Fahnestock's Appeal

Mr. Justice Clark delivered the opinion of the court, October 3d 1883. The Auditor, upon a review of this case, finds that there is no evidence of any willful default or bad faith on the part of Edward G> Fahnestock, the trustee, and that the charge of gross negligence is not made out. The finding of an Auditor is entitled to great consideration, and will not be set aside, except for plain mistake; when this is shown, as we have said in Chew’s Appeal, 9 Wright 230, “ like all other judicial proceedings, it is subject to correction.” Additional force is given to an Auditor’s report by the confirmation of the court: Bull’s Appeal, 12 Harris 286; Dellinger’s Appeal, 21 P. F. S. 425. The finding of an Auditor upon the [50] facts, which has been approved by the court below, will not be disturbed on appeal, except .for flagrant error: Gilbert’s Appeal, 78 Penn. St. 266. On the other hand, it must necessarily have less weight, when that confirmation or approval is refused: Bachman’s Appeal, 38 Leg. Int. 393. In the present case the Auditor and the court have arrived at widely different conclusions, and therefore it is our duty, giving the report of the Auditor that weight to which it is in itself entitled, to determine which view of the case best accords with the facts exhibited in the proof, and the law as declared in similar cases. At the time of the appointment of Edward G-. Fahnestock, as successor to Benjamin Deford, in the trust, under the will of Joseph Baugher, deceased, the real estate had all been sold, according to the directions of the will, and the entire trust fund and property consisted of the following, viz : Mortgage — -Sanford Schroder . . $2,416.66 Note — Samuel Fahnestock . . . 5,200.00 Three months’ Interest . . . 78.00 Cheek — Benjamin Deford . . . 2,282.89 Total . . $9,977.55 These were the assets which actually came into Fahnestock’s hands, as trustee; one-half of this was held by him in trust for Annie M. Baker, the other half for Caroline Heiner, under the terms and conditions of the will. The principal of the trust fund, being thus already invested, no duty of speedy collection or disbursement devolved upon the trustee; what was more desirable was a secure and continuous investment. If the investments, already made, were in his judgment safe and -secure, it was his duty, under the circumstances, to leave them -undisturbed. The mortgage of $2,416.66 was the first lien upon the -mansion or home farm of Joseph Baugher, deceased, containing 155 acres, for which Schroder, the mortgagor, had paid .at public sale $4,000. This certainly seemed an ample security for the indebtedness, such as a carelul and prudent man would have considered good, and we think the trustee was right in accepting the assignment as a safe investment. It is true, Schroder had' not been very prompt in the payment of interest, but he was then but little, if any, in arrear. After Mr. Fahne-stock’s appointment, however, the interest was not so .promptly paid, and in 1877, when judgment was taken on the ¡mortgage, the arrears of interest were $580. Schroder was a half brother of Mrs. Baker and Mrs. Heiner, being a son of the widow of Joseph Baugher, deceased, by a previous marriage. The trustee testifies that he was induced by the exceptant, Mrs. [51] Baber, not to enforce prompt payment of the interest by Schroder; this Mrs. Baber denies. The Auditor says, “ the denial is as emphatic and positive as the trustee’s assertion — a flat contradiction,” and without passing on this disputed matter, he finds that “ the trustee suffered the unpaid interest to accumulate, upon the honest belief that it was safe and in no danger of loss.” In the spring of 1877, Sanford Schroder made an' assignment for creditors, and the farm was at that time appraised at the sum of $3,000. The decrease in the valuation seems to have been the result of a general depreciation in real estate prior to 1877, attributable perhaps to the effect of the panic of 1873. It appears from the testimony, and the Auditor so finds, that the trustee inquired, from time to time, of those residing in the neighborhood of this farm, and that they fixed the value at about $3,000, and that from information thus received he was satisfied it was safe. After obtaining judgment upon his mortgage, Falmestocb proceeded against the land, and on the 14th April 1877, purchased it at sheriff’s sale, as trustee, at the sum of $2,000. From that time he held the land as part of the trust estate, receiving the rents, paying for repairs, taxes, &e. We are of opinion that the Auditor was right in determining that there was no evidence of willful default, or mala tides ; and that, in view of the positive testimony, showing that the trustee made frequent inquiries and received estimates of the neighbors, satisfying him that the trust was safe, “ and that he acted, or rather rested in this belief,” the charge of gross or supine negligence was not made out. The purchase of the land at the sheriff’s sale, under the circumstances, was compulsory. If he could, by reasonable diligence, have bnown the actual depreciation earlier, and brought the land upon the marbet sooner, better results might probably have been obtained; but it is a fact, bnown to all, that there is no article of commerce which admits of as varied and uncertain judgment, as to value, even among the well-informed, as real estate. There are so many elements or factors entering into a proper estimate, matters present and prospective, that a correct judgment is with difficulty formed. We are of opinion that this trustee acted in good faith, and that he should not be charged with interest on the mortgage debt beyond what he received. We thinb he should be’held to account on .the footing of his repurchase of the land for the benefit of the trust estate, and that therefore the costs of the levari facias, the taxes and repairs, the loss upon the mortgage debt, together with the amount invested in the purchase at the sheriff’s sale, are proper credits in his account. We are of opinion also that [52] he is entitled to commissions at the rate fixed in the will, and to reasonable expenses. The measure of diligence and care required of a trustee, is precisely that which a man of ordinary prudence would practice in the care of his own estate. This rule has been so often laid down in our books that it seems unnecessary to refer to any authorities on that point. A reasonable degree of vigilance and the exercise of good faith is the standard of the trustee’s duty. The office is often a thankless one, and if, as we said in Eyster’s Appeal, 4 Harris 372, guardian's or trustees “ are to be held responsible for all negligence, and are not allowed the exercise of a reasonable discretion and prudential care in the management of their trusts, it will deter prudent men from assuming the office, which in itself is sufficiently onerous and already undertaken by such men with reluctance.” This practically disposes of all the matters covered by the exceptions or which were submitted to the judgment of the Auditor. The court below, however, in the opinion and decree filed, took up other matters not in issue before the Auditor, and therefore, not referred to by him in his report, and these constituted the main features of the opinion of the court in the discussion of the question of the trustee’s liability. The court held the trustee liable for certain portions of the principal which it is alleged and stated in the account were paid over, with the interest, by the trustee to Anna M. Baker, the exceptant, under “ an agreement.” As these payments of principal were not excepted to, were not examined nor considered by the Auditor were not embraced in the exceptions to his report, we cannot see how they became matters proper for adjudication. “ The agreement ” referred to, is not* produced or shown in evidence ; the “ bond and release ” are not before us; no testimony was taken on that subject. Wo are necessarily confined in our investigation of the case to the issue distinctly presented. It may be that this application of the principal of the trust was an improper one, but we can only determine that question when.it comes regularly before us. The decree is therefore reversed, the report of the auditor confirmed and it is ordered that the " appellee shall pay the costs of this appeal.