Summary
EROM THE DECREE OE THE ORPHANS’ COURT OE NORTHUM-BERLAND COUNTY.
Nos. 242, 371 January Term 1889, Sup. Ct.; court below, No. 48 February Term 1887, O. C.
On April 11, 1887, the petition of Ann O. Rodrigue was presented, setting forth, in substance :
That Hugh Bellas, late of the borough of Sunbury, died having made his last will duly admitted to probate, in a codicil to which, dated November 3, 1860, be devised to trustees a certain portion of bis property in trust for Ann C. Rodrigue, providing: “ And tbe said trustees or either of them are required to apply all tbe proceeds and profits thereof to her personal use and support and benefit from time to time as she may need and require, when deemed necessary for herself and children, hut not to he applied or used otherwise.*
That, the trustees named in the codicil declining to act, Dr. Joseph Priestley was appointed by tbe court on August 17, 1865, as substituted trustee; and, the executors named in tlio will also declining to act, letters of administration c. b. a. were issued to Mr. S. P. Wolverton, who “ attended to all the duties of the appointment in your petitioner’s interest in said estate, and no labor or responsibility was required on tbe part of said trustee, except tbe mere form of transmitting to her checks which were drawn monthly by tbe said administrator and sent to him.”
Tliat’ on December 11, 1882, the said Dr. Priestley had presented a petition to the Orphans’ Court upon which he was discharged from the trust, “ which he had not acted in for ten years,” and she had lately been informed that on September 6, 1882, Dr. Priestley bad filed an account, in which bo had charged himself with having received various sums of money, taken from the distribution accounts attached to the annual accounts of S. P. Wolverton, administrator e. t. a. of Hugli Bellas, deceased, amounting to $76,777.95, arid bad taken credit with having paid the same out on the same date to her, and charged thereon a commission of $1,560.40.
“Your petitioner avers that not one dollar went into the hands of the said Joseph Priestley, as her trustee; that it was transferred bodily from the accounts of S. P. Wolverton, administrator with the will annexed, and that all the items embraced in said account were paid directly to her by S. P. Wolverton, administrator, under an agreement in writing, signed by herself and all her children, providing for the direct payment to her, instead of through the trustee. She further avers that she is a non-resident of the state, and is now residing at Woodbridge, in the state of New Jersey; that she had no notice of the filing of said account in writing, and only recently learned of the existence of said account, and the fact that a rule had been obtained upon her to pay the said sum of $1,560.40. That the said account is incorrect, in the fact that it states upon its face that $76,777.95 was received by Joseph Priestley, from S. P. Wolverton, administrator of Hugh Bellas, deceased, when in truth none of said money went into his hands, and it is incorrect in stating that he paid out these amounts at various dates therein stated to Ann C. Rodrigue; that the money was all paid directly by S. P. Wolverton, administrator, to her, and did not go through the hands of the said alleged trustee.”
Further averring that it was incorrect to charge “ her for services which were never performed, a commission of $1,560.40,” the petitioner brought this her bill or petition for review, and prayed to be relieved thereon, and that a citation should is'sue upon Hannah H. Priestley, administratrix of Dr. Joseph Priestley, then deceased, and all parties interested, commanding them, etc.
The answer of Hannah H. Priestley, administratrix of Dr. Priestley, filed to the foregoing petition, set out, inter alia, the duties performed by the trustee, of which the petitioner had knowledge; that his account was prepared in the office and with the knowledge of the administrator c. t. a. of the estate, and from the receipts and vouchers of the trustee which he had permitted to remain in the hands of said administrator; that the filing of said account with the register was advertised in due form of law, and, no exceptions being filed thereto, was confirmed absolutely on December 6,1882; that the respondent had no knowledge of the existence of an agreement in writing, signed by the petitioner and. her children, providing for the direct payment to the petitioner, instead of through the trustee, as alleged.
“Your respondent, further averring that the said account is correct in every particular and most carefully and conscientiously stated by the accountant; that there are no specific errors alleged in said petition, npr any errors apparent on the face of the record; that the only error alleged, other than that of filing an account at all, is the striking of a balance which shows that there was due the accountant at the time of the filing thereof the sum of $1,560.40, which sum represents and includes commissions for acting as trustee for ten years and upwards, the payment of counsel fees, the register for passing the account, and the responsibility for the proper appropriation of $76,777.95; that the said account was filed with the actual and legal knowledge of said petitioner; that no exceptions were taken thereto by her, or by any one in her behalf, and that upwards of four years have elapsed since the absolute confirmation thereof, prays the said court that she may be dismissed,” etc.
The foregoing answer having been filed, on June 29, 1887, the court appointed Mr. J. Mevin Mill, auditor, to hear the testimony and to report the facts in the ease, and his opinion thereon.
The auditor found as facts, in substance, that from the time of his appointment, in August, 1865, up to July, 1872, Dr. Priestley acted uninterruptedly as trustee under the will of Mr. Bellas and the appointment of the court, receiving from the administrator c. t. a. moneys due Mrs. Rodrigue and paying the same over to her; that in 1872, there were disagreements between Mrs. Rodrigue and Dr. Priestley relative to his charges for compensation and partly the result of his refusal to pay her the proceeds of the sale of some real estate, to which he was advised she was not entitled; that, upon these disagreements, Dr. Priestley filed what was denominated a final acc ount and made application to the court to be discharged, but his petition was held under advisement until a satisfactory trustee could be agreed upon and would consent to take his place; that from this time on the administrator of the estate paid the moneys due Mrs. Rodrigue directly to her, taking receipts, however, to Dr. Priestley as trustee; that “for some reason unexplained, probably because Mrs. Rodrigue regarded it as unnecessary and a useless expense,” no trustee to relieve Dr. Priestley was appointed or even applied for; that in the account stated in 1882, the items were taken from the annual accounts filed by the administrator; that “on the debtor side, he charged the accountant with ‘cash received, from S. P. Wolverton, administrator of Hugh Bellas ’ numerous items aggregating §76,777.95. On the credit side, he gave credit for a balance due from the former account, filed April, 1872, §28.16, and numerous items of ‘ cash paid Mrs. Ann G. Rodrigue ’ aggregating, with one item of ‘ commissions due accountant,’ of §1,522.24, and another of §10.00 paid the register for passing account, the sum of §78,388.85 showing a balance due the accountant of §1,560.40 j” that by a paper dated April 9, 1878, signed by Mrs. Rodrigue ^ and all her children, acknowledged and recorded, Mr. Wolverton, the administrator c. t. a., was authorized to pay directly and monthly to Mrs. Rodrigue the one third of the iucome, her share under the will, without the delay and expense of the payment of the same through a trustee; that it was not shown that Mrs.-Rodrigue had actual knowledge of the filing of the account of 1882, but she had constructive notice thereof by the advertisement of it by the register; that Dr. Priestley died on March 10, 1883, and on March 23,1883, letters of administration upon his estate were granted to Hannah H. Priestley, his widow.
The auditor, upon the facts found by him, but briefly abstracted above, reported the following opinion:
The application for a review of the account of Dr. Joseph Priestley, trustee of Ann C. Rodrigue, is made under the provisions of the first section of the act of October 13,1840, P. L. (1841) 1.
This act does not specifically mention accounts of testamentary trustees, but was evidently intended to include all accounts over which the Orphans’ Court has jurisdiction. The act is remedial and should be liberally construed, and I believe it is broad enough to cover the present case.
The petition in this case was presented within five years after final decree confirming the trustee’s account; it was presented by a person interested, and sets out that the account is erroneous in that none of the sums of money with which the accountant stands charged were in fact received by Mm; that none of the sums claimed to have been paid the petitioner were in fact paid her by the accountant, and that the accountant did not perform any services which would entitle Mm to the commissions claimed, viz.: $1,522.24; that in fact he did not act as trustee of the petitioner during the time covered by the account, but had declined to do so. This petition and specification of errors, is verified by affidavit.
If these allegations of error, going into the whole of the account, are sustained by the facts in the case, is not the petitioner within the act and entitled to a rehearing; and is not the court bound to grant a rehearing of the account and to give such relief as justice and equity may require ? It seems to me this is all there is in the case for the present. The auditor may think that the charge of $1,522.24 is not excessive, and if the accountant actually handled the money he charged himself with, it would be a very modest charge; and it may be a moderate charge for responsibility merely, considered by itself; but this question can arise only on a review.
Of one thing there can be no doubt. Dr. Priestley continued to be the legal trustee under the will of Hugh Bellas of Mrs. Rodrigue, by appointment of a court of competent jurisdiction, and he was not discharged as such until 1882. During the time from 1872, when he filed what he designated as his final account and applied to the court to be discharged, up to 1882, when he was discharged on the second petition after filing the account in controversy, he had a right to demand and receive the one third of the income or interest of the estate of Hugh Bellas due Mrs. Rodrigue, and he was accountable for the same. But he did not do so. He became incensed at the allegations of Mrs. Rodrigue that no trustee was necessary, and that his commissions were too high and a useless diminution of her income. Acting upon what he deemed sufficient provocation, he declined to receive further remittances on account of Mrs. Rodrigue from the administrator of the estate. True, he did not press his petition for discharge and allowed it to be lost sight of; but after returning the administrator’s check in 1872, with the declaration that he would have nothing further to do with Mrs. Rodrigue’s affairs, he cannot be said to have acted in any sense as her trustee. Certain things he did relative to the business, but these were only for his own protection and not necessarily for the protection of the trust estate or the benefit of the cestui que trust. In fact, he did what he determined to do in the first place, and never changed his mind. He refused to have anything to do with Mrs. Rodrigue or her affairs.
All this has nothing to do with his responsibility as trustee, but it seems to me to be important in considering the right to charge himself with funds which by his own declination never came into his hands; to claim credit with payments which he never made, and to claim compensation as though he had managed the affairs of the estate. The account is in that form. It is fictitious and erroneous on its face. It is true that the receipts taken by Mr. Wolverton, the administrator, were taken as though the money had been paid by Dr. Priestley, through the administrator. But this was as fictitious as the account itself, and it is in evidence that Mrs. Rodrigue objected to dealing with the administrator in that way, and declined to sign many of the receipts. It does not appear that Dr. Priestley either authorized or directed Mr. Wolverton to pay Mrs. Rodrigue. He simply refused to receive and handle Mrs. Rodrigue’s money. Mr. Wolverton requested Dr. Priestley to withhold his application for discharge until another trustee could be appointed, and took receipts in Dr. Priestley’s name simply because he thought the will required the intervention of a trustee. After Dr. Priestley’s refusal to act, the trusteeship itself became a fiction except as to the responsibility of the trustee, and this the trustee had a right and it was undoubtedly Ms duty to guard, by demanding the money due the cestui que trust and to receive and pay it out.
The auditor is of opinion that the account is erroneous ; that the allegations of the petitioner have been sustained by uncontradicted evidence and that a review should be granted as a matter of right.
Counsel for the respondent contends that the petitioner is not entitled to a bill of review in law because she has not averred errors of law appearing on the face of the decree, or new matter that has arisen since the decree of confirmation, or that new evidence has been discovered, and cites Hartman’s App., 36 Pa. 70, Milligan’s App., 82 Pa. 395, and Scott’s App., 112 Pa. 427. I cannot say the petitioner has not averred errors of law on the face of the account. It is necessary to aver errors on the face of the record or in the account merely, and I am of opinion that it is sufficient to aver that the accountant in fact never received the moneys with which he charged himself, and upon which he bases claims for commissions, the balance being against the cestui que trust.
It is also contended that the allegation of want of notice of the filing of the account has no evidence to support it, that it is denied by the answer and contradicted by the evidence before the auditor ; and that, had there been no actual notice, the advertising of the account by the register is as effective and binding as actual notice; citing App v. Dreisbach, 2 R. 287. Tt has been found as a fact that actual notice has not been shown or denied, but that there was constructive notice, which in law is as binding, for all practical purposes. The act of 1840, however, does not by its terms require it to be shown that there was no notice, to entitle an interested party to a review. In the case of Simpson’s App., 18 W. N. 175, which arose in this court, constructive and actual notice were shown, and the petitioner lived within a few yards of the register’s office, yet the court allowed a review and the Supreme Court affirmed the decree. Where no intervening rights are affected, and where no equities have arisen to the contrary, I believe the matter of notice to be immaterial.
Counsel also contends that Dr. Priestley could not abandon the trust, and that if he did abandon it, as alleged, it did not relieve him from the responsibility of the proper appropriation of the funds by the administrator; citing Perry on Trusts, §§ 266-268 ; Webster v. Vande venter, 6 Gray 428; 11 Paige, 819. This is undoubtedly the law. If Mr. Wolverton had squandered the money, the trustee would have been liable for it; and, moreover, he could have made no claim for commissions, and could not have charged himself with the funds as a basis of a charge against the cestui que trust. He may have estopped himself from charging anything, and I understand that the petitioner claims that he did so.
It is further contended that it was arranged between the administrator and the trustee that from 1872 the money should be paid direct to Mrs. Rodrigue by the administrator and receipts taken in the name and for the trustee by him. I have not been able to find this. There is no evidence before- me that goes to show that there was such an agreement. On the other hand, the trustee appears as insisting upon liis discharge and merely delaying the matter for a term when it seems to have been overlooked.
Again; it is contended that the trustee considered himself as acting after April, 1872, and down to his final discharge, and responsible for the acts of Mr. Wolverton who was merely his agent. If Mr. Wolverton acted as -the agent of Dr. Priestley after 1872,1 would take a different view of the case, but I do not think the evidence warrants that conclusion. Dr. Priestley continued to be the technical trustee after that time, but he did not act.
I think I have now considered and disposed of the questions involved in the case at this stage. I must say, however, that I have been largely influenced by the position of the court and the Supreme Court in Simpson’s Appeal, to which I have referred. It seems to me the circumstances of the two eases are quite similar. The allegation there was, that the accountant had charged himself with moneys which had never come into his hands, the petition being presented by the surety in the guardian bond. This was held to be an error on the face of the account. ' It was also shown in that case that the surety had notice of the filing of the account, and by examining it he would have discovered that his principal was charged with a large balance for which he, the surety, would be liable. He" allowed the account to be confirmed; and yet the court struck off the decree of confirmation and allowed a rehearing, when it was shown that in fact the guardian had never received the larger part of the moneys with which he was charged. In this case, it is the beneficiary who is charged with a balance and makes the application for a rehearing. She alleges that the moneys charged on the debtor side of the account, upon which the balance against her is predicated, never came into the hands of the accountant, and that he never performed any of the services indicated by the account. I cannot distinguish the two cases, and am therefore constrained to say that in my opinion the decree of confirmation of the account of Dr. Joseph Priestley, trustee of Ann C. Rodrigue, filed July 15, 1882, should be stricken off and a rehearing of the whole of said account granted.
Various exceptions filed to his report by the respondent were overruled by the auditor. Said exceptions being filed with the report and renewed, the court, Rockefeller, P. J., filed an opinion, which after reviewing the facts concluded:
It is strenuously contended that the confirmation cannot be opened and that the petition ought to be dismissed:
First, because there is no error of law apparent on the face of the decree. If this is so, the objection is a good one, and I admit that 1 am not entirely clear in regard to it. The facts, however, are, that Dr. Priestley did not in any sense act as trustee for Mrs. Rodrigue, after April 9, 1878. He having refused to act, although not discharged by the court, a written agreement was put on record, signed and executed by the cestui q uo trust, who was sui juris, and her family, that all moneys were to bo paid directly to her. After that date all moneys were paid directly to her and not to the trustee, nor was any paid by him to her. The account, however, on the face of it, shows that commissions were charged on all sums paid after that date. It is claimed that this is not error apparent on the face of the decree. I think it is as much so as was the case in Simpson’s Appeal, decided in this court and affirmed by the Supreme Court, and I am sure there are many other cases in the books where the courts have looked beyond the record in the case, especially [into] other records for the facts, in order to ascertain whether there was error apparent on the face of the record.
Second, it is claimed that there is no new matter arising subsequent to the decree, and, third, no after-discovered evidence. Dr. Priestley had not actively acted as trustee since filing what he styled his final account in 1872, and Mrs. Rodrigue doubtless never expected another account to be filed. She lived in another state and did not discover that an account had been filed until 1887, when she was called upon to pay the balance in favor of Dr. Priestley, as it appeared in the account. This balance arose from the charge of the trustee for commissions. Of course, the presumption is that the legal notices were given of the filing of the account, and therefore Mrs. Rodrigue had constructive notice and this perhaps was all that was necessary. She was not entitled to actual notice. She has not produced what is considered strictly after-discovered evidence, that is, evidence discovered since the decree, which could not by diligence have been discovered and produced at the time. But the fact that she had no actual notice of the filing of an account which she had reason to believe was not necessary and never would be filed, will cause a court to consider carefully all other matters that may by law afford relief.
I am of opinion that Dr. Priestley ought to be allowed commissions or compensation for responsibility on account of the trust fund received and paid out from May, 1872, to April, 1878, inclusive, and that what is said in the per curiam opinion of the Supreme Court in Stevenson’s Est., 4 Wh. 103, is sound, except that in this case under the circumstances, perhaps two per centum is sufficient. I am further of opinion that from and after April 9, 1878, no commissions ought to be allowed.
-* * * *
The decree confirming the account is opened and a rehearing or review of the whole account granted as prayed for.
The account was then referred by the court to Mr. Hill, the auditor, for re-statement. On the hearing, testimony was submitted showing facts which induced the auditor to report alternative statements of the' account, one of which, A, allowed the accountant credit for commissions for services, responsibility, trouble and expenses, including attorney fees due to his legal advisers, $1,522.24; the other, B, allowing credit to the accountant, separately, for the same attorney fees, and commissions at 2 per cent on the amount of the money received from the administrator c. t. a. and paid over by him directly to Mrs. Rodrigue from May 1, 1872, to April 9, 1878.
Upon exceptions filed to this report by both the petitioner and the respondent, the court adopted statement B, reported by the auditor, striking out, however, one attorney fee and increasing the commissions to 3 per cent, making them amount to $980.34. Thus modified, the statement B was confirmed and a decree entered accordingly.
Pending the proceedings before the auditor, Mrs. Ann C. Rodrigue died, and letters of administration upon her estate were granted to Ephraim Cutter, and upon the entry of a final decree by the court, Mr. Cutter, administrator, took the appeal to No. 242, specifying that the court erred in overruling the several exceptions filed by the petitioner, and in allowing any commissions whatever to the accountant.
Mrs. Hannah H. Priestley, administratrix, took the appeal to No. 371, specifying that the court erred in overruling the several exceptions filed by the respondent, and in opening and reviewing the account, and reducing the commissions allowed to the accountant.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
