Casely's Estate

Trusts and trustees — Commissions—Employment of real estate agent— Collection of rent by trustee. Where a trust estate consists of an interest in a number of small houses in a city, and the trustee and other parties have also an interest in the houses, the fact that the trustee had at times collected rents and paid them over to a real estate agent employed by all of the owners to collect and distribute the rents, does not prevent the trustee from claiming in his account, not only his own five per cent commissions as trustee, but also five per cent commissions paid to the real estate agent. Decedent's estates — Counsel fees — Findings of fact. Where the amount of a trustee’s claim for counsel fees has been contested before the auditing judge, but the auditing judge has found that the claim is reasonable, such finding confirmed by the court in banc will not be disturbed by the appellate court in the absence of clear error.

Appeal, No. 146, Oct. T., 1903, by John A. Casely, from decree of O. C. Phila. Co., Oct. T., 1892, No. 585, dismissing exceptions to adjudication in estate of Alexander Casely, deceased. Exceptions to adjudication. At the audit before Ferguson, J., objections were made to the following items in the account: Commissions to accountant .... $274 87 Commissions to A. C. Wheller, real estate agent 274 87 Fee to D. J. Callaghan, Esq. .... 150 00 The adjudication was in part as follows : The auditing judge does not see any reason why the accountant should not have his commission. The amount charged is very reasonable for ten years’ services, and there is no allegation of any dereliction of duty on his part, or want of honesty or fidelity in the management of the estate. The auditing judge supposes, however, that the objection to this item is made in connection with the objection to the next item above referred to, which is for commissions paid to a rea] estate agent who had charge of the property. It was claimed that the trustee had no right to pay an agent a commission for collecting rents, and charge, in addition thereto, a commission himself. This position is not tenable, as it has been held in numerous cases in this court that a trustee has the right to employ an agent to take charge of real estate and collect the rents thereof, and that he is entitled to his commission upon the money which goes through bis hands and which he has the labor and responsibility of distributing, as well as having the agent paid for his services the usual compensation. But it was alleged in this case that the agent in question did not perform the service of collecting the rents, but that the same were collected by the trustee himself. This raised a question of fact, and considerable testimony was taken. It appeared that the trust estate consisted, as before stated, of undivided interests in a number of pieces of real estate, some of the interests being small as one twenty-fourth. Therefore it became very necessary that one person should have charge of all of it and make the distribution of the rents among the various persons entitled thereto as the same were received. Mr. Wheller, a real estate agent, was selected for this purpose. He had the charge of that real estate; he made the leases when new leases were necessary; he looked after the repairs and he collected the rents. It was proved, however, by the tenants that in a number of cases they paid the rent to the trustee directly. But this happened because he was interested in other property in the neighborhood, and, as a matter of accommodation and convenience to Mr. Wheller, he carried the rent to him, to whom it had to go in order to make distribution among the parties interested. The trustee was not entitled to the whole rent received by him, but was only entitled to the fractional part which belonged to the cestui que trust, and therefore he carried it to Mr. Wheller for the purposes aforesaid. Besides, the evidence upon this point, while showing that the trustee did sometimes collect the rent, was so vague, indefinite and uncertain as to the amounts which •were collected by him that no surcharge could possibly be (founded thereon. In fact, counsel admitted at the audit that they did. not know what amount they claimed. Under these circumstances it is impossible for the court to find out. These items of credit are allowed. The objection made to Mr. Callaghan’s fee of $150 was also overruled. The account, as before stated, covers ten years, and it required twenty-four closely typewritten pages to state it. The auditing judge thinks that in view of these services the fee is not unreasonable, and this credit is also allowed. Exceptions to the adjudication were dismissed by the court in banc, Penrose, J., filing the following opinion : The questions represented by the exceptions have been very fully considered by the auditing judge, and as they relate to matters of fact, his findings in the absence of clearly shown error are conclusive. We think, however, that his conclusions are entirely correct. The account is very voluminous and covers a period of ten years, yet every payment for which credit is claimed has been so completely established that not one is the subject of exception. The fact that the trust estate is held jointly with other owners explains very satisfactorily the reason for allowance of commission to the agent having charge of the collections of the rent of the joint property, whose rights in this respect are not affected by reasons of collections, having, in the first instance, often been made for him by the accountant. The latter was only entitled to receive from him the proportion belonging to the trust estate, and having so received it became, in turn, entitled to the commissions usually allowed to a trustee. So far as Ave can see, there is no ground, whatever, for disalloAving these commissions. There is no duty on the part of the ordinary trustee to file “ triennial accounts,” though such an idea seems to exist. The error may have had its origin in the act of assembly requiring triennial accounts to be filed (in the clerk’s office, and not for adjudication) by a guardian; or perhaps the Act of April 11, 1879, P. L. 21, providing for the appointment of trustees to take charge of the property of those who have been absent for a specified period, and for the filing of triennial accounts by such trustees, may, from the arrange, ment of the act in the digests, have been incautiously read as applying to every species of trustees. The act, of course, has nothing to do with the trust which is the subject of the present account, though it was in the power of the cestui que trust, at all times, to compel the filing of an account by citation from this court. We think also that the allowance to counsel for preparation of an account so voluminous, and for protracted services before the auditing judge was not unreasonable. The exceptions are overruled, and the adjudication confirmed absolutely. Errors assigned were in dismissing exceptions to adjudication. The accountant acted falsely, unfaithfully and dishonestly toward the estate in attempting to charge it for services which Mr. Wheller had never rendered and has thus forfeited his trustee's commissions in asking for a false credit: Swartswalter’s Account, 4 Watts, 77; Clauser’s Estate, 84 Pa. 51; Trust Estate of Sarah Nagle, 12 Philadelphia, 25 ; Steger’s Estate, 3 W. N. C. 368. The attorney’s fees are excessive as allowed to the accountant : Kidder’s Est., 3 Kulp, 443; Hays’s Est., 153 Pa. 328; Willits’s App., 20 W. N. C. 22; Schuck’s Est., 30 P. L. J. 431; Nicklin’s Est., 2 W. N. C. 495; Sterrett’s App., 2 P. & W. 419; Dougherty’s App., 20 W. N. C. 29.