Stearly's Appeal

The opinion of the court was delivered, by Thompson, J. — The accounts of this appellant have been so often before auditors and courts, it would be strange if anything still remained for serious controversy. After a careful study of all the reports, and the opinions of the courts upon them, and making ourselves acquainted with all the proceedings from first to last in this troublesome trust, and so with the merits of the exceptions now before us, we are constrained to say, that we see nothing to change or modify in the decree of the Common Pleas. The reasons given by the auditor for the non-allowance of commissions on the sum of $1290.87 are satisfactory. It plainly appears that the collection of the rents, aggregating that sum, was an unnecessary and self-imposed duty, resulting from what might be called a perverse withholding of a conveyance of the property from whence they were derived. Had the conveyance been made, the collections would not have been required to have been made by the appellant. Under such circumstances, the trustee could not claim compensation for services resulting from his own wrong. Nor do we see any error in charging him with the interest on the sums so received. If he neither invested them nor paid them over, he is, according to every precedent, charge [531] able with interest — there being ho pretence that there were debts liable .to call for payment out of them. Nor can we say that there is error in any other part of the interest account. The result may be somewhat severe on the appellant, but he might, we think, have avoided much of the severity if he had been less litigious himself. We have not been able to comprehend the objection to the distribution, even if the appellant had a right to make it. The guardian of the children of Walker and of Alexander were entitled to the balance of the estate; the Apples having already received their share, and the distribution was so decreed, and it was right. In consideration of the pendency of the exceptions and the nature of the case, we will affirm the decree of the Common Pleas, without calculating interest since the date of the decree. Now, to wit, March 25th 1861, the decree of the Court of Common Pleas affirmed, as of June 30th I860, without interest from this date. The costs to be paid, by the apnellant.