Springer's Estate

The opinion of the court was delivered, by

Strong, J.

— This is an appeal from a decree of the Orphans’ Court, overruling an exception to the auditor’s report upon the account of the executors of the will of Levi Springer, deceased. The exception was that the auditor erred in not charging the accountants with the amount which the testator had paid for two tracts of land, devised by him to be sold, and -which the executors had sold at less price. The auditor found that the lands were sold under a power contained in the will, and that there was no fraud in the sale. These findings were not directly traversed by the exception, and they are therefore to be taken as conclusive. But it is contended the lands were sold for a less price than their value, and for less than the sum which the executors had declared was the minimum for which they would let them go. It is not alleged they were not sold for the highest and best price that could have been obtained for them at the time of the sale. The auditor has expressly found that they were. Upon what principle, then, the executors can be surcharged with any sum above that for which the lands were actually sold, we are unable to discover. Their declarations made before the sales that the lands would not be sold unless they would bring their value, or as much as the testator had paid for them at any rate, are not to be regarded as a guaranty that- such a price should be obtained. And even if they are, it would be no reason for a surcharge. In such a case they might be personally liable at the suit of those to whom the guaranty was given, but they are.liable as executors or trustees to a surcharge only in case they were guilty of fraud or supine negligence equivalent to fraud. But these were negatived by the auditor, as they should have been in view of the evidence. In Moore’s Appeal, 10 Barr 438, Judge Rogers said: “ The general rule unquestionably is, that a trasteé is not liable for more than he receives of the profits of an estate, for he is considered in the character of a stakeholder, or bailiff. If you wish to surcharge him beyond the actual profits, you must prove satisfactorily supine negligence or wilful default.” So far from there being any proof of such negligence or default in the present case, in addition to the auditor’s report to the contrary, there is no inconsiderable evidence that the executors put forth active efforts to induce bystanders at the sale to bid freely, and to continue their bidding. There is, then, no reason shown for a surcharge.

It may be added that, before the auditor, no attempt appears to have been made to charge the accountants with any sum above that for which the lands actually 'sold. The present exception was an after-thought.

Decree affirmed.