In re Estate of Buck , 185 Pa. 57 ( 1898 )

Opinion by

Mb. Justice Fell,

The finding of the learned auditing judge that the unexpired term of the lease of the saloon and the good will of the business with the opportunity of procuring a transfer of the license were worth from $2,000 to $2,500, and that the accountant, without making an effort to procure a purchaser, appropriated them to himself, fully sustains the surcharge made. In Grimm’s Appeal,-181 Pa. 233, relied on by the appellant, the executor sold the stock and fixtures to the widow of the decedent and she secured a new lease, and on her petition the license was transferred to her. There was no evidence of collusion, nor any that a better price could have been obtained. The executor was surcharged with the amount for which the widow, after conducting the business for some months, sold the stock then on hand, the fixtures, good will and lease to a purchaser who with her consent had procured a transfer of the license to himself. It did not appear that the lease had any time'to run or that the executor had not obtained the full value of what he sold. It was said in the opinion that, if the executor by the exercise of diligence could have procured a higher price for the stock and fixtures from one willing to take the chance of securing a renewal of the lease and a transfer of the license, there would have been reason for surcharging him.

A license to sell liquor is a personal privilege. It is not assignable by the holder, and at his death it does not go to his representatives. It is not an asset of his estate : Blumenthal’s Petition, 125 Pa. 412. An executor or administrator could not under the law carry on the business for the benefit of the estate if he so desired: Grimm’s Appeal, supra. But the fact that a license had been granted to sell liquor at a particular place may increase the value of that which the executor or administrator may have to sell. On the hearing of an application for a retail license the court considers the public necessity of the place as well as the personal fitness of the applicant, and the granting of a license is the finding that the place in its location and appointments is a suitable place for the sale of liquor. The opportunity to secure a transfer of the license and a renewal at the end of the year may materially affect the value of the fixtures, good will and unexpired term of the lease. When this is shown to be the case, and the accountant has failed in the performance of a plain duty, there is ground for surcharge.

The order of the Orphans’ Court is affirmed at the cost of the appellant.