Wagner's Estate

Opinion by

Mr. Justice McCollum,

The principal question raised by this appeal is whether the learned court below erred in surcharging Peter S. Hay, the executor and accountant, with the sum paid to him by Elijah Wagner, the testator, as the consideration of his agreement to furnish the latter while he lived “ with lodging, boarding and necessary clothing, and in sickness cause him to be properly cared for.” This question was considered in the ease of Evora N. Smith v. Peter S. Hay [the preceding case], which was an issue to determine whether Hay was indebted to the testator in that sum with interest thereon from the time he received it. and we there held in an opinion filed at this term that he was not so indebted. As the facts relied on to support the surcharge appeared in that case we need not repeat our former statement and discussion of them. It is enough to say of these facts that as they were insufficient to sustain the verdict in that case, they fail to justify the surcharge in this.

We think the auditor did not err in admitting in evidence the record in the feigned issue. It was proper for his consideration, independent of the question whether he was bound by it or not. For a like reason we think the agreement of Sept. 29, 1884, should have been admitted. In Smith v. Hay, supra, we sustained the court below in rejecting the offer contained in the sixth specification. It was not competent to affect the written agreement and was properly overruled by the auditor. It is conceded by the appellee that if the executor is not surcharged with the amount he received as the consideration of his agreement above mentioned, the restriction complained of in the third specification is erroneous.

The fourth and sixth specifications of error are dismissed and the other specifications are sustained.

Decree reversed and record remitted, with direction to enter a decree in accordance with this opinion.