
    MONTGOMERY COUNTY.
    January Term, 1881,
    No. 173.
    April 18th, 1882.
    Boud’s Appeal.
    1. Where the personal property of a decedent is inadequate, the administrator is not entitled, as against a mortgagee of the decedent, to credit for a reasonable amount expended by him out of the proceeds of real estate sold for the payment of debts for the funeral expenses of the decedent.
    2. Nor for medical attendance of the decedent.
    3. Nor for State, county, and road taxes not a lien.
    4. An administrator who mingles the proceeds of real estate sold by him for the payment of debts with his own funds, and uses it for his own benefit, is not entitled to commissions on the amount so used.
    Before Sharswood, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Mercur, J., abseut.
    Appeal of William H. Boud from the decree of the Orphans’ Court of Montgomery County, confirming the report of an auditor appointed to distribute the balance in the hands of the appellant, as administrator of the estate of James Boud, deceased.
    The administrator filed his account March 3d, 1880, and Mary L. Shannon, a mortgage creditor, excepted, inter alia, to the following items of credit:
    1. State and county tax, $23.74; road taxes for 1878 and 1879, $33.78; D. Y. Mowday (coffin), $59.93; Dr. David Sehraek’s bill (medical attendance), $46; Dr. John Sehrack’s bill (medical attendance), $5; digging grave and funeral expenses, $35.
    2. The accountant is not entitled to $150 commission.
    Louis M. Childs was appointed auditor to distribute, and he reported the material facts as follows:
    James Boud, the decedent, died September 8th, 1878, and his son, William II. Boud, was appointed administrator. The inventory of the personal property of the decedent amounted to $91.60, but upon its sale there was a deficiency of $36.21. The accountant charged himself with $90 rent collected. On the 29th of November, 1879, the administrator, in pursuance of an order of the Court, sold the real estate, consisting of a hotel, in Shannonville, in Montgomery County, at public sale, to William L. Rittenhouse, for $3100. On the 15th of December, 1879, Rittenhouse, for the sum of $3110, sold the premises to Boud, the accountant, and on the same day deeds conveying the property from Boud, administrator, to Rittenhouse, and from Rittenhouse back to Boud, were executed and delivered. The purchase-money was not paid over until May 22d, 1880, and the money was then brought into court for distribution. Both Rittenhouse and Boud testified that there was no understanding between them that Rittenhouse should buj in the interest of Boud, and the auditor found that the sale was bona ficle. The credits claimed for payments and excepted to were for amounts actually paid, were x-easonable, and were what they purported to be.
    Mary L. Shannon appeared before the auditor and claimed, upon a mortgage given to her by the decedent, for $2600, dated March 31st, 1868, which, with the interest, amounted, at the time of the confirmation of the sale, to $3019.90.
    Upon these facts the auditor found as follows:
    
      “ The taxes were not liens, nor were they shown to have been placed by levy or otherwise in a position requiring payment. The funeral expenses and physician’s bills are not proper credits in the account of the administration of the real estate, and must await the satisfaction of i'ecord liens before being entitled to payment out of the proceeds thereof: Wade’s Appeal, 5 Casey, 328; Bryan’s Estate, 4 Phila., 228; Deichman’s Appeal, 2 Wharton, 396 and 397. Your auditor has therefore stricken out all these credits, decreeing payment in the distribution of the balance of personal property of the doctors’ bills and funeral expenses, so far as said balance will reach.”
    He allowed 5 per cent, commissions, upon the balance of the personal property and rent collected of $145.39, amounting to $7.27, and further found:
    “ The evidence shows that during nearly six months, to wit, from December 15th, A. D. 1879, to May 22d, 1880, the accountant mingled $2800 of the money arising from the sale of the real estate with his own funds and used it for his own benefit. The rule of law is that commissions are to be given as compensation for a careful and scrupulous administration of the trust funds. These must be collected, kept and used for the purposes of the trust, and for those purposes alone. Any other use of them is a breach of the trust and precludes the right to receive commissions: Stehman’s Appeal, 5 Pa. St. R., 413 ; Norris’s Appeal, 71 Pa. St. R., 126 ; Witman and Geisinger’s Appeal, 28 Pa. St. R., 376 ; Swartswalter’s Account, 4 Watts, 77.
    “ The auditor has therefore disallowed the claim for commissions upon the $2800 used by accountant for his own private benefit, and has allowed him commissions on the $300 of the purchase-money, which he seems to have collected and preserved, at the rate of 3 per cent., making $9 commissions on the proceeds of the real estate.
    
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    “ Mr. Chain further asks that accountant be surcharged with interest on the whole of the purchase-money of the real estate from the date of sale to the closing of the audit. This claim your auditor has only partially sustained. The principle that where a trustee uses trust funds for his own benefit, he may, at the option of his cestui que trust, be charged either with the profit or interest, is well settled: Norris’s Appeal, 71 Pa. St. R., 125 ; Robinett’s Appeal, 36 Pa. St. R., 174; Hall’s Appeal, 4 Wr., 409; Miller’s Appeal, 6 C., 478; Gilbert’s Appeal, 78 Pa. St. R., 266; Hess Est., 68 Pa. St. R., 454.
    “ That the accountant used a portion of the funds of the estate for his own purposes is clear from the evidence. On December 15th, 1879, he sold the trust estate to Rittenhouse and purchased the property from him, and $2800 of the purchase-money was paid by neither him nor Rittenhouse until May 22d, A. D. 1880. In ocher words he received, in satisfaction of the debt due to him as administrator from Rittenhouse, the debt due from him individually to Rittenhouse, and of this debt $2800 remained unpaid until May 22d, 1880. Your auditor has therefore surcharged him with interest on $2800 from December 15th, 1879, to May 22d, 1880, amounting to $73.26.”
    He awarded the whole balance to Mary L. Shannon.
    To these findings the administrator filed exceptions, which the Court below, Ross, P. J., dismissed, and it confirmed the report of the auditor, and decreed distribution in conformity thereto.
    The administrator then appealed, assigning that the Court erred:
    1. In surcharging the administrator with the following items of credit in his account for bills paid by him, and which are admitted to be what they purport to be, viz., State and county tax, $23.74; road taxes for 1878 and 1879, $33.78; D. Y. Mowday, coffin, etc., $59.93; Dr. David Schrack, medical attendance during last illness, $46 ; Dr. John Schrack, same services, $5 ; digging grave and funeral expenses, $35.
    2. In reducing the commissions of the accountant from $150 to $16.26.
    3. In surcharging the administrator with interest upon $2800 from December 15th, 1879, to May 22d, 1880, to wit, the sum of $73.26.
    4. In dismissing the exceptions.
    
      William F. Solly and George N. Corson, for the appellant.
    The medical attendance and funeral expenses were matters of necessity and humanity, and being reasonable should have been allowed: Heffs Appeal, 9 Harris, 246.
    The administrator is entitled to his commissions for selling the real estate of the decedent as against lien creditors just as an assignee is. lie must give bond: Pennock’s Estate, 2 Phila., 228.
    
      B. E. Chain, for the appellee.
    The first question involves the right of an administrator, who sells real estate under an order of the Court to pay debts, to pay out of the proceeds thereof funeral expenses, doctors’ bills, and taxes, at the expense of a mortgage creditor. To permit such payment is, in effect, compelling the mortgagee to pay them. If compelled to pay them, it would seem to be reasonable that such creditor should he at least consulted as to the amount to be so expended, and as to the person to make the expenditures. If funeral expenses are to he so paid, the creditor should decide whether the decedent is to be deposited in the ground with such burial as would compare with the plain notions of people in ordinary walks of life.
    If he is to pay the doctors’ bills, it would seem but right that he should have the privilege of selecting the practitioner: Wade’s Appeal, 5 Casey, 328.
    In selling the real estate to himself, this accountant neither incurred nor assumed a single responsibility for which by law commissions are allowable.
    May 1st, 1882.
   — Per Cttriam:

We affirm this decree upon the report, and opinion of the auditor in the Court below.

Decree affirmed and appeal dismissed at the costs of the appellant.  