Gilbert's Appeal

Mr. Justice Panson delivered the opinion of the court, March 15th 1875. The finding of an auditor upon the facts should not be disturbed unless for clear error. The reasons for this rule are substantial and have been so often stated as to make their repetition unnecessary. In this case the exceptions to the report of the auditor upon the issues of fact were sustained by the Orphans’ Court, and the fund for distribution reduced from $8648.15 to $4790.34. This was assigned for error. [270] We fail to see in the opinion of the court below any sufficient reason for the judgment. If Mr. Baugh’s evidence as to the profits of the firm was not reliable, there was an easy mode of showing it. His statements were based mainly upon the books of the firm in the possession of the administrators, of which firm one of the administrators was a member. No attempt was made to show from those books that the estimate of the witness was inaccurate. Mr. Rhoads was in the position of administrator as well as surviving partner. It was especially his duty to have closed up the business of the firm, and accounted to the estate of his deceased partner. No account appears to have been furnished by him as surviving partner. Instead of doing so he became the purchaser from his co-administrators of the interest of his deceased partner. The sale was private, and the amount paid $150. Not long after he thus acquired this interest he made a re-sale of it at a large advance. The administrators may have acted in good faith, and under the advice of counsel, as was suggested by the court below. But neither good faith nor the advice of counsel can avail to sustain such a transaction as this. It does not need authority to show that an administrator cannot so deal with property intrusted to his care. The sale to Rhoads was voidable at the election of any party in interest; and the accountants were properly charged with what the auditor found to he the real value of Dr. Johnson’s interest in the firm property and business. The court below reduced the amount of interest with which the auditor had surcharged the accountants, for the reason “ that administrators cannot always safely invest various amounts received from time to time.” There would have been more force in the reason assigned if such surcharge had been made because of the failure of the accountants to keep the funds of the estate invested. This, however, was not the ground of the surcharge. It was made for the reason that the administrators had allowed one of their number to mingle the funds of the estate with his own money and use it in his business. That such use was made of the money sufficiently appears from the evidence. The liability to account to the estate for interest is the legitimate conclusion from this fact. The court below in weighing the evidence evidently relied upon “the well-known character of the administrators.” We do not lose sight of the fact, however, that they were the parties immediately interested in the decree, and we see no good reason why their testimony should outweigh that of other witnesses who have no interest in the controversy. The decree of the Orphans’ Court sustaining the exceptions to the report of the auditor is reversed; the report of the auditor is confirmed, and distribution ordered to be made in accordance therewith ; the costs of the appeal to be paid by the appellees.