Montgomery's Appeal , 1878 Pa. LEXIS 49 ( 1878 )

Mr. Justice Gordon

delivered the opinion of the court,

The compensation of a trustee, of any character, may be arrived at, as a matter of convenience, by the way of a percentage on the amount of receipts and disbursements. But, after all, on all authority, it is a question, not of percentage, but of compensation. When the court has fairly responded to the interrogatory, how much has the trustee earned ? it has discharged its whole duty in the premises. It, therefore, comes to nothing to say, the percentage is large or the percentage is small as compared with the estate, if the executor has received neither less nor more than what his services are worth.

This is in effect but a re-statement of the doctrine of Harland’s Appeal, 5 Rawle 323. Gibson, C. J., in speaking of this matter, says, that, though compensation is “ usually awarded in the form of commission, the rate is not determinable by any established practice or rule, being graduated to the responsibility incurred, the amount of the estate and the sum of the labor expended. It may be awarded even in a gross sum, according to a common practice in the country, which I take to be the preferable one, as it necessarily leads to an examination of the nature, items and actual extent of the services, which the adoption of a rate per cent, has a tendency to leave out of view.” So it is said by Strong, J., in McCausland’s Appeal, 2 Wright 466: “commissions are given as a compensation for labor and responsibility, and where neither the one has been performed, nor the other incurred, there is nothing to be compensated.” This same general idea runs through all the cases and it is useless to enumerate them. Whilst a percentage is constantly spoken of and used because of its convenience, yet, it is compensation, nothing more or less, that is steadily kept in view.

Our present inquiry is, was the allowance by the Orphans’ Court to the Pennsylvania Company for the Insurance on Lives, &c., a fair and just compensation for the services rendered by it, as executor, in the settlement of the estate of Edward Wharton, deceased? A review of the facts as presented to us by the auditor and the accounts filed by the appellee, warrant us in saying it was not; that it was much more than was earned. Five per cent, was charged and allowed on forty-one thousand nine hundred and five dollars, the whole estimated value of the estate.

This estate, excepting one hundred and six or seven dollars’ worth of furniture passed to the residuary legatee at the appraised value, consisted wholly of stocks and loans ; and of these an amount not exceeding in value four thousand dollars, had been converted into cash at the time the accounts were filed. Debts and expenses of Various kinds, amounting to about five thousand dollars, had been, at that period, paid, and the stock dividends and interest on the loans had been collected. If to these we add the ordinary services of proving the will, appraising the assets, filing the inventory, &e., we have the sum total of all that was done by this corporation for this estate. When, in connection with this meagre array of services, we consider the fact that, by an Act of Assembly, this corporation is relieved of all responsibility, which otherwise might attach to it, from a depreciation of the stocks whilst in its possession, we cannot but think that it was far overpaid in the charge and allowance of two thousand and ninety-five dollars in addition to one hundred dollars as a counsel fee. We incline, rather, to approve the auditor’s award of five hundred dollars, with the counsel fee, as a more fair and just compensation. As we are not certainly informed whether, since the filing of the accounts, now in hand, the executor has converted stocks sufficient to meet the legacy of Mrs. Lawrence, we may add that, if this has been done, or if not so done, when such conversion is made and the proceeds thereof passed to the credit of the trust estate, an additional allowance may be made, to this executor, in a sum not exceeding two hundred dollars, to be paid out of the residuary estate. It is to be understood, however, that this is to be credited on the executor’s account as of the date when the conversion of the stock into cash has been accomplished and the proceeds passed to the trust; that it is not to be dated back so as to anticipate interest due to the estate, for this is a method of anticipating the compensation which may result from future services that is not commendable.

The decree of the Orphans’ Court, so far as it embraces the compensation of the executor, is now reversed, at the costs of the appellee, and the report of the auditor is restored and confirmed.

Paxson, J., dissented.