Sewickley Dairy Company's Assigned Estate

Opinion by

Mb. Justice Mitchell,

Notwithstanding the range of the argument this case raises but one question, and that is whether the auditor and the court below erred in refusing to surcharge the accountant for failure to bring suit against certain stockholders for an unpaid balance of their subscriptions. The special facts in regard to those stockholders will be considered in the case of Swearingen v. Sowickley Dairy Company, Byer’s Appeal, post, p. , and are not material here.

The accountant was assignee for the benefit of the creditors of the Sewickley Dairy Company. When he took charge as assignee he found that although the company was insolvent in the sense that it could not pay its debts currently as they fell due, yet its assets were apparently nearly double its liabilities. He sold the personalty for nearly twice its appraised value, and a part of the realty, also at a price above its appraisement. The largest part of the assets, however, was in land, which was still in his hands, when owing to dissatisfaction and differences of opinion he resigned and filed his account. The auditor found expressly that the assignee had used ordinary care, prudence and diligence in his management of the estate, and in reference to the particular item on which it is now sought to surcharge him, the auditor found that he had taken the opinion of counsel and had been advised that if he had any right to sue on behalf of the company, which was at least doubtful, it could not be exercised until the other assets had been administered and shown to be insufficient.

With these facts found by the auditor and not now disputed, there is nothing on which a surcharge could be based. An assignee is not in any sense an insurer that the debts of his assignor will be paid, or even that the assets in his hands will produce their highest value for such payment. He is bound to use diligence, prudence and reasonable judgment and skill, but using these he is not responsible further. The advice of counsel is evidence of care and prudence.

The point is made by the appellee that appellant has no standing to except or to bring this appeal. In the view we take this point becomes immaterial.

Judgment affirmed.