Estate of Hoffman ( 1899 )

Opinion by

William W. Pobteb,

This is an appeal from the order of the orphans ’ court, directing an attachment to issue against an administrator for the costs imposed by the court on the audit of his account.

On the filing of the account, an auditor was appointed, who found that “ two thirds of the costs of this audit should be paid by the accountant, and he is accordingly charged with two-thirds thereof.” An exception to this finding was dismissed by the orphans ’ court. The case then went to the Supreme Court, where this action of the court below was made the subject of two of the many assignments of error. The Supreme Court (Hoffman’s Estate, 185 Pa. 815) affirmed the decree of the court below and dismissed the appeal at the appellant’s costs. The only question for consideration here is whether an attachment is properly issuable to enforce the collection of the costs thus judicially imposed.

In the account filed, the administrator incorporated some items relating to his management of the real estate of the decedent, whereupon he was required by the auditor to account as administrator for all items of charge and discharge in respect to such management. This the court below approved, and the Supreme Court affirmed. With the accountant’s management of the personal estate, the auditor found little fault, but held that “ the business connected with the farm, he has managed in a careless and negligent manner; to the heirs he has conducted himself hostile, refusing to render proper statements and neglecting to file any account for seven years. His account as filed, at least that portion relating to the farm, is deficient and one-sided, and adverse to the other heirs. A great deal of the testimony taken and time consumed before the auditor, as also a large portion of his labors in stating this account, was made necessary by reason of these acts and omissions of the accountant.”

The auditor further found, as a fact, that the accountant had “neglected and refused to account for the rents, issues and profits- of the farm, and had appropriated a great part thereof to his own use.” The orphans ’ court, while allowing an increase of the amount of the accountant’s compensation, yet affirmed the findings of the auditor and his imposition of costs. This action was affirmed by the Supreme Court.

The account of the administrator brought into the orphans court his management of the realty. This was a submission of the matters involved, to that forum. It was acceded to by the other parties in interest. It, in large measure, constituted the controversy decided by the orphans ’ court. The consideration and decision of the matters there involved were approved by the Supreme Court upon the facts of the case.

The appellant here, therefore, was, as to all of the funds he was accounting for, acting in the capacity of a trustee. The decree was made against him as an administrator, who had been unfaithful in the discharge of his duty and who had in part applied the trust funds to his own use. The doctrine of Wilson v. Wilson, 142 Pa. 247, and Chew’s Appeal, 44 Pa. 247, has, therefore, direct application. The decree was for the payment of money, but was based in part on surcharges, and was in fact the enforcement of a duty to be performed by a trustee in respect to trust funds: Church’s Appeal, 103 Pa. 263. It was based on maladministration, and the decree for costs takes its character from the decree on the merits: Pierce’s Appeal, 103 Pa. 27; Duff v. McDonough, 2 Pa. Superior Ct. 373.

We are of opinion that the attachment was properly directed to issue, and the order of the court below is therefore affirmed.