Wetherill v. Commonwealth ex rel. Fornance

Opinion by

Mr. Justice Steerett :

In June, 185Y, letters of administration de bonis non cum testamento annexo on the estate of Jacob W. Seitzinger were issued to his son Jacob J. S. Seitzinger, who gave bond in the penal sum of $20,000, with William Wetherill and James S.. Hill as sureties. The administrator’s first account was filed in 1868, and his final account in 1873. In the latter he charged himself as follows:

Bond and mortgage of the Forest Improvement ■Company, credited in first account, which has since been paid ........................... $22,500.00

Interest on said bond and mortgage to May 11, 1868, when the same was paid................ 15,948.96

Due bills on hand and credited in his first account.....:............................... 3,094.16

Loan to John H. Swaby, credited in his first account..................................... 700.00

Interest received on money loaned, invested, and money in his hands.......................... 6,123.03

Total.................................. $48,366.15

After taking credit, among other things, for $10,143,63, shown to be due him by his first account, the balance for distribution was over $25,000. The auditor appointed to distribute this balance reported a schedule of distribution, in February, 1879, and the case was so proceeded in that a final decree was made and afterwards affirmed by this court. In the meantime the accountant became insolvent, and the distributive shares of the heirs remained unpaid. In September, 1882, this action of debt on the administration bond was brought in the name of the commonwealth to use of Joseph Fomance, administrator, etc., against James S. Hill, one of the sureties, and the administrators of William Wetherill, the other surety, who died about ten years before. The record was amended by striking therefrom the name of James S. Hill, one of the defendants, thus leaving the personal representatives of William Wetherill sole defendants. This action of the court has been complained of, but, as we think, without any just cause.

Shortly thereafter, the other distributees made application and became parties plaintiff to the suit. The original use plaintiff having elected to try his case separately, a verdict was rendered in favor of the commonwealth for $20,000, penalty of the bond, and the sum due Joseph Fomance, administrator, etc., was found to be $7,162.75, the full amount awarded him by the decree of distribution, with interest from date thereof. Subsequently, the ease as to claims of the other use plaintiffs was tried, same verdict rendered in favor of the commonwealth, and the respective amounts due the beneficial plaintiffs fixed at about 89 per cent of the sums awarded them respectively by the decree of distribution, without interest. Judgments having been entered on the verdicts, these writs of error were taken thereto. The cases were argued together and are so closely related that they may be disposed of in the same way.

The main question involved in the several specifications of error is whether the sureties on the administration bond' are liable for the admitted default of their principal in not paying to-the distributees the several sums awarded to them by the decree of the orphans’ court above referred to.

While plaintiffs in error concede the correctness of the general principle, recognized in Hartzell v. Com., 42 Pa. 459, that the sureties of an administrator de bonis non are answerable for the proceeds of real estate sold by him by virtue of a testamentary power of sale, it is contended the administrator in this case had no such authority to dispose of the lands conveyed by him to the Forest Improvement Company, and from which, as shown by his account, -the distributed balance was realized. In affirming the first point submitted by use plaintiff, the learned judge charged: “That, inasmuch as- the balance with which” the administrator de bonis non “is charged by the auditor is the proceeds of real estate, the sureties on the bond are not liable for the payment of such balance, unless authority was conferred by the will of Jacob W. Seitzinger to make sale of said real estate;” but in refusing to affirm his second to fifth points, inclusive, and in charging the jury as complained of in the fifth to ninth specifications, inclusive, he held, in substance, that under the undisputed facts in this case the sureties were liable. In this we think he was right. The very able and ingenious argument of the learned counsel for plaintiffs in error has failed to convince us to the contrary.

In the first place, upon the face of the records given in evidence, the commonwealth has a prima facie case. The rendition of an account by the administrator, in which he charges himself with the fund in question, and the action of the court confirming the same and distributing the balance, in connection with the admitted default of the administrator in not paying out the money in accordance with the decree of distribution, are prima facie sufficient to fix his sureties for the devastavit.

Aside from all that, however, the discretionary powers of sale-contained in the will of Jacob W. Seitzinger are not only very broad and ample, but it does not appear that they had been exhausted when the conveyance was made to the Forest Improvement Company in 1857. It appears that, prior to that date, the title to the land embraced in the conveyance was in controversy, and the conveyance was made in pursuance of a compromise of the then pending litigation. The power of the administrator to effect a compromise of the disputed claim, if made and carried out in good faith and for the best interests of the estate, cannot be questioned. The authority vested in him for that purpose is full and complete. After disposing of certain portions of his estate, the testator devises the residue in the-following words: “All the rest, residue, and remainder of my estate, real and personal, including what may be purchased or acquired hereafter in my lifetime, or after my death by my executors as aforesaid, and the reversion expectant upon my wife’s death, of the seventy acres of land first above mentioned,. I devise and bequeath to my executors or executor for the time-being, his or their heirs, executors and administrators, in trust,, by sales, public or private, or mortgages thereof, or from the-rents and profits, interest and income thereof, while unsold, at his or their discretion, at such times and in such manner as-he or they may deem proper, to receive and collect such sum or-sums of money as he or they may deem necessary for the payment of all my debts and the discharge of all encumbrances, upon my real estate of money, and the raising of all or any sum or sums of money that may be required for the payment of any legacies; or for any of the purposes mentioned in this-my will.” He also provides, in the same connection, “That no-persons purchasing from or lending on mortgage as aforesaid,, to my executors, shall be required to see to the necessity or occasion for, or propriety or expediency of, any sales or mortgages-which they may see proper to make; ... it being my will that their conveyances, absolute or defeasible, shall in all cases; be effectual; and that their receipts and acquittances shall in-all cases be final discharges on any sale or sales of my real estate, to be made as aforesaid.” From these and other clauses in the will, it is very evident the testator intended to give his exécuto-rs not 'only full power and authority to sell for any of the purposes named, but also the wildest discretion in the ex•ercise of the powers thus vested in them. By virtue of the act •of February 24.-, 1834, the powers and duties of the executors ■are extended to the administrator with the will annexed.

■ In a subsequent clause of his will, the testator declared: “It is my will, as soon as my debts shall have been paid and all encumbrances upon my real estate discharged, the whole of my remaining residuary estate shall be inventoried and appraised by three persons to be appointed by my executors,” etc. Inasmuch as an appraisement under this clause appears to have been made, it is contended testator’s debts must have been paid and all encumbrances on his real estate discharged, and, therefore, the powers of sale were exhausted. There would, perhaps, be force in this position if it did not appear affirmatively that •such was not the fact. The record No. 176, April Term, 1847, Keim v. Seitzinger, in which the executors of the testator and ■afterwards the administrator de bonis non, were substituted as defendants, shows a large claim against the estate which was uot finally settled until several years thereafter. The prematurely prepared inventory and appraisement of the “remaining residuary estate” could not have the effect of depriving the administrator of the power and authority vested in him by the provisions of the will.

Without pursuing the subject further, we think the learned judge was fully warranted in refusing to affirm defendant’s second to fifth points inclusive, and in charging the jury as he •did on the trial of the first issue.

Several errors are assigned to the rulings of the court on the trial of the second issue, in none of which do we think plaintiffs in error have just reason to complain. They submitted a point on which the court was requested to charge: “That if plaintiffs are entitled to recover at all, each plaintiff is entitled to recover his pro rata share of the sum of $12,837.25, being balance of penalty of the bond in suit, remaining after the payment of the . . . judgment in favor of Joseph Fornance, administrator.”

This point was rightly refused. The verdict should have ascertained the amount due each plaintiff, with interest from the date of the decree in the orphans’ court. The judgment in favor of the commonwealth would, of course, be for $20,000 and costs, and could in no event exceed that sum; but each of the use plaintiffs, the original use plaintiff as well as those who afterwards became parties to the suit, were entitled to have the amounts due them, respectively, ascertained by the jury, as though the penalty was sufficient to cover all. Inasmuch, however, as the aggregate claims of the use plaintiffs exceeds the penalty of the bond, the court, in the exercise of its equitable powers, should so control the execution or executions, if any are issued, as not to permit either of them to collect or receive more than his pro rata share -of the $20,000. Neither of the use plaintiffs has any equity that is superior to that of the others.

It follows, from what has just been said, that the court erred in that portion of the charge covered by the second specification,, but the error is one of which defendants below have no reason to complain. They are not prejudiced thereby.

There was no error in rejecting the deed referred to in the third specification; nor, for reasons suggested by the court below, was there any error in rejecting the several due-bills mentioned in the fourth specification.

The judgment in each case is affirmed.