Mansfield's Estate , 1902 Pa. Super. LEXIS 25 ( 1902 )

Opinion by

Smith, J.,

Though, in the surcharge complained of, this is apparently a hard case, a careful consideration of the evidence has satisfied us of its substantial justice. Whether a demise, with the rent payable at the end of the year, without security, is to be regarded as of itself negligence, may depend largely on local usage and the general course of business under like conditions. But to permit a tenant to remain in possession for three years, while paying, during that period, less than one third of a single year’s rent, with the prospect of further payment growing more and more distant, and with the leased property depreciating from want of necessary repairs, must, under all the circumstances here shown, be regarded as nothing less than supine negligence or wilful default. It does not appear what effort was made to secure a more satisfactoiy tenant, beyond placing a placard on the property; nor, except a superficial explanation by the accountant, is there any evidence to show why the property could not have been leased to greater advantage. While a man may allow his own property to remain unproductive, he may not so deal with property held in trust for another, unless constrained by an overruling necessity, not apparent in this case.

The reduction of the credit for paper hanging, also, is amply justified by the reasons given by the auditing judge.

In refusing to treat the house on Meehan avenue as part of tbe trust estate, and to allow tbe accountant the credits claimed with respect to it, tbe auditing judge was clearly right. That house was no part of the trust property, but was taken by tbe accountant as a payment to be applied on the rent due for tbe property on Pride street. But, as dealt with by the accountant, instead of reducing the debt due the estate, it created a debt which the accountant seeks to cast on the estate. In this matter, the advice of counsel was no justification. There was no legal question involved. Whether the estate would profit by accepting property renting for only $14.00 a month, while subject to a mortgage of $1,800, a sewer lien of $46.50 with interest and taxes in arrear, and needing an expenditure of $138.27 for repairs, was purely a business question. The account shows that, besides the repairs, in twenty months the payments for interest, sewer lien, water and taxes were $419.81, while the rent received was but $280, leaving a total deficit of $312.08. The necessity for these expenditures was apparent at the outset, and the acceptance of the property, with its obvious burden, was, from a business point of view, highly injudicious. What its relation to the trust estate, may be, should the property hereafter become productive, we need not here consider. It is enough that the burden with which it is now charged cannot be cast on the estate.

Judgment affirmed.