The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-03-12

phans' court, yesterday handed down
an opinion in the matter of the estate
of Ann A. Connolly, deceased. over
ruling all but one of the exceptions
to the accountants report, and trans
mitting this exception to the court of
common pleas to have the facts In the
matter determined. The opinion sub
stantially reads as follows:
There has been considerable litigation in this
estate. Ann A. Connolly the testatrix. died on
the 2Sti day Of June, 1885, leaving will which
was probated on July Goth, 1898, in which two or
her sons, l.. Tyler Connolly and Joseph +. Con-
molly, were named executors. Joseph f. Con-
molly. one OF the executors, died on February 3D.
1899. and after that time the surviving executor
continued to attend to the duties OF his trust
until April S, 1901, when he was removed by
order of court. The proceeding leading 10 MS
removal, based upon the petition OF some oil
The heirs, dcpositions were taken, and the order
of removal was then made by Judge John L.
Kelly.
The opinion filed in that proceeding states that
'Although the executor filed answer denying
the charges contained in it Uhc pctition) he
las not seen ft to offer any evidence to sustain
lis answer and contradict the evidence con-
tanned in the dcpositions Of the petitioners, and
the matter is before us on the petitioners dcpo'
tiions only" The specific assigned by the
court LOT tnc removal Is, tnHl, Will rtIcI'hNc w
n disputed claim of two hundred and scvcnty.iive
dollars, the executor stands in a hostile position
10 the estate OF course the legality or pro-
pricty of that decree is not before nc. nor do
wish to int innate that under the evidence then
before the court, any other conclusion could have
been reached. | refer to this matter simply as
bearing upon the right of the executor to the
commissions charged, which is one Of the sub.
jccts Of attack in the exceptions filed in this
proceeding.
BOTH SIDES HEARD.
Roth sides have been fully heard in this pro.
cccdng, and | do not feel that the fact Of the
removal Of the executor under the circumstances
just referred to, is necessarily conclusive Of his
right to charge commissions.
The surviving executor has filed two accounts,
the first and partial account Nov. r. 1890;
and the second and final Dee. 10, 1901. Ex-
ccpticns were filed TO each a Sount, and by agree
mcnt of counsel all the exceptions to both ac-
counts will be audited together in this pro.
cecding.
Commissions arc in the nature of a brokerage
or allowance TO factor ur agent, but a trustee
may earn compensation without receiving
dollar. As to the sum to be allowed, it should
also depend to extent, upon the amount OF
the fund. Circumstances may also affect the
amount of commissions, as for example, where
collection is made of small Sums with great
difficulty, of large sums with almost no
trouble at all. In the former case, five per cent.
may be inadequate, while in the latter case, it
would be cxorbiant compensation. See
Brewst., Or. Court Pr, Sec. 4i5l. Five per cent.
is the general and ordinary commission of an
executor who has carefully managed the estate.
Gilpin's Est, 1888 Pa 152.
1t appears by the evidence, that at the time
Of the death of the testatrx, there a num-
her of unpaid bills, and only twenty-five dollars
in cash to meet them. There was two mortgages
due the testatrix, Of 5000, and one of
$1,000. In order to meet the indebtedness OF The
estate, and TO defray expenses, well as TO pay
the legacics it became necessary to realize upon
these mortgages before they became due.
SALE DIFFICULT
The executors attempted to do so, but found
'ome difficulty in efecting sale Objections
were offered to the security offered by the
mortgage of $1,000 it being contended by those
10 whom the executors applied, that the property
mortgaged not of sufficient value to secure
the payment OF that Finally the executors
secured from the Dime Deposit and Discount
bank their personal note, secured by an
signment OF the 5000 mortgage as collateral
curity, sufficient sum to meet the present
needs Of the estate. Both executors at first, and
the surviving executor later, also transacted the
other ordinary business OF the estate, collected
money on the mortgage Of five thousand, paid
the loan to the bank, paid the lcgacies and
debts, and apparently did everything required
by the law except that the account not filed
until a citation had been issued to compel an ac-
counting.
| have carefully examined the records and evil
dcncc, and cannot discover any want OF care
diligence upon the part OF the accountant in the
management OF the estate. 1t is true that the
cNCeptans allege that he has paid some claims
which were charges "rainst himself, instead OF
the estate, and that he has paid himself an al
l,trn1 lnht ,pbi,.i, npt llp lip,
The tcstatriX. Ii he has made mistake in the
payment Of bills this can be corrected by sur.
CHARGE but this should not dehar him from any
right 10 pay for his services, in the absence OF
fraud gross mismanagcment.
Mere negligence or carcessness will not work
forfeiture OF commissions. McMGnus Est, "a W.
n. C.. 222.
1t appears that about $1,000 passed through the
hands of the executors. and the usual commits.
sion Of per cent. upon this sum, would amount
10 $500, while the commissions charged are only
$3.50 or 3ls per cent, for both executors,
Considering this charge for commissions as
having been made for one executor | cannot
lind under all the evidence in the case, that
il Is excessive.
The exceptions relating 10 the commissions
charged by the accountant urc therefore over
ruled and dismissed.
TESTIMONY INSUFFICIENT.
ceptant labors, in procuring evidence, | have
carefully considered all the testimony he was
nble to adduce, with view to giving it all pos.
sible weight, | have been unable, however, 10
find sufficient in the testimony to warrant in
sustaining any OF the other exceptions filed TO
either account. with the possible exception OF
the FIRST exception filed TO the first partial ac
count, viz: that the Accountant fails to charge
himself with $275, the amount which he owes
the said estate, having borrowed the said amount
just previous to the death of said Ann Connolly"
The evidence offered to sustain this exception il
not strong. and it is met with evidence which
seems to indicate that such debt was due.
l find from the evidence that J.. Tyler Connolly
did not owe his mother anything up to period
Of three months before the death OF Mrs. Connol
ly; and i will award issue TO determine the
question OF fact, as to whether or not a loan of
1915 was made by Mrs. Ann A. Connolly to l..
Tyler Connolly within three months prior to the
death of Ann A. Connolly on June 2s. 1895, in
the following form, to wit;