Price's Estate

Mr. Justice Paxson

delivered the opinion of the court,

The first assignment alleges error in surcharging the accountant with the sum of $500', paid counsel for professional services. Upon what ground said surcharge was made we are not informed, as no opinion was filed by the learned judge of the Orphans’ Court. It is always desirable in such cases to know the reasons of which the decree of the court below was predicated. The auditor’s report, however, discloses sufficient to show that the action of the Orphans’ Court should be in part sustained. The executor was also the surviving partner of the testator ; in his account he charged himself with the sum of $2662.89, as the value of the deceased partner’s interest in the firm. The auditor surcharged him with the sum of $2242.09, as the real value of said, interest. The contention upon this question protracted the audit very greatly, and involved a tedious examination of the books and the business of the firm. The burden of this increased expense ought not to be thrown upon the estate. It should be borne by the unsuccessful party by whom it was occasioned. It would be manifestly unj ust to charge the widow, who succeeded in thus surcharging the accountant, with the amount expended by him in counsel fees in resisting her claim. But we think it was error to strike out all allowance for counsel fees. The accountant was entitled to the services and advice of counsel, and so far as those services were rendered for the benefit of *the estate, or to protect the accountant in his rights, compensation should be made therefor out of the estate. An examination of the auditor’s report discloses the fact that the widow objected to a number of items on the credit side of the account, which were allowed by the auditor. Among them was the item of funeral expenses. It is also noted that she attempted to surcharge the accountant with a much larger sum, as the value of the testator’s interest in the firm, than was found by the auditor. It is only right that a reasonable allowance should be made out of the estate, to pay for this portion of the services of counsel. We think $150 is sufficient for this purpose. The accountant must be surcharged with the residue, to wit, $350.

We think the court below erred in disallowing the accountant’s claim to commissions. The auditor finds that he was not guilty of actual fraud or bad faith. It would be a harsh rule to hold that, in the absence of fraud or bad faith, an accountant should be deprived of his commissions merely because he has been surcharged in his account, especially when the subject of the surcharge was the value of the testator’s interest in the profits of a business. It is unnecessary to refer to the cases upon this point. The whole subject has been thoroughly discussed in a number of recent decisions. None of them sustains the disallowance of commissions in this case.

No question as to the amount of the auditor's fee was raised in the court below. It was fixed by the agreement of the parties, with the approval of the court. The question is whether it shall be paid by the accountant or by the estate. The court below surcharged the accountant with all but fifty dollars of the amount. What we have said upon the first assignment of error is equally applicable here. The necessary and proper expenses of the audit should be paid out of the estate. So far as they were increased unnecessarily by the accountant the burden should fall upon him.

It is not easy to fix the precise line of division, but in our judgment the estate should pay $150 of the auditor’s fee. The. accountant must be surcharged with the residue thereof, to wit, $200.

There are three other appeals in this estate, viz.: Appeal of Sarah Martip, legatee, appeal of St. John’s Orphan Asylum, legatee, appeal of House of Hood Shepherd, legatee. Neither of these appellants appeared before the auditor to claim any legacy or bequest under the will, nor were the appeals pressed, upon the argument here. The auditor has given satisfactory reasons why the payment of the respective legacies should he postponed until after the termination of the life estates. As to each of these appeals the decree of the court below must be affirmed, and the appeals dismissed at the cost of the respective appellants.

In the appeal of Thomas J. Martin, executor, the decree is reversed, and the record remitted for further proceedings.