Weschler's Estate

Opinion by

Mb.. Justice Potteb,

The testator directed that his malting business should be continued for at least five years after his death, and that during that time so much of the net profits should be given annually to his children as could be divided without impairment of the capital or injury to-the business. He further directed that when the business should be closed, the capital should be divided into five parts; two of the parts were given to trustees to pay over the interest and income thereof annually to his two daughters during their lifetime, and the principal to the children of said daughters.

The business was carried on from the death of testator, in 1893, until in 1897 it was sold out. During that period, as found by the auditor, the net profits were $130,076.37, and of this amount $44,472.45 was distributed to the legatees, which gave them each $8,894.49. If the entire amount of the profits had been distributed each would have received $26,015.27. The auditor decided that the daughters were entitled to receive the entire sum, and awarded to each the sum of $17,120.78, that being, with the amount already paid them, the one-fifth share of the undivided profits earned during the time the business was carried on after the death of the testator.' The executors excepted to the finding of the auditor in this respect, but the court below overruled the exceptions, and his action in so doing is here assigned as error.

It is argued on behalf of the executors that a portion of the profits had been, with the consent of all concerned, transferred from the profit account to the capital account by means of necessary expenditures in the enlargement of the plant before it was sold. It is true that the improvements were authorized by all the heirs. But we see nothing in the agreement which would justify charging the cost to and against the profit account. As a matter of fact it does not seem to have beemso charged on the books. All the resources of the estate were apparently blended in one common fund, so that it did not appear whether the cost was paid from profits or from capital account. Nor would it appear to be of any practical importance. For the final sale of the property was made at a figure which showed a gain of $253,500.37 over the cost of the plant, and this was all treated as an increase of capital account, and the proportionate share of the daughters therein was held by the trustees, for the daughters, under the terms of the will. So that under no circumstances is there any just cause for complaint by those interested in the estate in remainder. The improvements made were considered by all concerned as beneficial to the estate, and may reasonably be supposed to have aided largely in bringing about the sale at an enhanced price. And again, as is suggested by counsel for the appellees, the fund primarily liable for the debts of the decedent, was the property, real and personal, of which he died possessed. This was sufficient to pay all liabilities and leave a large excess. So that there was no occasion to seek to transfer the burden of discharging the debts, to the profits of the business earned after the death of the testator. We coincide with the view taken by the auditor, which was confirmed by the court below. The decree of the orphans’ court is affirmed, and this appeal is dismissed at the cost of the appellants.