Fiscus's Estate , 13 Pa. Super. 615 ( 1900 )

Opinion by

Beaver, J.,

Three distinct questions are raised by the assignments of error. 1. Was the note of $1,000 executed by the decedent and given to his son, without consideration and obtained by undue influence, the decedent being at the time of weak or unsound mind? 2. Was. the evidence in regard to the gift of the traction engine, thresher and clover huller sufficient under the circumstances to establish a gift inter vivos ? 3. Were the commissions charged by the administrators for the settlement of the estate of decedent under the peculiar circumstances excessive ?

We will consider these questions in their order, briefly stating such facts in regard to each as are necessary to an intelligent understanding of them.

1. The claimant, the son of decedent, worked upon his father’s farm for some ten years after he attained his majority, without any special contract as to wages. He lived in the family, was allowed by his father to raise a colt or a calf occasionally— seemed to be allowed the proceeds of a country coal mine upon the farm and had by special agreement the one half of the proceeds of the earnings of the thresher and clover huller for work done for the neighbors, so that at the time of the death of the decedent the son had some money at interest. There seemed to be in the mind of the father some recognition of the claim of the son for further compensation and, in view of the testimony, we think there was sufficient evidence to warrant the finding of the auditor that there was a valid consideration for the note.

The evidence in regard to the decedent’s mental condition at the time the note was given was not very strong. It may be doubted whether a court would have been justified in awarding an issue devisavit vel non upon it. Certainly a verdict sustaining the validity of a will would have been sustained upon it. The claimant, therefore, fairly invokes the rule in regard to the conclusiveness of a finding of fact by an auditor approved by the court.

2. This rule, however, cannot be successfully invoked in regard to the whole of the engine thresher and clover huller. In the claim to it the question is not, was there evidence — conflicting evidence — as to its ownership which makes the finding of the auditor and approval by the court conclusive, but was there sufficient evidence in law to support the finding ? The effort is made to establish a gift inter vivos. In Fross’s Appeal, 105 Pa. 258, where there had been a finding by an auditor and an approval by the court, the Supreme Court reversed the decree of the orphans’ court, because the evidence was not sufficient to support the finding. Mr. Justice Cl auk, in the opinion at page 267, says: “Nor can the claim be sustained as a gift inter vivos. A gift is a contract executed and must be accompanied with such a delivery of possession as makes the disposal irrevocable; the delivery must be according to the nature of the subject and the donor must in some form relinquish not only the possession but all dominion over it. Where these essential requisites are complied with, the gift is perfect and irrevocable. After the decease of the alleged donor, the transaction should be established by clear and satisfactory evidence.” In Scott v. Reed, 153 Pa. 14, it was said: “ But, where an alleged donor has been surrounded during his last sickness by the family and relatives of the alleged donee and the claimant has had opportunities to obtain possession of the subject of the alleged gift without title, the proof in support of the claim ought to be clear and satisfactory upon every point essential to title by gift.” The dangerous character of such claims and the necessity of insisting upon the most convincing evidence in support of them was pointed out in Wells v. Tucker, 3 Binn. 366, and has been recognized in subsequent cases (Rhodes v. Childs, 64 Pa. 18), and tried by the standard here set up and uniformly adhered to. The evidence in regard to the one half of the thresher, etc., was not the clear and satisfactory character which is essential to the validity of such an alleged gift. It may be admitted that the testimony may be sufficient to support the finding as to the ownership of the one half of this machine and that therefore the finding of the auditor confirmed by the court should be to that extent affirmed, but it is insufficient under the well-settled principles referred to to support the finding as to the remainder. One witness testified that the decedent told him that “the half of the machine belongs to Lew and of course I expect he will have it all some day.” There was some evidence that the appellants claimed no more than the half of the machine. The scrivener, who wrote the will which was destroyed, says he was directed to insert a clause bequeathing the one half of the thresher to Lewis, the claimant, but this will was destroyed. Lewis’s testimony was very properly excluded by the auditor but, if it had not been, it only added to the uncertainty. We are of opinion, therefore, that the administrators should be surcharged the amount of the one half of the value of this machinery at the time of the death of decedent. But what was its value ? There is evidence of its cost when new but it had been used several years at the time of decedent’s death, and it would be manifestly unfair to charge the administrators the cost or value of new machinery. We are unable to discover from the testimony what its real value was, and hence it will be necessary to refer the case back to the court below to find from evidence to be taken what the actual value of this machinery was at the time of decedent’s death.

3. The charge of the administrators for services in settling the estate was $ 1,100. This, under ordinary circumstances, would not be excessive. But the administration of this estate and the distribution to and among the heirs was not attended with ordinary trouble and responsibility. The entire debit side of the account amounted to $21,782.73, which was increased by the finding of the auditor $110. Of this amount $14,075, consisting of stock and mortgage, were turned over to the heirs in kind, without conversion into money. The administrators assumed no risk and no responsibility in relation thereto. “ Commissions are given as a compensation for labor and responsibility and, where neither the one has been performed nor the other incurred, there is nothing to be compensated : “ McCauseland’s Appeal, 38 Pa. 466. “ But after all on all authority, it is a question not of percentage but of compensation. When the court has fairly responded to the interrogatory, how much has the trustee earned, it has discharged its whole duty in the premises: Montgomery’s Appeal, 86 Pa. 230. This was said as to an estate amounting in the aggregate to over $42,000, upon which the executors claimed a commission of five per cent, amounting to more than $2,000. The auditor allowed $500, which allowance was overruled by the orphans’ court awarding the amount originally claimed; this decree was reversed by the Supreme Court, which awarded the amount allowed by the auditor, upon the ground that the bulk of the estate passed to the residuary legatee at its appraised value in stocks and bonds. In the present case it cost, deducting the amount of the stock and mortgage mentioned, including attorneys’ fees, $1,250, to collect and distribute about $7,700 without any evidence of any unusual labor, care, risk or responsibility. Under the circumstances, we regard $650 as a full and ample compensation for the administrators, which sum is allowed. There was some evidence that one of the administrar tors agreed to settle the estate for less than the compensation allowed by law and, although an agreement to settle an estate for a specific sum may be enforced (Koch’s Estate, 148 Pa. 159), in this case the testimony is very indefinite and such an agreement would not bind the coadministrator. We have, therefore, not considered it as entitled to weight in influencing our conclusion. The decree of the orphans’ court, dismissing the exceptions to the auditor’s report, as set forth in the third and seventh assignments of error, which are sustained, is, therefore, reversed and it is ordered that the administrators be surcharged the sum of $450, the excess of commissions over the amount herein allowed, together with the one half of the value of the traction engine, thresher and clover huller at the time of the death of the decedent: the record to be remitted to the court below to carry out the terms of this decree; the costs of this appeal to be paid by the appellees.