Hess' Appeal

Mr. Justice Sterrett

delivered the opinion of the court, March 1st, 1886.

Notwithstanding the very able argument of the learned counsel for appellants we are not convinced that any error to their prejudice has intervened.- An examination of the testimony, in connection with the Auditor’s report and the well-considered opinion of the court below, has satisfied us that the surcharge complained of in the first and third specifications was fully warranted.

While there is some testimony tending to prove the contrary, it is clearly and satisfactorily shown that James Hess accepted and held the title to the lot in question, in trust for his mother; and, when he shortly afterwards conveyed it to W. H. Deshler, the consideration money was secured and held by him upon the same trust. The testimony of Mr. Deshler to that effect is so distinct and positive, and so fully corroborated by other facts and circumstances, that there can be no doubt such was the distinct understanding between James Hess and his mother. The existence of the trust, and its recognition by both parties before as well as after the sale and conveyance to Deshler, is clearly and conclusively established. So far as conversion of the land into personalty is concerned, the trust was executed. The appellees are not seeking to enforce it against the land, and hence the provisions of the Act of 1856 cannot stand in their way: Maffit v. Rynd et al., 69 Pa. St., 380. When the property was conveyed to Deshler, Hess accounted to his mother for the greater part of the hand money, and took a mortgage to secure the deferred payment. Both the learned Auditor and the court below found, in substance, that he held the title, as above stated, in trust for his mother; and after the sale to Deshler declared the mortgage belonged to her, and treated it as her property. If so, it is rather late to do what Hess, in his lifetime, never attempted — repudiate the trust.

. For these and other reasons, fully elaborated in the opinion of the learned president of the Orphans’ Court, we think the accountants were rightly surcharged with the sum of $2,187.66. The first three specifications are therefore not sustained. The court was also right in’holding that the books of James Hess were not competent evidence for the purpose for which they were received by the Auditor.

Decree affirmed and appeal dismissed at the costs of the appellants.