Wagner's Estate

Opinion by

Trexler, J.,

The five defendants bought the farm of their deceased father, which was sold by his widow as trustee in partition proceedings. They received the deed but did not pay the consideration money. Instead, they gave a note payable sixty days after date, which had an indorsement on its back, without date, to the effect that the consideration was to be paid out of the shares of the purchasing heirs, to be treated as an advancement to them, and the note was not to draw any interest at any time, nor be repaid, unless to such extent as funds were required to pay the cost of the settlement of the estate, the debts, or the distributive shares of the other two heirs; the purpose being that the purchasers might take the deed promptly and thereby facilitate the distribution of the funds in the hands of the trustee.

We need not, for the purposes of this case, question the fairness of the method of settlement so far as it only included the distributive shares of the defendants. The consideration to be paid for the farm so far as it was met by their shares in the estate, may be regarded as an advancement made to them by the accountant. On this the orphans’ court did not require the payment of interest and did not surcharge the accountant. They would have ultimately received the money. But as to the excess over their distributive shares, the argument fails. As to that, the rule that is common to all transactions of this kind must prevail, that the deed having passed, the purchase money is due and bears interest.

The defendants had the ownership of the farm and the right to its occupancy and its products. Part of the shares of the other heirs not participating in the purchase was represented in the purchase price of the farm inasmuch as it exceeded the distributive shares of the purchasers. The other heirs did not participate in the benefits resulting from ownership. Certainly the accountant could not take one heir’s share, or a part of it, and lend it to another without exacting interest. This was practically what was done in this case.

We think the lower court was right in surcharging the accountant with interest on the purchase price of the farm so far as it was in excess of the distributive shares of the heirs who purchased it.

The assignments of error are overruled, the decree is affirmed, and the appeal is dismissed at the cost of the appellant.