
    Geiger’s Appeal. [Geiger’s Estate.]
    A testator by his will devised and bequeathed to his wife, “ her heirs and assigns forever,” all his property. By a subsequent clause, he directed that, if his executors should see proper, they should sell his property to pay debts. He then further directed: “Also I do direct after the death of my wife, the property both real and personal shall and must he sold, and all my just debts paid, and the remainder of the money to he equally shared amongst my children.” Seld that the widow took a life estate, and that it was her duty to keep down i/nterest on incumbrances; and, that the executor was liable to be surcharged for such interest paid by him and charged in the account, and also for the corpus -of the estate consumed by the widow, although the money was received by the widow when she was a co-executor, the account being filed after her death.
    An executor claimed a booh account against his testator’s estate. He was the only witness to prove it; the auditor found that the hook was not a booh of original entries, and that the claim ran hack to 1847. Seld that the claim should he disallowed.
    An executor who appeared to have used the moneys of the estate as his own, kept no separate hank account, did not produce vouchers for many items of credit, and filed such an account as to cause a long, tedious and expensive audit, was held not entitled to commissions, or to counsel fees before the auditor on exceptions.
    Feb. 7, 1889.
    Appeal, No. 168, July T. 1888, from a decree of O. O. Montgomery Co., dismissing exceptions by Albert Geiger, surviving executor of Samuel Geiger, deceased, to the report of an auditor on exceptions to the executor’s account, at Oct. T. 1887.
    The following facts were found by the auditor, N. H. Larzelere, Esq.:
    Samuel Geiger died on May 13, 1854, leaving a will in which he disposed of his estate as follows:
    
      “ I give, devise and bequeath unto my' beloved wife, Sarah Geiger, her heirs and assigns forever, all my property, real, personal and mixed, of what nature and kind soever and wheresoever the same shall be at the time of my death.
    “Also, I direct that if the executors see proper to sell any of the property, either real or personal, to pay debts, they may do so. Also, I do direct, after the death of my wife, the property, both real and personal, shall and must be sold, and all my just debts paid, and the remainder of the money to be equally shared amongst my children.”
    Sarah Geiger, the widow, and Albert Geiger, testator’s son, were appointed executors. The executors took out letters, but no inventory was filed. In 1887, upon a citation issued from the orphans’ court, Albert Geiger filed an account as surviving executor, showing a balance of $223.94 in his hands. Wilhelmina Zuber, one of the heirs, filed exceptions to the account, embracing items subsequently discussed.
    Testator, at his death, possessed some personal property, most of which was immediately sold. Out of the proceeds, Sarah Geiger paid the funeral expenses. After Sarah’s death in 1887, Albert sold the balance, amounting to $38.53 and charged himself therewith in his account.
    Testator also owned a farm of fifty-nine acres and other land. In 1859, Sarah Geiger, claiming the land as her own, sold a portion of it, and, after paying a judgment out of the proceeds, appropriated the balance, amounting to $660, to her own use. The receipt in the deed was signed by both Sarah and Albert.
    In 1868, the executors and all the heirs, excepting Wilhelmina Zuber, joined in a deed, conveying the fifty-nine acres to Michael E. Geiger, who, on the same day, reconveyed it to Albert Geiger. The consideration paid by Albert for the farm was $2,000. With a portion of this amount, he paid a judgment on the farm held by . one Eegely, amounting, with interest, to $552.27. He paid $944 to Sarah or to third parties by her direction.
    At the audit, Albert claimed a credit for $179.69, being a debt alleged to have been due from the testator to himself. In support of this claim, he produced an old book, on the back page of which there was an account against his father running from 1847 to 1853. On this claim, the auditor found as follows:
    “Albert is the only witness to this account and it is very apparent that it is not a book of original entries. The auditor concludes that the entries were all made at one time, and from some other book or memoranda. Another convincing proof of this is, that, while this account begins in 1847, on the outside of the book is written as follows: ‘ The property of A. Geiger, January 4th, 1851.’ There is no proof when this was written, but, taken with the fact, very apparent on the face of the page containing the charges, leads the auditor to find as a fact that this is not a book of original entries. . . . The claim cannot be allowed. First, because it is not established by competent or sufficient proof, and, second, because it has long since been barred by the statute of limitations. It falls within the principles decided in Y orles’s Ap., 110 Pa. 69, and never became seated upon the trust.”
    At the audit, Wilhelmina Zuber claimed to surcharge the accountant with a profit made by sale of the land bought by accountant in 1868. On this subject, the auditor found as follows:
    “It is also further found that, June 15, 1868, when Albert bought the farm it was badly out of repair. The widow had had the use of it since 1854, and had put no repairs upon it. It had been rented out and the soil got thin. The barn was tumbling down and the fences were poor. Albert sold this farm, without the small tract, to Louis Leavengood in 1876 for $3500, expressed in the deed, but Albert said he was obliged to rebate $500. Between 1868 and 1876, however, Albert had greatly improved the farm, had practically built a new barn, repaired the fences and improved the soil. The auditor, therefore, finds as a fact that the farm was easily worth the difference in the two prices between 1868 and 1876. The fact that all the heirs who were sui juris joined in making this sale at $2,000, moves me to find that that figure was all that it was fairly worth when conveyed to Albert.”
    On the subject of accountant’s claims for commissions and counsel fees, the auditor found as follows:
    “The accountant’s claim for $120 commissions cannot be allowed. Commissions of trustees are not a question of percentages, but of compensation for labor and responsibility. Montgomery’s Appeal, 86 Pa. 230. Where neither the one has been performed nor the other incurred, there is nothing to be compensated. McCauseland’s Appeal, 38 Pa. 470; Robinson’s Estate, 5 Phila. 99. In this estate, the accountant has earned no compensation. Although in no respect guilty of any fraud, he has never performed in an ordinary manner the duties devolved by law upon him. If he was insolvent now, the heirs of Samuel Geiger would lose every cent of this money. He is compelled by citation to file his account, and files such a one as has caused a long, tedious and expensive audit to ascertain that which it was his legal duty to have kept clear and simple. To reward an executor in such a case would be a premium upon looseness and carelessness in the performance and discharge of sacred duties and against the policy of the law. A trustee at least is bound to use ordinary care and prudence in the charge he undertakes. This subject is clearly illustrated in the following cases : Steger’s Estate, 3 W. N. C. 368; Sharped Estate, 2 Phila. 280; Sauter’s Estate, 6 W. N. C. 95.
    “Neither can the claim for $100 counsel fees for services to accountant be allowed. These were services on his own account in defense of his conduct throughout the administration of this estate. He must therefore pay for them out of his individual pocket. This disposes of all the numerous questions raised in this estate which it is material to decide.”
    
      Tbe auditor found that, under the will of the testator, Sarah Geiger took a life estate only and not a fee. He therefore surcharged accountant with the amounts paid to Sarah Geiger and retained by her for her own use. He also refused to allow accountant credit for arrears of interest paid on the Fegely judgment, on the ground that it was the duty of the life tenant to keep down arrears.
    The auditor restated the account, finding a balance due by the accountant to the estate of $2,203.39.
    The accountant filed exceptions to the auditor’s report, alleging that the auditor erred, 1, in deciding that, by the will, Sarah Geiger took only a life estate [1] ; 3, in deciding that the latter part was contradictory to the former part of the will [2] ; 20, in deciding that the latter clause in the will is not repugnant to the first, it being only a direction for settlement of the estate, declaring what must be done in case she was dead before the general and primary intent was consummated [3] ; 21, in resorting to technical rules of construction before applying the general rules for the construction of wills [4] ; 4, in not allowing Albert Geiger credit for the amount of interest he paid on the Fegely judgment [5] ; 7, in not allowing the book account due Albert by his father, the sum of $179.69 [6] ; 9, in not allowing amounts paid to widow in 1867, 1870, and in 1872, in all $290.72 [7] ; 12, in not allowing compensation to Albert Geiger for long, tedious and irksome services, bona fide performed for 34 years to the estate, where now there is a serious contest over a will which never had been judicially construed, and in an estate which was his debtor a long time [8]; 14, in surcharging the accountant with $660, not one cent of which he ever had in hand [9] ; 16, in not saying Mary Ann Engle, Michael E. Geiger and Catharine Engel were estopped as distributees in any event from anything out of the main farm [10]; 19, in not holding that the finding that Albert Geiger was negligent is unjust, as he did everything he could to preserve the estate [11] ; 15, in raising a large fund for distribution, and distributing to heirs who were not entitled to distribution out of an estate really debtor to the accountant for more than he ever got [13].
    The court dismissed the exceptions and confirmed the report.
    
      The assignments of error specified, 1-11 and 13, the action of the court in dismissing accountant’s exceptions, quoting them; and, 12, in deciding that he was not entitled to counsel fees before the auditor.
    
      A. S. Sassaman, for appellant.
    The cardinal rule of construction is that the intent of the testator is to be gathered from the four corners of the will, taken as a whole. Lynn v. Downes, 1 Yeates, 518; Roberjot v. Mazurie, 14 S. & R. 45; Horwitz v. Norris, 60 Pa. 261; Provenchere’s Ap., 67 Pa. 463; Seibert v. Wise, 70 Pa. 147; Middleswarth v. Blackmore, 74 Pa. 414.
    The general intent of a will is the primary intent, and any partieular expressions that would establish a particular or secondary intent, that would stand in the way of such general intent of the testator, must be construed in subordination to it or be disregarded. Musselman’s Est., 5 Watts, 9; Doebler’s Ap., 64 Pa. 9; Schott’s Est., 78 Pa. 40; Hitchcock v. Hitchcock, 35 Pa. 393; Sheetz’s Ap., 82 Pa. 213.
    Techinal rules of construction are not to be invoked to defeat the plain intent of the testator. It is only when refinements begin that doubts appear. Still v. Spear, 45 Pa. 168; Newbold v. Boone, 52 Pa. 167.
    The first taker under a will is presumed to be the favorite of the testator. McFarland’s Ap., 17 W. N. C., 443; Wilson v. McKeehan, 53 Pa. 79.
    In the construction of wills, the law in doubtful cases leans in favor of an absolute rather than a defeasible estate, and that as early as can be. Amelia Smith’s Ap., 23 Pa. 9; Manderson v. Lukens, 23 Pa. 31; Passmore’s Ap., 23 Pa. 381; Rewalt v. Ulrich, 23 Pa. 388; Letchworth’s Ap., 30 Pa. 175; Burd v. Burd, 40 Pa. 182; Womrath v. McCormick, 51 Pa. 504. That construction should be avoided which converts a fee simple into a life estate. Fulton v. Fulton, 2 Grant, 28.
    There are no words of limitation in the will. Under the devising clause, she took absolutely. The last sentence in the will was a direction as to what should or must be done after the widow’s death. This all had been done, according to former directions in the will, during the widow’s life, and hence there was nothing to be done by surviving executor but to file an account of his part of the work.- In regard to the last sentence of the will, there was no trust created or established in the surviving executor, as : Words of desire, expectation, direction and recommendation, create no trust: Pennock’s Est., 20 Pa. 268; Burt v. Herron, 66 Pa. 400; Johnson v. Johnson, 81* Pa. 257.
    The accountant was trustee and creditor at the same time. He could not sue himself. His claim was present to him, and we think he is one of the excepted under Torks’s Appeal. Outside of the statute of limitations he was competent to prove his own book account. Laird v. Campbell, 100 Pa. 165; Odell v. Culbert, 9 W. & S. 66.
    The accountant was entitled to commissions. Scott’s Intestate Law, 813,4; Pusey v. Clemson, 9 S. & R. 209; Miller’s Est., 1 Ash, 335; Snyder’s Ap., 54 Pa. 67; Price’s Est., 81 Pa. 263.
    An executor who files a separate account is not liable to the legatees of the testator for moneys received by his co-executor, unless he has been guilty of culpable negligence in respect thereto. Muhlenberg’s Est., 35 Pa. 294; Lightcap’s Ap., 95 Pa. 455; Toung’s Ap., 99 Pa. 74.
    Executors are entitled to credit for counsel fees. Wilson’s Ap., 41 Pa. 94; Sterrett’s Ap., 2 P. & W. 419; Scott’s Est., 9 W. & S. 98; Leow’s Est., 6 W. N. C. 333; Rankin’s Est., 9 W. N. C. 407; Martin’s Est., 39 Leg. Int. 33.
    
      
      John W. Bickel and F. G. Hobson, for appellees.
    Where the parts of a will are so contradictory that all cannot stand, the clauses posterior in position must prevail. 2 Jarman on Wills, page 44; 1 Redfield on Wills, page 443; Haldeman v. Haldeman, 40 Pa. 29.
    The testator did not intend to give his wife a fee or he would not have added the subsequent clauses of conversion and of distribution after her death.
    It is the duty of the tenant for life to keep down encumbrances. .Brightly’s Digest, 856, 3219; Jewell’s Est., 11 Phila. 73; Schurr’s Est., 37 Leg. Int. 194; • Pennock v. Imbrie, 3 Phila. 140.
    The auditor found that the alleged book account was not a book of original entries. The appellant was only competent to prove his book of original entries. Failing to prove this, his claim as a creditor of the estate, in the life time of the testator, was properly rejected.
    The auditor properly found that the appellant was not entitled to compensation. Compensation is allowed to the faithful not the unfaithful trustee. Steger’s Est., 3 W. N. C. 368.
    The court properly rejected the claim of the appellant for counsel fees before the auditor to pay for defending his own wrongful and negligent acts.
    The auditor very properly surcharged the accountant with the $660 realized from the sale of the land. The sale was made by the joint executors, the deed executed only by the widow but the receipt shows that the money went into the hands of the joint executors. The appellant was not a competent witness, in the face of his written receipt, to show that he did not receive the purchase money. Heydrick’s Ap., 109 Pa. 610.
    Feb. 18, 1889.
   Per Curiam,

The first assignment raises the question whether, under the will of Samuel Geiger, his widow, Sarah Geiger, took a fee or only a life estate. This is the important question in the case, though one entirely free from difficulty. The first clause in the will is as absolute a devise to the widow as could well be made, and the provision in the second clause, authorizing the executors to sell the real estate for the payment of debts does not in any degree curtail the previous devise. It merely authorizes the executors to do what the law authorizes them to do. Then follows the provision: “Also, I do direct, after the death of my wife, the property, both real and personal, shall and must be sold, and all my just debts paid, and the remainder of my money to be equally shared amongst my children.” That this cuts the fee down to an estate for life is too plain for argument. Being the later clause in the will, it must prevail. With this point established, we find no error in the ruling of the orphans’ court upon the account of Albert Geiger, the surviving executor of Samuel Geiger. It was, perhaps, his misfortune that he yielded too readily to the demands of the widow, who was also his mother and co-executor. She appears to have been an imperious woman and thought she owned the estate in fee. But those who assume trusts must conform to the law.

The executor charged himself with the sum of $2,000, the purchase money of certain real estate sold to Michael E. Geiger, but which was in reality a sale to the accountant. This property, after several years, was re-sold by the accountant at a considerable advance. The court below did not surcharge him with this difference, in view of the fact that the increase of price was due to the improvements which he had put upon the property, and that in the matter of the sale he had acted in good faith.

The book account of $179.69, which the accountant claimed against his father’s estate, was properly disallowed for very satisfactory reasons given by the auditor. He was the only witness to prove it; his book was manifestly not a book of original entries, and the claim itself was ancient, running back to 1847.

The duty of the life-tenant to keep down interest on encumbrances is so well settled that authorities upon this point need not be cited. Hence the credits claimed for this purpose were properly rejected.

As to the refusal of the court to allow commissions, it is sufficient to say that compensation is given only to the faithful steward. This accountant may not have intended any wrong; his derelictions may have been the result of ignorance, but we cannot excuse him on that account, and place him on the same plane with those who perform their duties intelligently. He appears to have used the moneys of the estate as his own; kept no separate bank account; did not produce vouchers for many of his items of credit, and, as the learned auditor finds, “files such an account as has caused a long, tedious and expensive audit to ascertain that which it was his legal duty to have kept clear and simple.” Whether such consequences are produced by knavery or stupidity, the results are the same to the parties whose money is thus wasted.

We find no error in this record.

The decree is affirmed and the appeal dismissed at the costs of the appellant. «  