YORK LEGAL RECORD. tions were filed, on behalf of Mary Jane VOL. IV. THURSDAY, SEPTEMBER 27, 1880. No. 30 ORPHANS' COURT. Squibb's Estate. Myers, the legatee, to wit: I. That the accountant has not charged himself with all the assets that came or should have come to his hands. II. That he is not entitled to credits Nos. 32, 33, 34, 39, 40, 42, 43, 45, 46, 47, Executor Services of-Renting of Pro- 48, 49, 50 and 51, as claimed. perty. Where an executor is compelled to rent the decedent's real estate, and keep the property in repair, he is entitled to a reasonable allowance for these extra services. But where part of such rent is lost through his negligence in not requiring security from the tenant, he is properly surcharged with the amount so lost. Exceptions to Auditor's Report. The report of the Auditor, James Kell, Esq., is as follows: The auditor finds the following facts, to wit: Caroline E. Squibb, the said decedent, died September 20, 1878, having made her will dated September 14, 1877, by which she gave to her daughter Mary Jane Myers, the exceptant in tnis case, certain household furniture absolutely. All the rest of her estate real and personal she directed to be sold and the proceeds of the sale thereof to be invested for the use of said Mary Jane. The testator authorized the Executor to pay to her said daughter of the principal of the estate from time to time "to make her comfortable." The estate of the testator at the time of her death consisted of a small quantity of personal property, and a tract of land containing about eighty-seven acres, situated in Warrington township. At the time the account under consideration was filed, to wit: June 3, 1882, the Executor had not sold the real estate, but had leased it from year to year for rent in money payable annually. The said account of the Executor embraces the personal estate of the decedent and the rent received by him for the land, the whole amount with which he charges himself is $374.39 and the sum of the credits is $391.44 showing a balance due the accountant of $17.06. The exceptant and legatee was living with her mother, the testatrix, on the premises referred to, at the time of the death of the testatrix, but left the place soon after. It is in evidence that she did not desire that the land should be sold until she would try how she would like living among strangers. The Executor made an effort to sell it at public sale sometime in 1881, but the purchaser failed to comply with the terms of sale and it remained unsold. The land in question is the same place on which George Squibb and his wife were murdered in 1866. It is in evidence that the land is very thin and poor, not more than forty acres of it fit for cultivation, and that the buildings were old and delapidated. The executor testifies that he found it very difficult to rent the place owing to the condition of the house and buildings, and also owing to the fact that it was the scene of the Squibb murder, people having a dread or apprehension of evil associated with the place, making it an undesirable place to live. He says repairs were necessary particularly to the hog pen, that being a building necessary to the proper use and occupation of the land, and he expended $49.96 in the purchase of material and paying for the work in making the repairs. He also purchased clover seed to the amount of $4.50 and sowed it on the land. The credits in the said account for repairs and the cloverseed are all excepted to. Although it may not be within the duties and authority of the executor under To this account the following excep- the will to repair buildings and sow clover seed on the land, yet being unable to sell it he had to lease it and in the opinion of the auditor he was justifiable in making necessary repairs. The evidence does not show that the charge for materials or work done in repairing are in excess of what they are worth. The testatrix was afflicted with a dropsical affection, and her physician Dr. Trimmer, had occasion to "tap" her repeatedly and drain water from her abdo men. In some dozen of these operations Dr. Trimmer was assisted by Harvey Bell, the accountant at the request of the testatrix. Mr. Bell had to go about five miles from his home to Mrs. Squibb's place each time of the "tapping." For these special services he charges $8 and takes credit for the same in his said ac count. This charge does not seem to be excessive for that kind of service. The accountant takes credit "for services attending the real estate" $12.00, and "allowance" $18.00 to both of which credits exceptions are taken. The services, for which $12.00 are claimed, are about the same for which $18.00 "allowance" are claimed." Credit is taken in the account for these several sums of money paid to Mary Jane Myers in 1881. The money was not paid into her hands by the accountant, but it was left, with Edward Miller, a near neighbor to Mary Jane, for her, and she received it from Miller. In April, 1882, the accountant again left $10.00 for her at Millers. The last mentioned money she had not received at the time of the hearing before the auditor. The auditor has discovered no sufficient reason for exceptions to these four last mentioned credits. It was owing to her infelicity of temper, and a want of disposition to accommodate her on his part, that the money was not paid into her hands by the accountant. But the money was left with a neighbor near to where she lived, and she got it all but the last payment, and could have got that sum also at the same place she got the former payments, but for her hasty leaving Miller's place on the occasion of her going there the last time before she was heard by the auditor. In the opinion of the auditor the accountant should not be allowed credit for the $12.00 "claims for services attending to real estate," and the auditor therefore sustains the exceptions to credit No. 51, but does not sustain any other exceptions to the credit side of the said account. The accountant charges himself with $60.00 rent for 1879; $38.85 for 1880 and $40.00 for 1881. He had a written contract with the lessee for 1880, the rent to be paid according to the lease is $50.00, but the lessor failed to take security for the rent and therefore lost part of it. He says he has lessee's promissory note for $11.15, the balance of the unpaid rent for 1880, but he says the lessee is wholly irresponsible financially. This balance of rent was lost through the negligence of the accountant. He undertook to lease the real estate of the testatrix and is liable for all rent that he should have received under the lease. The auditor therefore surcharges the accountant with $11.15 balance of the rent of 1880. Circumstances over which the accountant had no control, relieve him in the opinion of the auditor, from liability for more than $40.00 rent for 1881. He seems to have done the best he could for that year after the tenant disappointed him. The tenant in possession for 1880, had agreed to remain for the year 1881, but changed his mind in the spring of 1881 when it was too late to obtain good tenants or lease on favorable terms, and the accountant had difficulty in leasing the place to any one. The testatrix bequeathed to her daughter Mary Jane Myers, certain articles of household furniture, &c., mentioned in her will, which were appraised and delivered to the legatee and her receipt taken for the same by the accountant. He charged himself with the appraised value of the same bequest but omitted to take credit for the same amount in his account. The omission was not discovered until the account was before the auditor on ex ceptions and on application the court enlarged the powers of the auditor that he might state a correct balance on the account. The appraised value of the said bequest was $17.00. This sum is therefore added to the balance due the accountant. The balance due the accountant on the account as stated and filed is $17.05. The balance should have been $17.05 plus $17, to wit: $34.05. But the auditor in setting the exceptions surcharges the accountant with the balance of rent due for 1881, and unpaid, to wit: $11.15. And sustains the exception to the item No. 51 in the credits taken in the account "claims for services attending real estate," to wit: $12.00. The amount of these two items, to wit: $23.15 deducted from the balances on the account as stated by the auditor, shows a balance due the accountant of $10.90. The negligence of the accountant, in the opinion of the auditor, was not so gross as that he should pay the the costs of the audit. The auditor therefore charges the same to the estate of the decedent. The following exceptions were filed on behalf of Mary Jane Myers: 1. The auditor erred in charging the costs of audit to the estate of the decedent; which is virtually the same as punishing the exceptant for the default of the accountant; she being the sole legatee. 2. In not directing Henry Bell the defaulting accountant to pay the cost of audit. for 1880 amounting to $11.15. W. C. Chapman, for accountant. September 24, 1883. WICKES, P. J.The auditor erred, we think, in surcharging the executor with twelve dollars claimed in his account "for services attending to the real estate." The testator directed the property sold, the sale was however deferred in the first instance, at the request of the exceptant, the only person save himself interested in the estate. The delay extended over a period of several years, and during all this time, the accountant looked after the property. It was according to the testimony a most undesirable farm-the buildings delapidated-the soil impoverished, and the place itself associated with a horrible murder committed there some years ago. this, it is said, rendered it extremely difficult to procure tenants, and added to the ordinary trouble involved in the supervision of a farm. All For this the accountant charges twelve dollars—a sum which can scarcely be said to be excessive. The auditor says "the services are about the same for which the $18.00 allowance are charged." There is nothing to show that these services are surcharged, or intended so to be, in the "allowance." Why then shall not the accountant be paid this amount— the services were rendered and the charge is moderate, and we think ought to be permitted to stand. The other item with which the auditor surcharges the accountant, is $11.50 uncollected rent for the year 1880. He finds the accountant negligent, but the negligence seems to have consisted in not col And the following on behalf of the ac- lecting the balance of rent. But there is countant: 1. The auditor erred in disallowing the credit of $12.00 for services attending the real estate. 2. The auditor erred in surcharging the accountant with the balance of the rent nothing in the evidence to show the rent could have been collected by any amount of vigilance. If there was any negligence in the matter, it was in not requiring security when he leased the property. He seems to have Petition for order to sell lands of the decedent which are subject to the lien of debts not of record. The petition was referred to D. M. Johnson, Esq., Auditor, who reported as follows: From the testimony the Auditor is of opinion, and finds that the statements set forth in the petition are true. All parties in interest appear by the petition, to desire a sale of the properties mentioned therein. It only remains therefore for us to consider the power of the court to decree a sale under the circumstances set forth in in the petition, to wit: "That the said estate is subject to the lien of debts not of record," &c. This being a question of law, the Auditor refers to Sec. 2 of the Act of April 18, 1853, (Price Act) in which the court is given jurisdiction to order a sale (1) whenever a decedent's estate is subject to the lien of debts not of record." Should evidence of the existence of debts not of record be presented to the court, or is the theory that for five years lands are thus subject, sufficient to give the court jurisdiction? It is scarcely necessary to cite authorities to the effect that "the law being be neficient and remedial is not to be so construed as to defeat its main intent." "But when the (private) sale decreed is for the reason set forth in the 2d Section, that is that the "decedent's real estate is subject to the lien of debts not of record," it would be to make the Act nugatory to defeat the very purpose for which the application to court is made. A (private) sale may take place for any and all the purposes enumerated in the 2d Sec., if it be to overcome the disability of person, or to purge the title of its trusts or limitations, that end may be reached by either mode of sale, and it should not be less so when the object of sale is to remove the lien of the unknown general debts of a decedent, having a lien for five years after his decease when that is the expressed purpose." Price on the Act relating to Real Estate, page 131. Also "whenever a decedent's real estate is subject to the lien of debts not of record; that is, during the five years after his decease, for which time all his real estate is subject to the lien of all of his debts; and theoretically so subject though no debts be known to exist. Ibid, page 97. See Greenawalt's Appeal, I Wr. 97, where the question was partially considered. In re Hannah H. D., and Howell Pierce, minors, 7th Phila. 475, opinion by Allison, J.: "There may in fact be no known debts, but debts there may be, without the knowledge of the heirs or of a proposed purchaser; and this uncertainty would necessarily depreciate the price that would be obtained for the property." * * "But if in fact it should be found at the expiration of three years there are no debts to be paid, there is yet a purpose contemplated by the Act, to be subserved by a decree of sale, namely, to discharge the lien of debts which cannot with legal certainty be known not to exist, and to pass the property to the purchaser discharged of any possible claim," &c., &c. The court therefore appears to have full power under the present petition to decree a sale, and the auditor is of opinion that a sale of the premises mentioned and described in the petition is expedient and for the interest and advantage of those interested in the premises. Sept. 17, 1883. CLAYTON, P. J.-The report is confirmed and order of sale granted. VOL. IV. THURSDAY, OCTOBER 4, 1883. No. 31 YORK LEGAL RECORD. after the agreement aforesaid, he had at several different times between the maturity of the note, August 16, 1875, and the closing of his account, December 8th, 1876, sufficient funds there to pay the note. SUPREME COURT. Peoples' Bank of Wilkesbarre v. Legrand. An indefinite or uncertain extension of time for the payment of a note, which does not tie up a creditor's hands, will not discharge an endorser. A bank is not obliged in favor of an endorser to appropriate money deposited by the maker of a note, one of its customers, towards the payment of the note after it becomes due. If, however, it has funds of the maker in hand at the time of the bringing the suit against the endorser he may avail himself of the maker's right to set-off. 7. That the amount due upon the note, May 18, 1882, is $2,977.45. The points reserved by the court are the following: 1. Was Legrand entitled as the surety of Lowenstein to have the money deposited 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 those deposits? The following was the agreement of parties as to the facts established by the evidence, in the nature of a special verdict. 2. Had the bank the right to apply the money deposited by Lowenstein, to the 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, viz.: 1. That Legrand the defendant, endorsed Lowenstein's note for $2500, which was discounted by plaintiff, not paid at maturity, and duly protested with lawful notice to said Legrand, endorser 2. That Lowenstein was a depositor of large amounts in the plaintiff's bank, at the time said note was discounted, to wit, May 15, 1875, and at the time it was protested, to wit, August 16, 1875. 3. That suit was brought by the bank against Lowenstein, November 13, 1875, and judgment obtained January 13, 1876, Suit against Legrand was begun Dec. 8, 1876. 4. That Lowenstein continued to do business with the bank as a depositor until Dec. 8, 1876. 5. That after suit was brought against Lowenstein, he asked the president of the bank for time to pay the note, and agreed to pay ten per cent. interest thereon, and to continue doing business with the bank, but no particular time was specified or agreed upon. 6. That Lowenstein had not sufficient funds in the bank to pay the note at the time it matured, but that afterwards, and business with the bank? So agreed this 18th day of May, 1882. The verdict of the jury subject to points reserved to the court was as follows: Now, May 18th, 1882, the facts of this case being determined by agreement filed (see supra), the court direct the jury to render a verdict in favor of the plaintiff, for the sum of $2,977.45, subject, however, to the reserved points specified in the foregoing agreement of counsel, and reserving the right to enter judgment, non obstante veredicto, in favor of the defendant, if, upon consideration of those points, and the facts agreed upon, the court shall be of the opinion that judgment should be so entered. |