
    Estate of John Hertzler, deceased. Appeal of John Hertzler, Mary A. Hertzler and Elizabeth E. Murray.
    
      Trustees—Accounting—Interest.
    
    Where testamentary trustees have charged themselves with interest in excess of five per cent, and the trust has extended over a long period of time, and settlements have been made on the basis of the interest charged in the accounts, and large payments have been made to the beneficiaries, the court will not charge the trustees with interest at six per cent because of their having commingled the trust funds with their own.
    Argued May 17, 1899.
    Appeal, No. 821, Jan. T., 1898, by John Hertzler et al., from decree of O. C. Lancaster Co., dismissing exceptions to auditor’s report.
    Before Green, Mc-Collum, Mitchell, Dean and Fell, JJ.
    Affirmed.
    Exceptions to auditors’ report.
    The facts appear by the report of Hertzler’s Estate, Moore’s Appeal, ante, p. 531.
    The auditors reported in part as follows :
    In investigating the question as to the claim of compound interest charged by the accountants against themselves, and the counterclaim that, as the accountants have used the moneys of the estate, six per cent interest should be charged against them instead of five per cent, the auditors have, after considerable difficulty, ascertained that, while the alleged compounding of the interest makes the charge in excess of five per cent, it does not in the aggregate exceed six per cent. Conceding that the rule of law is that interest shall be charged against trustees commingling funds of their estate with their own, yet the auditors have concluded that, as a long period of time has elapsed, and settlements have been made on the basis of the interest charged in the accounts, and large payments have been paid to the exceptants, that it is equitable to all parties not to disturb the charge. The liability of an executor for interest in this state has been the subject of legislative enactment. By the 17th section of the Act of March 29, 1832, Purd. Dig. p. 300, pi. 165, it is provided that “ the amount of interest to be paid in all cases by executors, administrators, and guardians shall be determined by the orphans’ court under all the circumstances of the case, but it shall not in any case exceed the legal rate of interest for the time being: ” Norris’s Appeal, 71 Pa. 106.
    Exceptions were filed to the auditors’ report by the children of John Hertzler, deceased, as follows:
    1. The auditors erred in not surcharging the accountants with the difference between five per cent, the rate of interest with which the accountants charge themselves on moneys in their hands, and six per cent, the legal rate of interest. [1]
    2. Referring to the item of interest, the auditors erred in finding as follows: “ It is equitable to all parties not to disturb the charge.” [2]
    3. The auditors erred in surcharging the accountants with only two thirds of error in dividends of Columbia National Bank stock. They should have surcharged the accountants with the full amount of the error. [3]
    4. The auditors erred in surcharging the accountants with only two thirds of the value of the allotment of the increase of stock of Colombia National Bank. They should have surcharged the accountants with the full value of the allotment. [4]
    5. The auditors erred in surcharging the accountants with only two thirds of the dividends declared on 100 shares of stock of the First National Bank of Lancaster between May 4, 1864, and August 18,1880. They should have surcharged the accountants with the full amount of the dividends on said stock between the said periods. [5]
    6. The auditors erred in surcharging the accountants with only two thirds of the value of the allotment of fifty shares of increase of the stock of the First National Bank of Lancaster. They should have surcharged the accountants with the full value of said allotment. [6]
    7. The auditors erred in not surcharging the accountants with the full premium of the allottedstock of the First National Bank of Lancaster. [7]
    
      Errors assigned were (1-7) in dismissing exceptions to auditors’ report, quoting the same.
    
      J. Hay Brown, of Brown Hensel, for appellant.
    
      
      John Cr. Johnson,■ with him 3. M. and E. E. North, for appellee.
    July 19, 1899 :
   Opinion by

Mb. Justice Dean,

This is an appeal by the legatees from the same decree from which the executors of their father’s estate appealed, and in which an opinion has been this day handed down, ante, p. 531. We fail to discover such merit in any of the assignments of error as calls for special notice. All of them are to findings and conclusions of the auditors, which findings and conclusions are sufficiently vindicated in the report filed.

The appeal is therefore dismissed, costs to be paid out of the fund.  