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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THE ATLANTIC REPORTER,
VOLUME 12,
CONTAINING ALL THE DECISIONS OF THE
Supreme Courts of Maine, New Hampshire, Vermont, Rhode Island, Connecticut, and Pennsylvania; Court of Errors and Appeals, Court of Chancery, and Supreme and Prerogative Courts of New Jersey; Court of Error and Appeals and Court of Chancery of Delaware; and Court of Appeals of Maryland.

FEBRUARY 22-APRIL 18, 1888.
ST. PAUL: WEST PUBLISHING CO. 1888.
page 491-3

APPEAL OF VANDERFORD.
(Supreme Court of Pennsylvania. February 6, 1888.)

1. DESCENT AND DISTRIBUTION — EXCESSIVE PAYMENTS — DEDUCTION FROM FUTURE SHARES.

Upon an adjudication of an executor's account, where it appears that some of the cestuis que trust or devisees have received more than their respective portion of the income, the payments should be equalized, and the excess be repaid out of future shares.

2. EXECUTORS AND ADMINISTRATORS — PAYMENT OF DEBTS — INCOME.

The debts of the estate of a decedent's husband should be paid out of the principal of his estate, and not out of the income.

3. SAME - COMMISSIONS.

An executor has no right to charge commissions on uncollected assets.

Appeal from orphans' court, Philadelphia county; William B. Hanna, President Judge.

This is an appeal of Mrs. Priscilla M. Vanderford, a daughter of Priscilla Smethurst, deceased, and a legatee and devisee under her will, from the decree of the orphans' court, Philadelphia, dismissing her exceptions to the adjudication of President Judge Hanna, sur the first account of William A. Smethurst, surviving executor and trustee, and continuing said adjudication. 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 life-time, 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 30 years. Mrs. Smethurst left five children; all but one of whom were minors at the time of her death. Three of them, as directed by the will, lived with their aunt, Mrs. Robinson, in England, for many years,—the youngest child not leaving his aunt in England until January or February, 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 accountant stated at the audit that Robert Smethurst left all his estate to his wife, Priscilla, (the decedent,) but his will was not produced at the audit, nor offered in evidence, nor was it shown what property he left, nor what Mrs. Smethurst received. Several hearings were had, but the account was so voluminous, and the attempts to vouch it were attended by so much labor and loss of time to the auditing judge, that he finally suggested that the accountant and counsel for appellant should privately vouch the account as far as possible, and submit to the court all items which could not be vouched or satisfactorily explained. The result of these efforts was a list of objections to the account, which counsel for Mrs. Vanderford prepared and submitted to the auditing judge. This list contained only the items unvouched and unexplained, after the fullest opportunity had been afforded the accountant to produce his receipts and vouchers. The auditing judge finally heard testimony upon the credits objected to, and filed an adjudication, wherein he held that "the objections to the allowance of credits claimed by the accountant should not, in fairness to the accountant, be sustained, with the exception of the credits claimed for keeping the accounts of the estate," although many of the items "could not be successfully and satisfactorily vouched or explained by accountant, owing to his having no personal knowledge of the transactions consummated by his deceased co-executor." Exceptions were filed by Mrs. Vanderford, nearly all of which were dismissed by the court, (Hanna, P. J.,) in the following opinion:

"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 non-resident, 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. And, through inadvertence, the payments of income to the several cestuis que trust were not equalized, as should be done. The 10th, 13th, 14th, 16th, 17th, 20th, and 21st exceptions are sustained; those remaining dismissed; and a final decree will be prepared by counsel in accordance herewith."

From the decree rendered in accordance with the above opinion, Mrs. Vanderford appeals.

Francis E. Brewster, for appellant. William Henry Lux, for appellee.

PER CURIAM. 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.