
    Engle’s Account
    
      Caldwell, Fox & Stoner, and E. M. Hershey, for accountants.
    
      Metzger & Wickersham and Isaac B. Herr, for exceptants.
    December 26, 1934.
   Fox, J.,

Eight exceptions were filed to the auditor’s report. At the argument but one was pressed, to wit, the one relating to the accountants’ commissions.

In consideration of the testimony and the report of the auditor, we are of opinion that this exception, with all the others, should be overruled.

The executors of the estate, who are the same persons as the instant trustees, did not charge for their services in excess of one third of the amount to which they were entitled under the law. It would therefore be unfair to deprive them as trustees of commissions on the corpus of the trust estate as provided by the Fiduciaries Act of June 7, 1917, P. L. 447, sec. 45, and inasmuch as the trustees had signified their intention of resigning and thus terminating their trust, we are of opinion that they are entitled to a reasonable commission for their 14 years of service.

We are also of opinion that they should be surcharged with the investment in a $1,000 bond of Harrisburg Railways Company, an unlawful trust investment which they made. In all other respects, the auditor’s report should be confirmed.

The resignations of the trustees have not yet been presented to the court, and until their trust is terminated, by resignation or otherwise, the commissions cannot be allowed them.

And now, December 26, 1934, upon due consideration the exceptions to the report of the auditor are hereby overruled, and Aaron F. Engle and Milton M. Engle, trustees of the trust fund for the benefit of Mary M. Kettering et al., are surcharged with the sum of $920. The bond thus taken out becomes the property of the said Aaron F. Engle and Milton M. Engle, and they will be allowed commission as said trustees in the sum of 2 percent on the corpus of the estate as it now exists, provided their resignations are presented to the court within 15 days from the date hereof.

The costs of the audit are to be paid out of the trust account without delay. In all other respects, the auditor’s report is hereby confirmed.  