Estate of Crawford

Opinion by

Beaver, J.,

A careful examination of the several assignments of error and of the testimony relating thereto has led us to the conclusion that the fourth assignment should be sustained. The auditor found as a fact that Martha M. Crawford, one of the appellants, paid to the executor of her father’s estate in 1891 the sum of $150. This finding was based upon testimony unequivocal and to some extent circumstantial, which seemed to him to fully justify the finding. Three witnesses testify directly to the payment or to the admission of the executor that he had received it. The source from which the money was derived, the payment of it by one of the witnesses to Martha M. Crawford for the purpose of paying, the payment by her to the executor in the presence of another witness and the acknowledgment of the executor to a third witness that he had received it constituted such clear and positive testimony as to the payment as to outweigh the recollection of the executor himself, which was the only testimony negativing it. There is nothing in the opinion of the court below reciting facts which justify the overruling of the auditor’s finding in this respect. Inasmuch as the account restated by the auditor shows a balance in the hands of the executor, this sum should bear interest from the date of its payment and the executor should be surcharged the amount of tíre payment, $150, with interest thereon, $54.00, as found by the auditor.

The payment made by Martha M. Crawford to S. F. Thompson, the attorney of the executor, as stated in the fifth assignment of error, rests upon entirely different grounds. This payment was made to Mr. Thompson under an article of agreement for the sale of real estate which was to be binding onty in case the liens could be released. It is admitted that the liens were not released and the sale was never consummated. The money, therefore, does not and never did belong to the estate but is the individual property of M. M. Crawford who paid it to Mr. Thompson and who, of course, has the right to it individually.

The other assignments of error rest upon facts found by the auditor and approved by the court below which, under' the well known rules governing such cases, will not be disturbed, unless there be serious mistake in the findings of fact. A careful examination of the testimony does not reveal sufficient grounds for reversing the findings of the auditor and the conclusions of the court based thereon as to any of the items complained of by the appellants.

The costs attending the distribution of the balance in the hands of the executor were very properly payable out of the estate and we see no error in the decree of the court so directing. The assignments of error are, therefore, all overruled, except the fourth, the reasons for sustaining which have already been stated. The decree of the court below is, therefore, reversed, so far as it relates to the payment of $150 made by M. M. Crawford to the executor, A. Crawford, in the fall of 1891, and the interest thereon, and the finding of the auditor in regard thereto is confirmed. The executor is to be, therefore, surcharged with the sum of $204 and the record is directed to be remitted to the orphans’ court of Mercer county, in order that this decree may be carried into effect and the money applied according to law.