Estate of Old , 176 Pa. 150 ( 1896 )

Per Curiam,

Newton Lightner was the executor of the will of Harriet Old, and testamentary trustee for James M. Hopkins during his life, and after his death for his widow and children and their heirs. As such trustee he loaned the fund so held in trust to James M. Hopkins upon the security of a large body of land owned by him subject to several liens already existing. This loan was made with the approval and under the order of the orphans’ court, and with the consent and approval of such of the remainder-men as were then sui juris. Hopkins and his family lived on the land, and it was regarded as ample security for all the liens against it. For nineteen years, until the death of Lightner, Hopkins was unable to pay him, or to pay the annual interest accruing on the previous liens; and at the end of this time the interest had accumulated to such an extent that the previous liens amounted with interest to more than could be obtained for the land or collected from Hopkins in any other manner. The descendants of Hopkins are now seeking to surcharge the estate of the trustee with the amount of the loan made by him to their ancestor, the life tenant. The ground on which this is urged is that it was negligence in the trustee to deal so generously with their ancestor, and not to have compelled him to do what it seems very clear he was unable to do, viz: to pay the interest annually on the hens that were prior to his own.

We have examined the findings of the learned master upon this subject, which have been concurred in by the orphans’ court. No clear error in them has been pointed out to us. They seem on the other hand to be fairly justified by the evidence. Accepting the facts so presented, we concur in the legal conclusion that has been drawn from them.

The decree of the orphans’ court is affirmed, the costs to be paid by the appellant.