Cuyler's Estate

Henderson, J.,

The accountant and one of eight distributees, entitled to a one-sixth share, have filed a number of exceptions, and as we agree with the rulings of the auditing judge and for the reasons given by him, they are all dismissed.

We shall, however, add a word in reference to certain of the exceptions. The facts are fully set forth in the adjudication. The accountant complains that, while he is charged with profits arising from unauthorized investments, he should be permitted to set off against them the losses which he has suffered also from unauthorized investments. The reasons given by the auditing judge refusing such set-off are rested so firmly on grounds of public policy that nothing need be added thereto.

The distributee exceptant seeks, however, to apply the same rule in aid of a surcharge of income. He contends that while the surviving life-tenant was in receipt of items of interest ranging from 5 to over 7 per cent., there were from time to time small items of principal uninvested, and for a period of years no income was received from a considerable unauthorized investment, and he asks that 4i per cent, interest be surcharged on these items.

The auditing judge points out, however, that under section 44 (b) of the Fiduciaries Act of June 7,1917, P. L. 447, the court shall determine the interest to be allowed “in all cases,” having regard, however, to “all the circumstances of the case.” The question, therefore, before us on these exceptions is, to use the language of Judge Penrose in Dugan’s Estate, 18 W. N. C. 39, does “the action of the auditing judge” do “injustice to any of the parties.”

The auditing judge held that under the facts of this estate it was fair to regard the income received during the whole period of the trust, and as it *324 exceeded what would have been netted from well-secured first mortgages, he refused the surcharge. The exceptant complains that the rule applied to surcharge the capital account should be applied to a surcharge of income. We cannot follow him in this contention, for the reason that the surcharge on the principal account rests upon considerations of public policy. No such considerations apply to the interest to be allowed as income, and which is, under section 44 (b) of the Fiduciaries Act of June 7, 1917, P. L. 447, peculiarly within the discretion of the auditing judge and not to be disturbed unless it does “injustice to any of the parties.”

In addition to the facts and circumstances found by the adjudication, we observe that when these trustees filed their executors’ account no commissions were taken. These commissions, with interest thereon for the period of the trust, together with commissions on income, would have amounted to over $12,000. While it is true that no commissions were claimed at any time, it is equally true that the parties in interest have benefited thereby.

The exceptions are dismissed and the adjudication is confirmed absolutely.