
    Tyson’s Estate.
    
      Orphans’ court — Administrators—Sales of personal property— Jewelry — Private sale — Duties of administrator — Surcharge.
    The general rule for the administration of the estate requires the administrator to convert the assets in order that distribution may be made, unless the parties desire that the division of the assets be made in specie.
    Where the distribution cannot be made in kind, it is the duty of the administrator to sell, and not risk the depreciation in the value of the assets of the estate. Such a sale should normally be a public sale after notice to the parties interested, and adequate advertisement, according to the circumstances, in order that the highest price may be realized.
    If an administrator sells at public sale, the burden is upon any one who seeks to surcharge him with a loss; but if he sells at private sale, which he has a legal right to do, the burden is upon him to show that the prices obtained were the market values of the articles sold.
    Where an administrator, after a long delay, sells jewelry at private sale for less than the appraised value and no sufficient testimony is produced to explain the reason for such sale, or that it realized market prices, he will be surcharged with the difference between the appraised value of the jewelry and the amount it actually brought at private sale.
    Argued October 25, 1922.
    Appeal, No. 193, Oct. T., 1922, by Edward T. Tyson, Jr., Administrator, from final decree of O. O. Phila. Co., Oct. T., 1921, No. 521, dismissing exceptions to adjudication in the estate of Emma G-. Tyson, deceased.
    November 28, 1922:
    Before Pouter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
    Affirmed.
    Exceptions to adjudication. Before Lamorelle, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court dismissed the exceptions to the adjudication and surcharged the administrator in the amount of $1,489. Defendant appealed.
    
      Error assigned was the decree of the court.
    
      Thomas E. Crain, and with him Howard B. Wilson, for appellant.
    
      Alexander Fried, and with him Clinton A. Sowers, for appellee.
   Opinion by

Keller, J.,

This appeal is from the action of the Orphans’ Court of Philadelphia County, surcharging the administrator of the estate of Mrs. Emma G. Tyson with the difference between the appraised value of decedent’s jewelry in March, 1920, when the inventory was taken, and the amount it actually brought at private sale in April, 1921.

The decedent was a widow. Her heirs were a son, the appellant, and a daughter, Mrs. Dewees. She left no debts to speak of and her personal estate consisted nearly altogether of money in bank and jewelry.

Shortly after the inventory was filed appellant had a conference with his sister relative to a division of the jewelry in kind. It at once developed that both wanted a pair of diamond earrings, appraised at $1,800, at their inventory value, and neither wanted the other jewelry. Both were as positive as language could make it. In such a deadlock further discussion was useless. Nothing was done by the administrator looking t’o a sale of the jewelry until April, 1921, though it was testified that, at least as early as December, 1920, Mrs. Dewees had requested him to sell it. In the meantime the value of diamonds is alleged to have depreciated, owing to the importation of jewels from Europe and the demoralized condition of exchange, and when he finally disposed of the jewelry, he did so at private sale to the lapidary and jeweler who had appraised them for inventory purposes at a loss of $1,489. The auditing jndge was unable to find that Mrs. Dewees had agreed to this lumping private sale. Without her consent snch a sale was certainly unusual and irregular.

We have carefully considered all the evidence in the case and are constrained to agree with the conclusion of the learned auditing judge, as follows: “The general rule for the administration of an estate requires the administrator to convert the assets in order that distribution may be made, unless the parties desire that distribution be made in specie. When therefore it appeared, as it did appear in this case, soon after the inventory was filed, that distribution could not be so made, it became the duty of the administrator to sell, and not take, the chance of a depreciation in value of the assets. This sale should normally be a public sale, after notice to the parties interested, and adequate advertisement, according to the circumstances, in order that the highest prices might be realized. If an administrator sells at public sale, the burden is upon any one who seeks to surcharge him with a loss; but in case he sells at private sale, which he has the legal right to do, the burden is on him to show that the prices obtained were the market values of the articles sold. There is no sufficient testimony to show this; indeed, no testimony at all except that of the very person who bought the jewelry at the depreciated valuation......Mr. Tyson therefore should have exposed the jewelry to public sale, after reasonable notice to Mrs. Dewees, who might then have bid at the sale, and, in a case like this, where no danger of debts appeared, the successful bid of either party might have been credited on account1 of distribution. Instead, however, of adopting this rather obvious course, the administrator retained the assets, on a falling market, and when he finally concluded to sell, he sold the goods in a lump at a private, instead of a public sale. My conclusion is that he should be held accountable for the appraised valuation, and the credit for depreciation is stricken out.”

The appellant’s position has not been strengthened by the fact that though the decedent died in February, 1920, and the settlement of her estate was not complicated, he did not file his account until January, 1922, and then only after he had been cited to do so.

The assignments of error are overruled and the decree of the orphans’ court is affirmed at the costs of the appellant.  