Appeal of Brolasky , 3 Pennyp. 329 ( 1883 )

April 30, 1883.

— The opinion of the Court was delivered by

Sterrett, J.:

In his account as acting executor of his father’s will, appellant claimed credit for $1,040, the amount of his own note included in the inventory and appraisement. His contention was that the indebtedness to his father, represented by the note, was discharged by the following clause in the will, viz: “All charges against any of my children for moneys received by them or paid for their account, standing on my books at the time of my decease, shall be void.”

The learned judge before whom the account was audited found as a fact that the note in question had never been entered in testator’s books; that another note, of earlier date, for $1,020 had been so entered, but the entry thereof had been afterwards erased. It was claimed that the first-mentioned note was a second renewal of the latter,. but that fact, if material, was not clearly shown.

From an inspection of testator’s books, it clearly appeared that the entry of the $1,020 note had been erased ; and all the circumstances connected therewith, pointed to the conclusion that the erasure had been made by the testator himself.

The note in question having been included in the inventory and appraisement of testator’s personal estate, appellant, as maker thereof, was prima facie chargeable with the amount.

There was nothing whatever upon the face of testator’s books to bring the note within the discharging clause of the will above quoted, nor was there any evidence, aliunde, that tended in the slightest degree to show that accountant had been released or exonerated from the payment of this note. There was no error, therefore, in surcharging him with the amount complained of; and hence the first and second assignments are not sustained.

The third and fourth assignments, relating to surcharge of commissions on $877 33, are without merit. The property sold was subject to an irredeemable ground-rent, the capitalized amount of which was the sum above named. For the reason given by the auditing judge, it is very apparent that accountant could have no just claim to commissions on that sum.

Decree affirmed and appeal dismissed at costs of appellant.