#### Leeper’s Appeal. [Leeper’s Estate.]

The exceptions to an administrator’s account averred, in effect, that the administrator purchased at his own sale the interest of the decedent in the real estate by selling it to one with whom he was in partnership, asking for a surcharge to the extent of the full value of the property sold. The auditor found that, while the property was bought by the administrator’s partner, there was no evidence that it was bought for the administrator, and that there was no fraud. The findings of faot by the auditor were affirmed by the court. *Held,*that the supreme court would not reverse, although the decedent had been a member of a partnership with the administrator, which was dissolved by mutual consent, and the fund in the administrator’s hands were the proceeds of the sale of the decedent’s interest in the land lately held in partnership.

*479May 7, 1888.

Appeal, No. 220, Jan. T., 1887, by Burritt Leeper et al., minor children of Wm. Leeper, deceased, by their guardian, from a decree of O. C. Fayette Co., dismissing exceptions to the report of an auditor, appointed to pass upon exceptions to an administrator’s account, in Wm. Leeper’s estate, at March T., 1884, No. 30. Trunkey, Sterrett and Clark, JJ., absent.

L. H. Frasher, the auditor, in his report, recites the exceptions and found the facts of the case to be as follows:

“ William Leeper died in Bullskin township, Fayette county, Pa., on March 7, 1880, leaving a wife and children surviving him. The decedent in his life-time was a member of the firm of Loucks, Larimer & Co., owning an undivided two-thirteenths interest in the stock of the same. The other members of said firm were Peter S. Loucks, also owning an undivided two-thirteenths interest, Jacob S. Loucks, John S. Loucks and Thomas J. Larimer, each owning an undivided two-thirteenths interest. The said firm were engaged in a general lumbering and planing-mill business in Scottdale, Westmoreland Co., Pa. On Jan. 10, 1880, the said firm was dissolved by mutual consent, and inventory of the property, real and personal, made by its members. At this time Peter S. Loucks bought the interest of Thomas J. Larimer, and Jacob S. Loucks bought the interest of his brother, John S. Loucks. Arrangements were then made to form a new firm to succeed the old, under the name of Peter S. Loucks & Co., the members of which were to be Peter S. Loucks, Jacob S. Loucks and William Leeper; but, owing to the death of the latter, the article of agreement, though written out by Peter S. Loucks, was never signed by the parties, and William Leeper, the decedent, never obtained an interest in the new firm. The property of the firm of Loucks, Larimer & Co., in which the decedent had an undivided two-thirteenths interest, consisted: 1st, of the planing-mill lot in Scottdale, containing about four acres and sixty-five perches, on which was the planing-mill, engine-house and lumber sheds; 2d, a lot on the railroad in Scottdale, 70 x 100 feet, on which was a frame dwelling-house, one and one-half stories high, known as the Fortney property; 3d, a lot about72 feet by 125 feet on Chestnut street, Scottdale, on which was a two-story dwelling house, and known as the ‘ Kilbride ’ property; 4th, the Greenlow property, on Broadway, Scottdale; and, 5th, a lot in Keiffertown, Fayette county, on which was a frame dwelling-house. The personal property of the firm consisted of stock in trade, lumber and outstanding accounts, also money in hand, as shown by the books.

“ Peter S. Loucks having become administrator of the estate of the said decedent, and, finding that the personal property was not sufficient to pay the debts of the estate, by petition, obtained from this court an order directing him, the said administrator, to raise, by sale or mortgage, the sum of $2,000 from decedent’s interest in purparts Nos. 1, 2 and 3, above referred to; all being situate in Westmoreland county. An order of sale was issued by said court, *480and, after notice given, a copy of which is hereto attached, the decedent’s interest in the above named purparts was sold, at public sale, on Dec. 30, 1880, to Jacob S. Loucks, for the sum of $955. Return of said sale was made and confirmed b}' the orphans’ court of Westmoreland county, on Feb. 19, 1881, as shown by recital in deed of Peter S. Loucks, administrator, &c., to Jacob S. Loucks, for the before-mentioned property, and offered in evidence by Alfred Plowed, Esq.

“ On Feb. 4, 1884, Peter S. Loucks, the above named admini-s trator, filed his first and partial account, in which he charged himself with the $955 above referred to, and seven other items, in all amounting to the sum of $4,160.58, leaving a balance in his hands for distribution of $156.99.

“To this account Burritt Leeper, a son and heir of the decedent, by his attorney, Edward Campbell, Esq., filed exceptions, and afterwards, on March 17, 1885, additional exceptions were, with leave of court, filed by the same party. The exceptions first filed, six in number, and attached to this report, the auditor has, after an examination of the testimony taken, overruled. The additional exceptions, two in number, are:

“ ‘ 1st. The accountant, himself, in fact, purchased the interest of the decedent in purparts Nos. 1, 2 and 3, of the Loucks, Larimer & Co. property by selling the same to' the accountant’s own partner, Jacob S. Loucks; said sale is therefore void. ’

“ ‘ 2nd. The accountant should be charged with the full value at the time of William Leeper’s decease, of the interest of said William in the said firm of Loucks, Larimer & Co., which said interest in purparts Nos. 1, 2 and 3 of said property, was worth at the said time $2,000. ’

“ The testimony of the administrator, Peter S. Loucks, shows that he did sell the decedent’s interest in purparts Nos. 1, 2 and 3, to his brother Jacob S. Loucks, who was at that time his partner in the firm of P. S. Loucks & Co. This, the exceptant claims, was a purchase by the accountant himself, and therefore the sale is void. The sale is absolutely void if accompanied by actual fraud, and the accountant, either directly or indirectly, was the purchaser; and, whether fraudulent or not, if purchased by the accountant at his own sale as administrator of decedent, it is voidable at the option of the heirs or any of them. The question to be decided first, then, is, did Peter S. Loucks, as administrator of William Leeper, deceased, sell the real estate of said decedent and become, directly or indirectly, the purchaser of the whole or any part thereof. There is no dispute about the property having been bid off by, and the deed made to, Jacob S. Loucks; but it is claimed that he purchased it, in part at least, for his brother and partner Peter S. Loucks. After a careful examination of the testimony given in this case, the auditor fails to find evidence to establish that fact.

“ Because the administrator was a partner with the purchaser, *481and, if we may assume, equally interested in obtaining for himself, or the firm, the property sold, yet this, taken by itself, proves nothing, and what have we to go with it ?

“There was much evidence taken as to the advertising of the sale, the manner in which it had been conducted; and the actual value of the property, all bearing on the question of good faith in the administrator in making the sale. It was claimed by exceptant that the real estate had been sufficiently described in the notice of salé, to enable parties wishing to buy, if strangers, to find the property; and that a party was brought there by the administrator to bid, in order to make it a legal sale. The notice of sale, offered in evidence and attached to this report, shows that the description of the property might have been more complete, but the fact that the notice was made out by the administrator’s attorney would naturally cause him to believe it would be done properly, and certainly relieves him of the charge of bad faith. As to the charge that a bidder was brought there to bid in order to make it a legal sale, this is denied by Samuel D. Aultman, the party said to have been brought, who says that Peter S. Loucks, before the day of sale, asked him to buy Leeper’s interest in the planing-mill, and that, on the day of sale, he, Aultman; bid it up to what he considered all it was worth, when Jacob S. Loucks made a higher bid and it was sold to him. The first of the additional exceptions is therefore overruled. And the second must also be; the evidence having failed to establish fraud or bad faith on the part of the administrator, and his report of the sale and the price brought having been confirmed by the orphans’ court of Westmoreland county, under the ruling in Armstrong’s Appeal, 68 Pa. 409, the amount'with which he can be charged has been judicially ascertained and is conclusive.”

The auditor directed that the costs of the audit should be paid by the estate.

The following exceptions were filed to the auditor’s report by the children of the decedent:

“ 3d. The auditor erred in finding that the accountant is not interested in the purchase of the decedent’s property, and in not finding that the said property was purchased by the accountant himself, according to the exceptant’s first additional exception.”

“ 4th. The auditor erred in not surcharging the accountant with the amount of money shown by the evidence to be the value of the decedent’s property over the amount realized for it by the accountant, as specified in the exceptants’ second additional exception.”'

“ 5th. The auditor erred in not putting the costs of the audit on the accountant.”

On May 17, 1886, the court overruled these exceptions and confirmed the report. The exceptants thereupon took this appeal.

*The assignments of error*specified the action of the court, 1-3, in overruling the exceptions to the auditor’s report, quoting them.

*482May 21, 1888.

*Edward Campbell,*for plaintiff in error.

The decree of the orphans’ court could not give the administrator any right to sell the real estate, as against the surviving partner: Shipe’s Ap., 5 Cent. 149; s. c. 18 W. N. C. 278; Horton’s Ap., 13 Pa. 67; Wallace *v.*Fitzsimmons, 1 Dali. 248; McCarty *v.*Nixon, 2 Dali. 65.

There is no similarity between this case and Armstrong’s Ap., 68 Pa. 409. That was a sale in partition, and all the heirs had their day in court. In this case the exceptants have not been heard until the present time.

Under the circumstances of this case, the burden was on the administrator to prove that his action was justifiable, and that he obtained the best price: Hill, Trustees, 784; Howell *v.*Sebring, 1 McCarter, 85; Paul *v.*Squibb, 12 Pa. 296; Rosenberger’s Ap., 26 Pa. 67.

In a case like this, a trustee’s account may be surcharged. Dundas’s Ap., 64 Pa. 325, decided that the court could either strike out of the account the charge for the proceeds of the sale of the land or surcharge the executor with the additional price it would have brought at a fair sale.

*Chas. E. Boyle,*with him S'. *L. Mestrezat*and *Hozvell & Reppert,*for appellees.

The question involved in the first assignment of error is a question of fact, an unfounded assumption, and the auditor and the court found that there was no evidence to support it.

The question raised in the second assignment is effectually settled by Armstrong’s Ap., 68 Pa. 409, the decree of confirmation of the sale by the orphans’ court being conclusive. •

The administrator of the deceased partner had the right to sell the real estate: Foster’s Ap., 74 Pa. 391; Grim’s Ap., 105 Pa. 375.

Horton’s Appeal, sustains the position that the surviving partner, and not the widow and heirs, would have the right to object to the sale made by an administrator instead of by the surviving partner. Shipe’s Appeal is to the same effect.

Dundas’s Appeal does not apply here and is distinguished by the court in the opinion given in Armstrong’s Appeal, above.

The administrator having acted carefully and honestly, it would be a hardship, and an injustice to make him pay the costs of this proceeding.

Per Curiam,

The foundations of this appeal seem to us exceedingly flimsy; they are constituted of assertions rather than facts, and cannot, therefore, affect the findings of the auditor.

Decree affirmed at costs of appellants.