McPherran's Estate

Opinion by

Mb. Justice Potteb,

The thirty assignments of error in this case have been grouped by counsel, in the argument, so as to raise six independent questions.

1. Fourth and sixth assignments. On January 20, 1895, John P. MePherran and wife conveyed to Porter W. McPherran, the decedent, certain real estate in Harrisburg known throughout these proceedings as the “ Eby lots ” for a consideration of $7,500. The deed was an absolute deed in fee simple containing the words “ grant, bargain, sell,” and also contained a receipt signed by the grantor for $7,500, the consideration mentioned. There was no reference in the deed to any incumbrance, but in point of fact the land was subject to a mortgage created by the grantor, upon which there was still due •when decedent died, the sum of $4,128.25. When the administrator sold the Eby lots, the sale was made subject to this mortgage and the administrator has accounted only for the purchase money in excess of the mortgage, which was $1,800. The appellant asked the auditor to surcharge him with, the amount of the mortgage on the grounds (1) that by the terms of the deed the decedent was entitled to receive an indefeasible estate in fee simple free'from incumbrances and therefore at the time of his death he had a right of action against the grantor for the amount due upon the mortgage; and (2) the grantor being administrator, and indebted to the estate as claimed, should have charged himself in his account with the amount of his indebtedness.

The only evidence of the payment of the full consideration money by decedent was the receipt for $7,500 contained in the deed. The auditor held that this receipt was merely a formal matter and would not interfere with the assumption of the mortgage by the grantee as part of the $7,500, and the burden was upon the appellant to show payment of the full consideration. He found that appellant had failed to show that decedent had paid or obligated himself to pay the full sum of $7,500 and that the facts and circumstances of the case pointed the other way. He therefore declined to surcharge the accountant as requested.

The auditor also calls attention to the fact and counsel for appellee bases an argument upon it, that no exception was filed to the account on this ground, and that therefore under a rule of the orphans’ court of Huntingdon county it cannot be considered. It appeared that an exception was filed nunc pro tunc on January 7, 1904, after final decree. Appellee claims that this exception was not in proper form, because it raised a question of fact and was not verified by affidavit as required by rule. Appellee also alleges that leave of court was not obtained for filing the exception nunc pro tunc; but the exception itself recites that it is filed by leave of court. However this may be, we have the finding by the auditor, that as a fact the mortgage was part of the consideration mentioned in the deed. This finding was sustained by the court, and we will not disturb it: Mayhew’s Estate, 155 Pa. 94; Prouty v. Prouty & Barr Boot & Shoe Co., 155 Pa 112; Lewis’s Appeal, 127 Pa. 127.

In Nichols v. Nichols, 133 Pa. 438 (454), Justice Green said: “ It is perfectly well settled law that receipts, whether contained in deeds or elsewhere, are not conclusive of the payment of money, but only prima facie proof and always open to explanation. Thus, an acknowledgment of the purchase money in the body of a deed and a receipt indorsed, are not conclusive evidence of such payment. A receipt for the purchase money indorsed on a deed is only prima facie evidence and may be rebutted by evidence.” •

2. First, second, seventh, eighth, ninth, thirteenth and twenty-sixth assignments. Two properties of the estate, known as the North Sixth street property and the Eby lots, were purchased by the administrator by leave of court at his own sale. It was alleged that he had actually paid for these properties with the funds of the estate and had subsequently sold them at a considerable profit, and the auditor was asked to surcharge him with the amount of this profit, and also with interest and the amount claimed by him for commissions on the sales. The auditor found that the testimony failed to establish these conclusions of fact, or that the administrator used the funds of the estate for his own purposes. He further found, as a conclusion of law, that when-an administrator purchases lands at his own sale, by permission of court, and the sale to him is confirmed by the court, he acquires a title in fee simple and is not responsible to the estate for any profits he may realize on the transaction. He also found as a fact, that the evidence did not show a profit at this stage to the administrator.

The matter of allowing the administrator to purchase at his own sale, was one which addressed itself to the sound discretion of the orphans’ court, and we see no reason whatever in this case, why we should attempt to revise that discretion. Nor will we disturb the findings of fact alluded to in these assignments..

3. Eleventh, twelfth, twenty-fifth, twenty-seventh and twenty-ninth assignments. By the efforts of counsel for appellant, the accountant was surcharged in certain amounts.. The counsel for the guardian of Frank P. Beam who was also counsel for the administrator, gave no assistance to appellant’s counsel in this contest but on the contrary opposed the surcharges. The appellant claimed (1) that he alone should be given the benefit of these surcharges; and (2) if the auditor should deny him such preference, then he is at least entitled to an allowance out of the fund realized by the efforts of his counsel for their compensation. The auditor refused to award the entire fund to the appellant or to make any allowance for his counsel.

His reasons for declining to allow the claim of W. S. Mc-Pherran to be given the benefit of the entire surcharge, to the exclusion of other creditors, were, first, because he had found no bad faith or gross neglect on the part of the accountant, and, secondly because in his opinion the fact that the attorneys for the guardian of Beam also represented the accountant does not exclude the former from the benefits of any surcharge that has been made. We think these reasons are sound.

The claim for an allowance of counsel fees does not appear to have been made at the audit, and was not considered by the auditor in either of his reports, and the question apparently was first raised by the twenty-third exception to the supplemental report.

4. Third and twenty-first assignments. The accountant, John P. McPherran, presented a claim upon a promissory note for $1,371.77, made to his order by the decedent, dated January 20, 1895, at one day. Decedent died September 13, 1896. The note was objected to, on the ground that it had been overdue at date of decedent’s death and was presented by his administrator, without any proof that it had not been paid and surrendered to the maker, or that it was in the possession of the payee at the time of the maker’s death. It was claimed that under the circumstances a presumption arose that it had been in decedent’s possession and the claimant had found it among his papers after his death. The auditor allowed the claim for the reason that the note was included in the schedule of debts annexed to the petition to sell the real estate of decedent, and its validity was attacked in an answer filed by tbe appellant to such petition, and the order of sale was made by the court notwithstanding.

As the auditor has found as a fact that nothing in the circumstances would indicate anything like fraud, it was not necessary for the administrator to prove negatively that he did not hold the note in his individual right. Mere possession by an executor of a note or bond payable by the decedent to the executor, will not prevent a recovery: Kuhlman’s Estate, 178 Pa. 43.

The execution and delivery of the note by P. W. McPherran, the deceased, does not seem to have been questioned, before the auditor, and we see nothing in the evidence which would prevent this claim from participating in the distribution.

5. Seventeenth assignment. This assignment relates to the finding of the auditor that 13,000 of the money of the minor, Frank P. Beam, was invested by his guardian, the decedent, in the Sixth street properties and in awarding that sum in full out of the proceeds of the sale of those properties. This appears to have been purely a question of fact for the auditor. Appellant contends that this finding depends upon the admissibility of the testimony of the accountant. But there is sufficient evidence to warrant such finding without considering the testimony of the accountant.

We do not see that the testimony of John P. McPherran is in any way adverse to the estate of P. W. McPherran. It did not charge that estate with any more money than it was admittedly responsible for, by reason of P. W. McPherran having been the guardian of Frank P. Beam. The testimony only went to trace the fund, and show where it had been invested.

6. Eighteenth assignment. The appellant offered to show that the date in decedent’s account book had been changed from January 20, 1890, to January 9, 1890, by the administrator, after decedent’s death. But the auditor held, "and we agree with him, that the alteration if made, was entirely immaterial, so that this assignment is without merit.

All the assignments of error are dismissed, and the report of the auditor, as sustained by the court below, is approved.