Culbertson's Appeal

Mr. Justice Mercur

delivered the opinion of the court,

The present contention arises under the decree made in Culbertson’s Appeal, 26 P. F. Smith 145. That decree should be interpreted in view of the facts there presented as well as by the language of the decree.

The facts show there had been no settlement in the Orphans’ Court of the administrator’s final account. After the payment of debts, a certain sum remained in his hands; by an agreement of all the parties interested, he was suffered to retain this fund. The interest thereon was to be paid to the widow during her life, and upon her death, the principal to the heirs of the decedent.

In the former case the only question was, whether the administrator should be compelled, by the concurring agreement of the widow and all the heirs, to pay over the fund during the life of the widow. That was the only question in issue and considered by the court below or by this court on the appeal. No controversy then existed as to the definite sum to be paid nor as to the right of the administrator to demand compensation for his services.

In the former decree we instructed the court “ to decree a determination of the trust and payment of the fund.” The decree mentions no specific sum. It was so ordered in view of the fact that the administrator had made no final settlement. It purposely left to the court below the ascertainment of the sum to be paid. This necessarily involved a settlement of the account, and a consequent allowance of such compensation as was just and proper under all the circumstances. As a general rule, all -trustees are entitled to a reasonable compensation for services rendered. We see nothing in the fact that this fund came to the hands of the appellant as administrator, and he retained it under the subsequent agreement to take it out of the general rule allowing compensation. The former decree in nowise precluded a just allowance. It merely ordered the sums, which otherwise would have been paid to the widow and heirs, to be now paid to the widow alone. Such compensation, as in the opinion of the court the appellant is entitled to, should be deducted from the whole sum, and he be required to pay over the residue. Whether the compensation shall come out of the interest, or out of the principal fund, is unnecessary now to decide. Inasmuch as all the parties interested in the fund desire both principal and interest to be paid to the same person, the court is not required to ascertain the relative rights of the widow and the heirs. Its whole duty will be performed in ascertaining the sum due from the appellant and in decreeing it to be paid over to the widow. The learned judge misapprehended our former decree, and consequently the just rights of the appellant were denied in the decree of the court below. It must be reversed.

Decree reversed at the costs of the appellee, and record remitted for further proceedings. ,