Stokes's Appeals

Mr. Justice Paxson

delivered the opinion of the court,

There were two accounts filed in the court below, in the same estate, out of which four appeals have grown. They have been argued together, and may all be disposed of in one opinion. The first account was that of John S. Lamb, trustee of Harriet Ward, as stated by his executor. The second account is that of Edwin L. Stokes, who succeeded John S. Lamb in the trust. The two accounts form a continuous statement of the estate of the said Harriet Ward. The said Stokes is also the executor and trustee under the will of the latter. Two appeals have been taken by him to the decree of the court below upon each of the accounts referred to. One of said appeals is as trustee of the estate of Harriet Ward under the will of John Wetherill; the other as executor and trustee under the will of Harriet Ward. We-will first consider the appeals in the case of the account of John S. Lamb, trustee.

There are ten assignments of error in each of these appeals. Those in the appeal of Edwin L. Stokes, as trustee, will be first considered. The principal cause of complaint is evidently embodied in the first assignment, which alleges error in not awarding to the appellant “ the trust estate, whole and entire, as the same was given, devised and bequeathed by John Wetherill, deceased.” By the terms of the will of John Wetherill, the estate passed directly to the remaindermen upon the death of Harriet Ward. • The words of this portion of said will are as follows: “ And from and immediately after her (Harriet Ward’s) decease, I give and devise the said storehouse and lot of ground and personal estate embraced in this devise, unto her three children, namely, Susan Margaret Kyle, Robert Kyle, and John Wetherill Kyle, or such of them as may then be living, his, her, or their heirs and assigns.” The trustee had no duties to perform to the remaindermen; not even to convey to them. The case is stronger than Bacon’s Appeal, 7 P. F. Smith 504, in which Mr. Justice Strong said, the trustees “ were not at liberty to hold a single hour for the use of those in remainder.” The moment Harriet Ward died, the remaindermen were in by virtue of the will of John Wetherill. The duties of the trustees were ended; there remained only the liability to account. The trust estate as reported by the auditor consisted principally of a storehouse on Front street and certain shares of bank stock. He further finds that no portion of this property has ever been in the possession of this trustee. As the trust was ended by the death of Harriet Ward, this claim is wholly devoid of merit. It is difficult to see its object, unless it be to enable the trustee to charge commissions upon the corpus of the estate. We would not award it to him for this reason'alone.

The second, third, fifth, eighth and tenth assignments of error refer to the same subject as the first and fall with it.. The fourth is to a question of fact, and is not sustained. The sixth and seventh allege error in admitting the testimony of John W. Kyle and Susan M. Miller, to establish that they were the remainder-men under the will; and also to prove the death of Robert Kyle, intestate, unmarried and without issue. As there is no contention about either of these facts, and as this trustee has no right to -interfere if there were, the force of these assignments is not apparent. The ninth exception is fully covered by what has already been said.

The assignments of error in the appeal taken by Mr. Stokes, as executor of Harriet Ward, differ somewhat from those just considered. The first alleges error in not decreeing to appellant interest on the sum of $1017, found as corpus of the trust. The learned auditor finds as a fact that this amount was handed to the cestui que trust as income, and says very properly that “it seems very unjust that interest should be charged him on money of which the cestui que trust had the use and possession.” The second assignment refers to what would evidently seem to be a mistake of $300 in an alleged memoranda of settlement with Mrs. Ward in November 1855. The error appears in the figures as printed. But the paper itself was a mere loose memorandum and formed no part of the account filed. The auditor’s explanation of it is entirely satisfactory. He finds as a fact that the cestui que trust received $300 from her trustee during that month,, and that the accounts between them for two years afterwards were fully covered by receipts of the cestui que trust.

The third assignment alleges error in not awarding to appellant the sum of $221.55, with interest, which it was alleged was due from the trustee to Mrs. Ward upon a settlement in 1862. But the auditor finds that this sum was subsequently paid over to Mrs. Ward, and satisfactory receipts produced therefor. The fourth assignment alleges error in not awarding to appellant the sums referred to on the debit side of the account under date of January 20th 1857, March 2d, April 4th, and-May 4th 1857, amounting to $800. As we see no sufficient reason why these sums should be awarded to the appellant, and as none has been shown to us, this assignment may -be dismissed. The fifth refers to questions of fact which appear to have been correctly decided by the auditor. The seventh alleges that the court below erred in decreeing that the trusts under the will of John Wetherill had expired. We have already passed upon this point. It was not pressed either before the auditor or in this court. The eighth, ninth and tenth assignments relate to questions of fact which do not need discussion.

This brings us to the second account, or the one filed by Mr. Stokes, as trustee of Harriet Ward. Here, also, there are ten assignments of error by “ the trustee accountant,” and seven by the accountant as “ executor of Harriet Ward.” I will consider them in the order in which they are stated. The first assignment filed by the trustee accountant alleges error in not allowing said accountant a commission of two and a half per cent, on “ the corpus of the trust estate.” The commissions claimed were properly disallowed. The auditor finds that the certificates for the bank stocks were never in the possession of this trustee, the same having been held by the executors of the former trustee until the final settlement of his account. Neither was there any re-investment of the funds of the estate. Still less would the trustee be entitled to commissions upon the real estate, which passed directly to the remainder-men without his intervention. If any authority were needed for so plain a proposition, it may be found in McCauseland’s Appeal, 2 Wright 466. The second and third assignments also refer to commissions. We fail to perceive any error as to either. The charge of $25 was for commissions on rents which the trustee did not collect, and the $30.88 was for commissions on income which he had no right to collect. ..It was income which accrued after the death of Mrs. Ward, and the remainder-men had given him no authority to receive it. As to them he was a mere intermeddler, and was not entitled to charge for his services in that capacity. The surcharge of $125 referred to in the fourth assignment was properly made. It was an equitable mode of adjusting the matter to which it refers, which did no injustice to the accountant. The fifth assignment is to a question of fact and is not sustained. The placing of counsel fees upon both the income and corpus of the estate referred to in the sixth assignment, was entirely proper. If it were not so, the remainder-men are the only parties who have the right to object, and they have not done so. The auditor finds that the services of counsel enured to the benefit of those in remainder as well as the life tenant. There is nothing from which we can find that the proportion adopted by the auditor was not just. The seventh specification may be dismissed with the remark that the claim for $10 for stating the account, was not made before the auditor, and could not therefore have been passed upon by the court below. The eighth and ninth assignments are to questions of fact, and are not sustained. Nor do I see any merit in the tenth assignment. This trust was not for the remainder-men, and there appears no good reason why they should contribute to the expenses of the audit.

It remains but to consider the seven assignments filed by Mr. Stokes as executor- of Harriet Ward. As to the three items claimed by the appellant in the first of said assignments, it is sufficient to say that the auditor finds that they were for rents and dividends which did not become due until after the death of Harriet Ward. It is clear that they do not go to her executor. The residue of these assignments have been fully disposed of by what has already been said.

I have gone over these cases patiently and microscopically. This is sometimes necessary in order to see the points involved.

The appeals in all of these cases, to wit, Nos. 206, 207, 208 and 209 of January Term, 1874, are dismissed, and the decrees of the court below affirmed. The costs in each appeal to be paid by Edwin L. Stokes, appellant.