “tap” her re- but does not sustain any other exceptions peatedly and drain water from her abdo- to the credit side of the said account. men. Dr. Trimmer was assisted by Harvey $60.00 rent for 1879; $38.85 for 1880 and Bell, the accountant at the request of the $40.00 for 1881. testatrix. Mr. Bell had to go about five

He had a written contract with the miles from his home to Mrs. Squibb's lessee for 1880, the rent to be paid accordplace each time of the "tapping. For

ing to the lease is $50.00, but the lessor these special services he charges $8 and failed to take security for the rent and takes credit for the same in his said ac

therefore lost part of it. He says he has count. This charge does not seem to be lessee's promissory note for $11.15, the excessive for that kind of service.

balance of the unpaid rent for 1880, but The accountant takes credit “for servi- he says the lessee is wholly irresponsible ces attending the real estate” $12.00, and financially. This balance of rent was lost "allowance” $18.00 to both of which through the negligence of the accountant. credits exceptions are taken.

The ser

He undertook to lease the real estate of vices, for which $12.00 are claimed, are the testatrix and is liable for all rent that about the same for which $18.00 "allow- he should have received under the lease. ance'' are claimed."

The auditor therefore surcharges the acCredit is taken in the account for these countant with $11.15 balance of the rent several sums of money paid to Mary Jane of 1880. Circumstances over which the Myers in 1881. The money was not paid accountant had no control, relieve him in into her hands by the accountant, but it the opinion of the auditor, from liability was left, with Edward Miller, a for more than $40.00 rent for 1881. He neighbor to Mary Jane, for her, and she seems to have done the best he could for received it from Miller. In April, 1882, that year after the tenant disappointed the accountant again left $10.00 for her at him. The tenant in possession for 1880, Millers. The last mentioned money she had agreed to remain for the year 1881, had not received at the time of the hear- but changed his mind in the spring of ing before the auditor. The auditor has 1881 when it was too late to obtain good discovered no sufficient reason for excep- tenants or lease on favorable terms, and tions to these four last mentioned credits. the accountant had difficulty in leasing It was owing to her infelicity of tem

the place to any one. per, and a want of disposition to accom- The testatrix bequeathed to her daughmodate her on his part, that the money ter Mary Jane Myers, certain articles of was not paid into her hands by the ac- household furuiture, &c., mentioned in her countant. But the money was left with a will, which were appraised and delivered neighbor near to where she lived, and she to the legatee and her receipt taken for got it all but the last payment, and could the same by the accountant. have got that sum also at the same place He charged himself with the appraised

near

value of the same bequest but omitted to for 1880 amounting to $11.15. take credit for the same amount in his ac- H. L. Fisher, for exceptant. count.

W. C. Chapman, for accountant. The omission was not discovered until

September 24, 1883. WICKES, P. J.the account was before the auditor on ex

The auditor erred, we think, in surchargceptions and on application the court en ing the executor with twelve dollars larged the powers of the auditor that he claimed in his account "for services atmight state a correct balance on the ac- tending to the real estate." count. The appraised value of the said

The testator directed the property sold, bequest was $17.00. This sum is there

the sale was however deferred in the fore added to the balance due the ac

first instance, at the request of the excepcountant. The balance due the accountant on the ested in the estate.

tant, the only person save himself interaccount as stated and filed is $17.05. The

The delay extended over a period of balance should have been $17.05 plus $17, several years, and during all this time, the to wit : $34.05. But the auditor in set

accountant looked after the property. It ting the exceptions surcharges the ac

was according to the testimony a most countant with the balance of rent due for undesirable farm—the buildings delapida1881, and unpaid, to wit : $11.15. And ted—the soil impoverished, and the place sustains the exception to the item No. 51 itself associated with a horrible murder in the credits taken in the account "claims

committed there some years ago.

All for services attending real estate,” to wit: this, it is said, rendered it extremely diffi

, $12.00. The amount of these two items, cult to procure tenants, and added to the to wit: $23.15 deducted from the balances ordinary trouble involved in the supervion the account as stated by the auditor, sion of a farm. shows a balance due the accountant of

For this the accountant charges twelve $10.90.

dollars-a sum which can scarcely be said The negligence of the accountant, in to be excessive. The auditor says "the the opinion of the auditor, was not so services are about the same for which the gross as that he should pay the the costs $18.00 allowance are charged. of the audit. The auditor therefore charges

There is nothing to show that these the same to the estate of the decedent.

services are surcharged, or intended so to The following exceptions were filed on be, in the allowance." Why then shall behalf of Mary Jane Myers :

not the accountant be paid this amount1. The auditor erred in charging the the services were rendered and the charge costs of audit to the estate of the dece- is moderate, and we think ought to be dent; which is virtually the same as pun- permitted to stand. ishing the exceptant for the default of the

The other item with which the auditor accountant; she being the sole legatee. surcharges the accountant, is $11.50 un

2. In not directing Henry Bell the de- collected rent for the year 1880. faulting accountant to pay the cost of the accountant negligent, but the negliaudit.

gence seems to have consisted in not colAnd the following on behalf of the ac- lecting the balance of rent. But there is countant :

nothing in the evidence to show the rent 1. The auditor erred in disallowing the could have been collected by any amount credit of $12.00 for services attending the of vigilance. real estate.

If there was any negligence in the matThe auditor erred in surcharging the ter, it was in not requiring security when accountant with the balance of the rent he leased the property. He seems to have

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had but little choice of tenants, but he neficient and remedial is not to be so conought to have made an effort to bave the strued as to defeat its main intent." rent secured. This he seems not to have

“But when the (private) sale decreed done, and we shall therefore not disturb is for the reason set forth in the 2d Secthis finding of the auditor. The auditor tion, that is that the "decedent's real eswas quite right in charging the costs of the tate is subject to the lien of debts not of audit to the estate. There is nothing in record,” it would be to make the Act nugthe facts developed before him that would atory to defeat the very purpose for which have justified a different disposition of the application to court is made. A (prithem.

vate) sale may take place for any and all And now, to wit, September 24, 1883, the purposes enumerated in the ad Sec., the exceptions filed by Mary J. Myers are if it be to overcome the disability of perdismissed. The first exception filed by son, or to purge the title of its trusts or Harvey Bell, the accountant, is sustained, limitations, that end may be reached by the second dismissed, and the report con- either mode of sale, and it should not be firmed, except so much as surcharges the less so when the object of sale is to reaccountant with twelve dollars.

move the lien of the unknown general

debts of a decedent, having a lien for five Delaware County

years after his decease when that is the Green's Estate,

expressed purpose." Price on the Act reSale of lands under the Price Act Is lating to Real Estate, page 131.

Also “whenever a decedent's real esproof of the existence of "debts not recorded"' necessary ?

tate is subject to the lien of debts not of

record;" that is, during the five years Under the Act of April :8, 1853, Sec. 2, the court may decree a sale of lands which are subject to the lieu of

after his decease, for which time all his debts not of record, although no such debts are actually real estate is subject to the lien of all of known to exist.

his debts; and theoretically so subject though Petition for order to sell lands of the de- no debts be known to exist. Ibid, page 97. cedent which are subject to the lien of

See Greenawalt's Appeal, I Wr. 97, debts not of record.

where the question was partially conThe petition was referred to D. M. sidered. Johnson, Esq., Auditor, who reported as

In re Hannah H. D., and Howell Pierce, follows:

minors, 7th Phila. 475, opinion by AlliFrom the testimony the Auditor is of son, J.: “There may in fact be no known opinion, and finds that the statements set debts, but debts there may be, without forth in the petition are true.

the knowledge of the heirs or of a proposAll parties in interest appear by the ed purchaser; and this uncertainty would petition, to desire a sale of the properties necessarily depreciate the price that would mentioned therein.

be obtained for the property." It only remains therefore for us to con- “But if in fact it should be found at the sider the power of the court to decree a expiration of three years there are no sale under the circumstances set forth in debts to be paid, there is yet a purpose in the petition, to wit : “That the said contemplated by the Act, to be subserved estate is subject to the lien of debts not of by a decree of sale, namely, to discharge record,” &c.

the lien of debts which cannot with legal This being a question of law, the Audi- certainty be known not to exist, and to tor refers to Sec. 2 of the Act of April 18, pass the property to the purchaser dis1853, (Price Act) in which the court is charged of any possible claim,”' &c., &c. given jurisdiction to order a sale (1)

The court therefore appears to have full whenever a decedent's estate is subject power under the present petition to deto the lien of debts not of record."

cree a sale, and the auditor is .of opinion Should evidence of the existence of that a sale of the premises mentioned and debts not of record be presented to the described in the petition is expedient and court, or is the theory that for five years for the interest and advantage of those inlands are thus subject, sufficient to give terested in the premises. the court jurisdiction ?

Sept. 17, 1883. CLAYTON, P.J.-The It is scarcely necessary to cite authori- report is confirmed and order of sale ties to the effect that the law being be- granted.

*

VOL. IV.

No. 31

becomes due.

YORK LEGAL RECORD. after the agreement aforesaid, he had at

several different times between the maTHURSDAY, OCTOBER 4, 1883.

turity of the note, August 16, 1875, and

the closing of his account, December SUPREME COURT.

8th, 1876, sufficient funds there to pay

the note. Peoples' Bank of Wilkesbarre v. Legrand.

7. That the amount due upon the note, An indefinite or uncertain extension of time for the payment of a note, which does not tie up a creditor's May 18, 1882, is $2,977.45. hands, will not discharge an endorser. A bank is not obliged iu favor of an endorser to appro

The points reserved by the court are priate money deposited by the maker of a note, one of

the following: its customers, towards the payment of the note after it

I. Was Legrand entitled as the surety If, however, it has funds of the maker in hand at the time of the bringing the suit agaipst the endorser he

of Lowenstein to have the money depositmay avail himself of the maker's right to set-off.

ed by the latter in the plaintiff's bank, Error to the Court of Common Pleas of applied to the payment of the note, and Luzurne county.

was it the duty of the bank so to apply The following was the agreement of those deposits ? parties as to the facts established by the 2. Had the bank the right to apply the evidence, in the nature of a special ver- money deposited by Lowenstein, to the dict.

payment of the note, under the terms of It is agreed that the evidence establish- the agreement on which he continued his es the following facts, víz.:

business with the bank ? 1. That Legrand the defendant, endors- So agreed this 18th day of May, 1882. ed Lowenstein's note for $2500, which The verdict of the jury subject to points was discounted by plaintiff, not paid at reserved to the court was as follows : maturity, and duly protested with lawful

Now, May 18th, 1882, the facts of this notice to said Legrand, endorser

case being determined by agreement filed 2. That Lowenstein was a depositor of (see supra), the court direct the jury to large amounts in the plaintiff's bank, at render a verdict in favor of the plaintiff, the time said note was discounted, to wit, for the sum of $2,977.45, subject, however, May 15, 1875, and at the time it was pro- to the reserved points specified in the tested, to wit, August 16, 1875.

foregoing agreement of counsel, and re3. That suit was brought by the bank serving the right to enter judgment, non against Lowenstein, November 13, 1875, obstante veredicto, in favor of the defendand judgment obtained January 13, 1876, ant, if, upon consideration of those points, Suit against Legrand was begun Dec. 8, and the facts agreed upon, the court shall 1876.

be of the opinion that judgment should be 4. That Lowenstein continued to do

so entered. business with the bank as a depositor

Same day the jury do say they find in until Dec. 8, 1876.

favor of the plaintiff for the sum of 5. That after suit was brought against

$2,977.45 Lowenstein, he asked the president of the

The following was the opinion of the bank for time to pay the note, and agreed Court below, Woodward, J., entering to pay ten per cent. interest thereon, and judgment non obstante veredicto. to continue doing business with the bank,

From the voluminous statements filed but no particular time was specified or

in this case we content ourselves with a agreed upon.

brief reference to two facts that are con6. That Lowenstein had not sufficient clusive in their effect upon our mind. funds in the bank to pay the note at the 1. That after suit was brought against time it matured, but that afterwards, and | Lowenstein, he made an agreement with

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