Priscilla Smethurst's Estate

This is a transcription of one report of an appeal court's ruling regarding Priscilla Vanderford's suit regarding the administration of her mother's estate by her brother, William A. Smethurst.

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CENTRAL REPORTER
VOLUME XL

ALL CASES DETERMINED IN THE COURTS OF LAST RESORT, AS FOLLOWS:
NEW YORK, COURT OF APPEALS.
NEW JERSEY, SUPREME COURT, COURT OF ERRORS AND APPEALS, COURT OF CHANCERY AND PREROGATIVE COURT.
PENNSYLVANIA, SUPREME COURT.
DELAWARE, SUPERIOR COURT, COURT OF ERRORS AND APPEALS AND COURT OF CHANCERY.
MARYLAND, COURT OF APPEALS.
DISTRICT OF COLUMBIA, SUPREME COURT.
WITH NOTES, REFERENCE AND CITATION TABLES, ETC.

EDMUND H. SMITH, EDITOR.
THE LAWYERS' CO-OPERATIVE PUBLISHING COMPANY.
ROCHESTER, N. Y., 1888, pages 373-5

Priscilla M. VANDERFORD'S APPEAL.

Priscilla SMETHURST'S ESTATE.

1. If tbe executors of an estate are not called upon to file an account until after the lapse of thirty years from the decedent's death, when one of the executors who had entirely managed the estate had died, credits will be allowed the other executor for money paid by the deceased executor twenty or thirty years prior to the filing of the account, even though they are not proved by proper vouchers, in a case where all the parties interested have been for a long time sui juris, and all but one, a nonresident, have consented to the account, and the deceased executor was a man of unquestioned integrity who had advanced money to preserve the estate from insolvency, and the surviving executor was himself one of the distributees of the estate with no inducement to be dishonest or neglectful.

2. In the present case credits were allowed for payments made for repairs, etc., to property, for interest on money loaned the estate by the executor, for bills for conveyancing done by the executor, and for taxes. The executor was also allowed to include in his principal account money borrowed for the estate, and charge commissions thereon as part of the assets of the estate.

(Argued Jan. 20, Decided Feb. 6, 1888.)

JANUARY Term, 1888, No. 43, E. D., before Gordon, Ch. J., Paxson, Sterrett, Green, Clark and Williams, JJ.

Appeal of Priscilla M. Vanderford, a legatee under the will of Priscilla Smethurst, deceased, from a decree of the Orphans' Court of Philadelphia County, dismissing appellant's exceptions to the adjudication of the first account of William A. Smethurst, surviving executor and trustee under the will of Priscilla Smethurst.

Affirmed.

The facts of the case were as follows:

Priscilla Smethurst died January 23, 1853, leaving a will, appointing her brother-in-law, Richard Smethurst, and her son, William A. Smethurst, as executors and trustees. Letters testamentary were granted in January, 1853, to Richard, and subsequently, on June 5, 1855, to William A. Smethurst. Richard Smethurst afterwards died, and the present accountant continued the management of the estate as surviving executor and trustee. No account was ever filed during (Richard Smethurst's lifetime, nor after his death, until March 2, 1883, after a citation had been issued at the instance of the appellant. The account as filed by William A. Smethurst, the surviving executor and trustee, comprised an executor's account and a trustee's account of principal and income, extending over a period of thirty years.

Mrs. Smethurst left five children, all but one of whom were minors at the time of her death. Three of them, as directed bv the will, lived in England, for many years—the youngest child not leaving there until 1871. The appellant—the youngest child but one—married Dr. Vanderford, and removed to Germany many years ago, where she has ever since resided.

The account was so voluminous, and the attempts to vouch it were attended by so much labor and loss of time, that the auditing judge suggested that the accountant and counsel for appellant should privately vouch the account as far as possible, and submit to the court all items disputed. Among the items thus disputed and finally referred to the auditing judge were the following:

1. March 16. 1853. By cash paid Jas. R. Smith, amount left in Robert's hands to pay municipal liens, which was never applied for, $180. [1]

2. May 7, 1853. By cash paid advancement to B. Byrne, to aid him in improving lot on Seybert Street, etc., $250. This was land of Robert Smethurst's sold Byrne on ground rent. The ground rents were afterwards cut out and this loan lost by sheriff's sale. [8]

3. December 30, 1856, and September 29, 1857. Two items of interest paid to Richard Smethurst, one of the executors, for moneys advanced to the estate by him. [3]

4. December 30, 1856, to June 30, 1866. Six credits for conveyancing services, aggregating $247.05, three paid to Richard Smethurst, one of the executors. Only one credit stated the property conveyed. [4]

5. September 5, 1857, to October 25, 1863. Ten credits for repairs, amounting to $126.23. [6]

6. July 19, 1858. By cash paid note at Philadelphia Bank to J. Allison on account of Robert Smethurst, deceased, $130. [6]

7. January 24, 1860, and July 12, 1862. Two bills for taxes for $56.84 and $26.08. [7]

8. November 5, 1862, to December 28, 1869. Five credits aggregating $746.92, payments of debts due by Robert Smethurst. [8]

As to items 1 and 6, checks were produced for corresponding amounts. As to the other items there were no checks, receipts or other vouchers. There was some parol evidence that all conveyancing bills had been paid; further that the estate was threatened with insolvency, and Richard Smethurst advanced money to assist it; that there was considerable conveyancing done for the estate.

At the audit the appellant claimed two surcharges of commissions, one of $90 and the other at $172.50, being sums claimed as commissions upon money borrowed for the estate and included in the principal account as part of the assets of the estate. [9-10]

The auditing judge allowed the above credits and commissions, saying, Inter alia, in his adjudication:

Richard Smethurst had been the agent and attorney in fact of testatrix, who was executrix of her husband's will, in the management of his estate; and, as her executor, he continued the management of her estate until his death, when he was succeeded therein by his cocxecutor, the present accountant. Mr. Smethurst, during his lifetime, was one of the most expert and accomplished conveyancers and real estate agents in this city, carried on for many years an extensive business, had the charge and settlement of numerous estates, and was noted for his prudence, economy, care and integrity. Testatrix reposed full confidence in her brother- in-law, and appointed him sole executor until her son William attained his majority. By her will she devised and bequeathed all the residue of her estate unto her executors, in trust for the purposes therein mentioned. These were: to apply $1,000 equally towards the education of her children, and the balance to appropriate towards the payment of the principal of all mortgages, ground rents, etc.; and upon the arrival of her children at full age, then, so far as her sons were concerned, to pay to them their proportion of the $1,000 until they arrived at twenty-five years; and, upon their arrival at such age, then to pay over to them their full share of her estate. But as to the shares of the daughters, to hold the same for their sole and separate use, etc., they to have a power of appointment by will. The subsequent provisions of the will it is unnecessary to quote, except that testatrix directed the payment of an annuity of $260 per annum to her sister Margaret during her natural life. After the tedious and laborious examination of the voluminous account filed, many of the items of which could not be successfully and satisfactorily vouched or explained by accountant, owing to his having no personal knowledge of transactions consummated by his deceased coexecutor, the objections of Mr. Brewster to the allowance of the credits claimed by accountant should not, in fairness to the accountant, be sustained, with the exception of the credits claimed for keeping the accounts of the estate. * * *

"It appeared from the evidence that all the other parties interested made no objection to the account as filed. Two of the sons of testatrix, who appeared, stated that they were satisfied with the management of the estate, and the one represented by Mr. Brewster did not attend in person."

To this adjudication twenty-one exceptions were filed including exceptions to the above items. The exceptions to these items were dismissed by the court in an opinion by Hanna, P. J., as follows:

This decedent acquired her estate from her husband, Robert Smethurst, and was executrix of his will. She never settled any account as such, but paid many of her husband's debts; and after her death her executors paid other debts, and claimed credit therefor in their account. She, of course, took her husband's estate, subject to the lien of his debts, and there is no impropriety in allowing these as credits. Their account extended through a period of many years, and the parties interested have long been sui juris. Some appeared and expressed their satisfaction with the management of the estate and accuracy of the account. But one of the parties, a nonresident, ever indicated any dissatisfaction, and on every occasion when it was required, full information was afforded by accountant to her and those acting in her behalf. Again; every presumption is in favor of the correctness of the account and fair dealing of the accountant. He is himself interested in the preservation of the estate, and by loans of his money and credit has saved it from sacrifice and ruin. There has been no inducement for the accountant to be dishonest or neglectful.

After a careful consideration of the exceptions, we see no occasion to disturb the adjudication except in the following particulars: commissions on uncollected assets should be disallowed and debts of the estate of decedent's husband should not be taken from income, but from principal.

The assignments of error specified: 1-8, the allowance of the above credits; and 9, 10, the allowance of the above commission.

Mr. Francis E. Brewster, for appellant:

These credits are not supported by vouchers. Advancements to improve Robert Smethurst's ground are not proper credits. There was no definite proof of specific sums advanced by the executor to the estate, so the interest credits are not sufficiently supported.

The executor had no right to charge for conveyancing services rendered by himself.

Addison, Cont. § 849; Perry, Trusts, § 904; Wood's App. 88 Pa. 346; McCloskey's Est. 2W. N. C. 114.

The accountant should have filed his accounts as required by law. Being guilty of gross negligence and laches in that respect he cannot now claim that he need not prove miscredits, because there is a presumption of payment from their antiquity.

Romigs App. 84 Pa. 236; Mylin's Est. 7 Watts, 64; Williamson's Est. 6 W. N. C. 452, 471; White's Est. 36 Legal Int. 451; Creidland's Est. 2 Phila. 379.

There was no proof that Mrs. Smethurst received any property from her husband's estates. Therefore credits for moneys paid on account of said property should be disallowed. The commission should have been disallowed.

Bedell's App. 85 Pa. 398; Graham's Est. 1 Ches. Co. Rep. 301; Beck's Est. 5 W. N. C. 274; Hanies' Est. 1 Pears. 441; Posey's Est. 1 Ches. Co. Rep. 351.

Mr. Wm. Henry Lex, for appellee:

Receipts and vouchers are not absolutely necessary. Lapse of time raises presumption that accounts are correct.

Romig's App. 84 Pa. 237; Ingraham v. Cox, and Wilkinson's Est. 1 Pars. Eq. Cas. 70, 176; Pennypicker's App. 14 Pa. 430; Peter's App. 106 Pa. 342; Reed v. Reed, 46 Pa. 239; Strimpfler v. Roberts, 18 Pa. 283; Hess v. Frankenfeld, 15 W. N. C. 405; Tilghman v. Fisher, 9 Watts, 441; Bentley's App. 99 Pa. 500.

An executor is entitled to compensation for services not naturally belonging to his office.

Perkins' App. 16 W. N. C. 125; Lowrie's App. 1 Grant, 873.

Per Curiam: [noting an action taken by the court as a whole, especially an anonymous opinion of the whole court, as contrasted with an opinion delivered in the name of a particular judge.]

We are satisfied that the orphans' court has fairly disposed of this case according to its equities, and therefore affirm the decree on the opinion of the learned president of the said court.

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