
    RANKIN’S APPEAL.
    An executor who discharged his duties faithfully and made no interest from the trust funds, was not surcharged with interest on estate money deposited -to his own account.
    Appeal from Orphans’ Court of Berks County. No. 373, January Term, 1884.
    This case came before the Court upon exceptions to the Auditors’ Report.
    The facts as gathered from the Auditors’ Report and the arguments of counsel are as follows; viz : George Peiffer, the decedent, died in Marion township in 1877, testate: His will, dated August 4, 1873, was duly probated November 26, 1877. and letters testamentary granted to Henry H. Miller. Tho testator died seised of considerable property, roa1, and personal. líe directed his executor to sell the real estate, and then, after bequeathing several specific legacies, he gave all the rest and residue of and the remainder of his property “to his nine nephews and nieces, viz: Augustus Burkholder, George Burkholder, Lucy Arnold and Caroline Gruber, children of Daniel Burkholder, deceased; Franklin Reed, Almon Reed, Thomas Reed and Mary Fisher, children of Daniel B. Reed and Henrietta Kline, wife of John Kline and daughter of John J. Reed, deceased; to my cousins Catharine Peiffer, Eliza Rankin and Mary Shannon, of Philadelphia, and to William Miller and his sister, Mary Buck, of Lebanon; and to my friend, Richard Lechner and his sister, Elizabeth Gockley, share and share alike.” The executor sold the real estate and converted the personality into money in the fall of 1878. He filed his present account on August 22, 1879. in which he charged himself with $18,582.52 — $10,971.52 as realized from the sale of real estate, and the balance from personalty, including $1,800 advanced to certain residuary legatee. He claimed credit (including $1,000 for commissions) amounting to $8,799.87, leaving a balance due the estate of $9,852.65. No exceptions wrere filed to this account. The Court on the 26th of March, 1881, appointed J. Lawrence Getz, Esq., to report distribution, whose report was confirmed nisi January 12, 1882. Before making distribution the Auditor allowed executor credits for several undisputed claims paid since the filing of the account. * * * The third class of exceptions by the residuary legatees complains because the Auditor did not charge the executor with interest upon the monies in his hands. The Auditor finds that the executor discharged his duties faithfully and was not guilty of delaying the settlement of the estate, and that he had made no profits out of the trust funds. The question here arises whether the findings of the Auditor are justified from the evidence submitted to him. What was the purport of that evidence ?
    The accountant was the chief witness called by the except* ants. He testified that such of the funds as were deposited he had in his own name with his own account in bank, at the Farmers’ National Bank in Reading. He also testified lie made no interest out of these funds and that he realized no profits from them in any way. John H. Maltzberger, a clerk of said bank, was called, who testified from the books of the bank and submitted a copy of accountant’s individual accounts with said bank, from which it clearly appears that during the time of his administration his account does not show a deposit equal to the amount of trust funds in his hands. Under this evidence it is contended on the part of the exceptants that the Auditor should have found that he perjured himself, realized interest and profits out of the funds or that he had used them in his own business. This the Auditor did not so see. He found the facts as the accountant had stated them.
    There was no other testimony on this point before the Auditor, nor w as there any evidence before him tending to throw discredit on the witnesses’ veracity. It was. contended before me that because the executor had deposited some of these funds in bank with his own he had mingled them and was, therefore, ipso facto liable to the payment of interest. I cannot so hold the law, but even were the law such he could not be held since the only proof on this point is that he realized no interest or profit from any funds belonging to the estate. Had the exceptant, with evidence outside of himself, proved that he had mingled the funds with his own, the legal inference would have been that he had made profits for himself by it. Such can, however, not be inferred from this testimony, which is that he made no interest by depositing it with his own. This finding of the Auditor is, therefore, confirmed and the exceptions on this point dismissed.
    Exceptants also urge that accountant should have been charged with part of the auditing expenses. A careful examination of the testimony and proceedings generally before the Auditor do not impress me with the propriety of sustaining the exception. Hence the came is dismissed.
    Two of the exceptions in the interest of the residuary legatees object to the accountants’ compensation as contained in ¡the account, and to the additional sum of $500 allowed him by the Auditor for services rendered since the filing of the account. Nearly §11,000, on the debit side of the account, were realized from the sale of real estate, and the balance, a little less than $7,700, are from personalty. The ordinary commission on funds out of real estate, for services, for the sale- and the disbursement of moneys, should not exceed three percent. In this case should not have been over $330 on the real estate and 5 per cent., or $385, on the personalty. $715-would have been the ordinary compensation. He charged $1,000 in his account. Upon an examination of the proceedings before the Auditor, and the evidence there submitted to-prove the value of services rendered by the executor in the-settlement of this estate, do not, in my opinion, establish the-fact that more than ordinary services were required. It is true that several actions were necessary to adjudicate doubtful claims, but there should have been no necessity for certain of the creditors to obtain their moneys due them on bonds, to institute suit for the recovery of the same. There was no reason for contesting such claims, nor can the executor claim any merit for not paying the same until after the residuary legatees were mulcted in heavy bills of costs and accountant’s attorneys fees, as w'ell as additional interest, unless collateral estates are considered prey like common carrion to be devoured by vampires and vultures.
    If it were not that this account became absolute without exceptions thereto, and the appointment by the Court of an auditor thereon to report distribution, I might consider the reduction of his compensation charged in the account; but considering the Auditor’s appointment and my power to review his report, I cannot support the exception seeking to reduce accountant’s compensation of $1,000. In consideration that the accountant credited himself with more compensation than he was legally entitled to, and inasmuch as he, through his-negligence, did not pay certain of the creditors after he had all the estate reduced into money, until suits were instituted and judgment obtai ned, together with large bills of expenses-for attorneys fees and costs, as well as additional interests, I sustain this exception and thereby disallow the said additional commission of $500.
    
      Eliza Rankin and others then appealed, assigning the action of the Court in not cha rging the accountant with interest and a portion of the costs of audit.
    
      A. G. and H. D. Green, Esqs., for appellants,
    argued that the Executor had mingled the trust funds with his own, and was ■liable for interest; Robinett’s Appeal, 36 Pa., 174; Clauser’s Appeal, 84 Pa., 52; Bile’s Appeal, 24 Pa., 335; Callaghan vs. Hail, 1 S. and R., 241; Fox vs. AVilcocks, 1 Binney, 199. By the Executor’s delay, a judgment .for a legacy was obtained a gainst the estate, thus compelling the estate to pay costs and -interest.
    
      R. L. Jones, Esq., contra.
    
   The Supreme Court affirmed the decree of the Orphans’ ■Court on March 17th, 1884, in the. following opinion :

Per Curiam.

Under the facts found by the Auditor and confirmed by the 'Court, the appellants have no just cause for complaint with this decree. AVe are not furnished with all the evidence, and ‘■cannot therefore verify all the findings of facts. It is found ■as a fact that the Executor discharged his duties faithfully and was not guilty of delaying the settlement of the estate and that he made no profit out of the trust funds; These facts being ■conceded, we discover no sufficient reason for disturbing the ■decree.

Decree- affirmed and appeal dismissed at the .cost of the appellants.  