Sterrett's Appeal , 2 Pen. & W. 419 ( 1831 )

The opinion of the court on these exceptions was delivered by

Hus TON, J.

This case is now before us on the report of the auditors, to whom it was referred to state the account, so as to exhibit what was clone by the executors jointly; what was received and paid by each, and generally every matter.appearing to them.

Exceptions are filed by both parties, to different items, and in one instance each side objects to tbe same item.

On the part of the heirs, the first objection is to the amount of the vendue list. In a prior account in pa'rt, filed by the executors, they had charged themselves with the account of sales at vendue, $2584 56. The present auditors, on examining this account, discovered several errors in the addition, and made the real amount $2473 81. It was right to correct this error and charge the latter sum. The heirs had objected to that account, and it had never passed the Orphans’ Court. Errors in favor of the executors are here corrected, and why not those against them. If the vendue list had been lost, it might be right to charge the executors with what they had stated to be its amount;" but this addition is of the items of the same paper from which the former was incorrectly taken.

The auditors allowed Robert Bierreti $500, and John Sterrett $200, as compensation for time, trouble, expense and counsel fees. The personal estate exceeded $9500, and a large real estate was to be sold, and the money distributed among the heirs. It was sold to the heirs, or rather a part to two heirs, and another part to two other heirs, and in some way all, or a great part of the purchase money settled, and is not before us. The heirs say the allowance is too large; they insist on the delay of the executors, the difficulty in obtaining a settlement, the loss by John Sterrett, &c. The executors object, that they are charged with interest on all sums upon the debet side of the account, which came to them ten years ago, and no interest is allowed on their compensation. The evidence before the auditors, on which they acted, is not before us. It sometimes does great injustice to correct matters founded on facts and evidence, by supposition and theory. Where an executor receives money each year, for a number of years, and pays it away nearly as he receives it, perhaps it is always correct to allow the per cent-age when that particular transaction was completed. But when money has been collected and never paid away, but used by the executors, and some of it squandered, it may be right to allow no per centage at all.

Where an estate is so situated, that legal advice is proper to direct the course of the executors, or where they must bring suits to recover part of the estate, or defend suits brought against them, counsel must be employed; and where they are employed to obtain what is honestly supposed to be the rights of- the estate, the estate ought to pay the reasonable counsel fees. But where executors neglect to settle and pay, and are sued by creditors, or cited by heirs, and employ counsel to defend them in their iniquity, no counsel fees should come from the estate. The man who is doing wrong must himself pay the expense of that wrong. When heirs are asking from executors what is unreasonable, they may defend against this, and the heirs ought to bear the expense of their unjust claim. In this case we think the allowance large enough; but as we are not informed of all the facts and circumstances, we don’t know why such a difference was made in the allowance; we suppose nothing was allowed for time or expense in this proceeding; we therefore make no alteration.

After charging each of the executors with the proportion of the vendue money which could be traced to their hands, there remained ®3S1 90; as to this sum, there is no evidence which of the executors collected it, and the auditors think it ought to be charged to John, the deceased executor. We see no reason for this. Robert is allowed more than twice as much as John for time and trouble; why say he did less than John? On all that appears before us, we think Robert ought at least be charged with one-half of this sum; and we direct $180 95 to be added to the sum with which he is charged, and the same amount to be deducted from the amount charged to John.

There are some small items excepted to, about which the evidence is uncertain; we leave the report, as to these, unaltered.

As to the charge of money received from Nathaniel Sterrett’s estate. This is to some extent admitted, hut said to have been received since this account passed the Orphans’ Court; and as it seems there are also other matters of similar kind, we only say we do not pass on this; it is left for future settlement,

As to-the expenses of this account before auditors. The heirs ought not to pay this. The reasons are obvious. Robert Sterrett filed an account making the heirs his debtors; he owes them by this account nearly $2000. Robert and John, the executors, must pay this.

Robert Sterrett has filed two other exceptions. Because the auditors did not allow him the sum of $804; which he alleges he paid in May, 1815, to his co-executor John Sterrett.' There is nothing to support this exception. The facts go far to negative it.' Robert received above one thousand dollars, in April, and within a month paid to creditors of the estate as much; if he gave to John at that time, it was ■ not money of the estate, but his own, and if lost, he must lose it; he cannot throw it on the heirs.

The next exception, as to the $761 92 paid P. McClure, is on no better footing. The proof is, that John paid that money. John borrowed from her the sum which he had just paid, and an additional sum, and gave his bond, with Robert as his surety. If Robert has been compelled to pay that bond, it was as surviving obligor of John, and not as executor of James Sterrett’s estate.

The report, as corrected in the two items above mentioned, is confirmed. ‘ ,