Lloyd's Estate

Mr. Justice Woodward

delivered the opinion of the court, October 16th 1876.

These appeals are from decrees of the Orphans’ Court confirming the report of an auditor upon the account of W. H. Gardner, administrator de bonis non eum testamento annexo of Gilbert L. Lloyd, deceased, and confirming the report of the same auditor upon the account of the same accountant as executor of the last will and testament of Hannah Lloyd, deceased. A third account of the trusts created by Mrs. Lloyd’s will has been brought up by the-record. That, however, contained the distribution of the fund charged to the accountant as executor.' The particular items in the account of the administrator de bonis non were made subjects of exception only as they resulted from and were connected with the errors alleged to have been committed in the adjustment of the executor’s account. The disposition of the executor’s account, therefore, will decide all the questions raised.

The decision by the auditor of the exceptions referred to him, in the absence of the counsel of the legatees of Mrs. Lloyd, was unusually prompt, and the refusal to open the case on their application for a rehearing was unusually peremptory. This summary action is to be regretted, for its effect must be to delay the determination of this controversy. With no means of ascertaining the true merits of the questions at issue beyond the facts which the accounts themselves disclose, there would be hazard of injustice to the appellee if this court should undertake to make a final decree. The conclusions of the auditor are not warranted by any evidence contained in his report. Whether those conclusions would be sustained by the actual facts attending the settlement of the estates could only be known as the result of thorough investigation, and no investigation has been had.

Mrs. Lloyd’s will was proved on the 10th of January 1870. On the 12th of February 1870, the executor converted United States bonds into-cash to the amount of $26,187.41. He charged himself the same day with a cash balance in the First National Bank of $1168.52, and with the balance of a judgment of Patterson v. Irwine, and the proceeds of a judgment of Wightman v. Irwine, amounting together to $3128.03. He received from H. L. Patterson $5000 on the 26th of February, $2500 on the 6th of March, and $6000 on the 16th of May 1870. Various sums were paid to him up to the 1st of August 1871, including such items as Hollidaysburg water bonds $2050, on the 23d of August 1870, Juniata bonds $3325, on the 22d of September 1870, and Hollidaysburg seminary mortgage $10,857.50, on the 25th of March 1871. As early as the 1st of August 1871, the entire assets of the estate of Mrs. Lloyd, amounting to $67,036.18, passed into his hands in cash. And in his hands the whole fund remained until June 1875, except $3448.26, paid out in' the course of administration, and $2077.95 shown by the account on the estate of Gilbert L. Lloyd to have been expended in the progress of a contested litigation. On the 18th and 21st of June 1875 $11,900.23 were paid to satisfy the Farrell judgment, for costs and counsel fees connected with that judgment, and for fees to the register. The payments to the legatees, amounting to $43,710, appear to have been made on the 21st of June 1875.

It is manifest from this statement that a very large sum of money remained in the possession and under the control of the appellee for a period exceeding five years. Nothing shown as to the circumstances of the estate Avarranted the sale of the United States bonds in 1870. It is not enough to say that the time when payment of the Earrell claim would be demanded was indefinite, and that, as administrator do bonis non of Gilbert L. Lloyd’s estate, the appellee could be suddenly called on to meet that. In actual fact, the demand upon him was not made until June 1875. If earlier payment had been required, $26,000 of government securities, immediately and constantly available, were ample resources to satisfy a claim of $13,000 ; and the possession of those securities, Avith the means Avithin reach from other sources, afforded perfect protection against any requisition to which the appellee could possibly have been made subject. The other assets were mainly in. large sums and were promptly paid. It is not conceivable that a business man of average sagacity, owning such an estate in his OAvn right, under the circumstances disclosed, would have so managed it as to render it for five years utterly unproductive. The tabular statement appended to the paper-book of the appellants exhibits an average balance of $18,229.23 in the hands of the appellee throughout a period of sixty-four months, the interest on which would amount to $5843.35. Even a larger sum would seem indicated by the items in the several accounts. But the statement refers to a “schedule of monthly payments made,” which may have included advances on account of legacies. As the case stands upon the facts, it is one to require a surcharge of interest against the appellee. If this court Avere to undertake to make it, however, under the lights afforded them, a possible wrong might be inflicted which it would be difficult and perhaps impossible to cure. In order to insure a fair hearing of the equities of the parties, the record must go back for a fresh reference of the original exceptions to an auditor, an investigation by him, and a decree in view of the neAV inquiry by the Orphans’ Court. Such a decree made up under the eye of a law-judge Avould seem advisable. The submission of such questions as this case presents to associate judges is always a hazardous experiment.

The remaining question arises out of the executor’s claim for commissions. He has charged five per cent, on the whole principal of the estate. A trustee should be justly compensated for services, responsibility and risk. The character of the trust he has administered, the nature of the duties he has performed, the extent and value of the labor he has bestowed, and the kind of securities in which he has found the funds of the estate to be invested when it came to liis hands, are all elements to be considered in adjusting the amount of his allowance. Of the $67,036.18 to which this estate amounted, $53,047.94 were collected in only seven different sums, and $42,190.44, covering six of these sums, were received between the 12th of February and the 22d of September 1870. No facts have appeared to show that even the usual labor of an executor has been performed by the appellee. The credits taken as executor seem to have been for ordinary disbursements, and those taken as' administrator do bonis non were for items connected with the claims of Farrell, Christy and McNamara alone. At least reasonable fees were paid to counsel, for $595 were allowed to the appellee as executor, aside from the account of Mr. Blair against the testatrix of $539.41, and $520 were allowed to him as administrator de bonis non. As has been said, the conversion in 1870 of all the United States bonds into cash was unjustifiable. All the exigencies of the estate could have been met by retaining them as the testatrix had left them until the use of their proceeds was required. The principal sum in dispute in the Farrell case did not exceed $5000. The final judgment was entered for $4215.23 besides costs. To the extent of over $40,000, the duties of administration appear to have been little more than clerical. Indeed, the sums disbursed to the legatees in the trust account were $43,710. Collected without difficulty or delay as the assets were, with no doubt or controversy attending the distribution, and with no proof of exceptional or even of ordinary services,.the claim for compensation was too large. But upon this question, as well as upon that relating to the surcharge of interest, it is feared that if this court were to act finally now, rights of the appellee might be destroyed which he would be able to establish by satisfactory proof, It was said at the argument on his behalf that he had many suits to look after; that he procured a large amount of new testimony in the Farrell case; and that he was compelled to make frequent journeys to Cambria county to adjust items of business there in which Mr. Lloyd had been concerned. It is true that details of this kind ought to have appeared on the face of the accounts, or in evidence before the auditor ; and it is true also that the entire absence from the record of all illustrative and explanatory facts was the result of the summary and hurried action of the auditor and of the ill-advised and persistent opposition that was made to a rehearing on the application of the counsel for the appellants. But the truth still remains that a, decision in view of the existing conditions of the case would be made in ignorance of possibly justifying circumstances which the appellee would have had the right in a thorough investigation to prove, and might produce in a different direction consequences as mischievous as those which flowed from the mistaken haste of the auditor and the Orphans’ Court.

The decree is reversed, the report of the auditor is set aside, and a procedendo is awarded.