Estate of Whitman

Opinion by

Mb. Justice Fell,

The assignments of error are to the refusal of the court to surcharge the accountants with the amount of losses incurred in carrying on the business of the testator under the direction of his will. There is no question of partnership and separate property or of the rights of creditors to be considered. The business was the individual business of the testator, and the appellant is a daughter who shares in the residuary estate only.

The business in which the testator was engaged had been conducted by him for about twenty years, and he desired to preserve it for his family. His will contained mandatory directions to his executors to carry on the business for two years and he directed that the stock, capital and property should be maintained in the same condition as to value as that in which it was at the time of his death. His entire estate, except his household furniture and three vacant lots of land, consisted of the stock, machinery, fixtures and book accounts of his business. His debts, excepting that for the rent of the house in which he lived were all debts of his business. He directed that the lots should be sold and the proceeds used for the purposes mentioned in his will. For years he had borrowed money in order to carry on his business, and at his death owed borrowed money, and he must have known that his executors would be obliged to borrow in order to carry out his directions.

The accountants acted in entire good faith, and with at least ordinary prudence. The business was not prosperous when it came into their hands. They were at the beginning of a period of great business depression and distrust. They encountered unexpected difficulties because of the necessity of removing the factory, a matter over which they had no control and which could not have been foreseen by them. All that they did in the conduct of the business was fully known to all the parties in interest, and 'it’was done without objection from any of them. Much of which’ complaint is now made by the appellant, she at the time insisted should be done. She had drawn her share of the profits as long as profits were made, and in the early part of 1894, knowing the danger which threatened the business, she wrote to one of the accountants urging him to raise money in order to save it. Under these circumstances, if her rights were as high as those of a creditor of the estate, she would have little room for complaint; as it is she has none whatever.

The decree of distribution is affirmed at the cost of the appellant.