Estate of Gilpin

OPINION, Me. Justice Claek : The only question presented for our determination in this appeal arises upon the compensation claimed by James H. McCain, the executor of the last will and testament of John Gil-pin, deceased, on settlement of his partial account. It is a fact well established, that the testator left his estate in a most extraordinary state of confusion and complication. He was a lawyer by profession, and for twenty years or more prior to his decease, had been engaged in a large and lucrative practice. His individual affairs were confused with those of his clients. He had a peculiar way of doing business: he kept no regular books, trusting, perhaps, largely to his memory, and to loose memoranda which it was difficult after his death to find, and, when found, even more difficult to understand. Mr. Gilpin died on November 3, 1883, and it was not until August 26, 1884, that the appraisers were able to file an inventory. This proved to be so imperfect that a supplementary inventory was filed on the 10th October following, and, notwithstanding the time that had then elapsed, and the efforts that had been made, other assets of the estate were afterwards discovered, amounting to $19,000, and upwards. The accountant in his testimony states, in substance, that he found Mr. Gilpin’s papers in the utmost confusion; that he kept no proper accounts, either of his private or professional business. He made memoranda in his diary, upon letters, receipts, and stubs of checks, and these memoranda were of the most important transactions. Sometimes it took days to hunt [150] up one particular item. In bis diary, be entered memoranda of bis borne and office expenditures, of money loaned and money received, his own personal business and the business of other people. He had no docket of bis cases, or of his judgments ; he had memoranda of them in little pass-books, and in other places. The executor was obliged to get a docket made up, with all his cases, both the judgments due him and the judgments he was concerned in. The diaries were collected and the various items contained therein were posted into a book. He says: “ The entries in Mr. Gilpin’s diaries were in the nature of mere memoranda; they were not such accounts as could be posted as book entries. Mr. Wright just took those diaries and put the items into the cash-book and ledger as they were. They were all mixed up; there was no regularity, and oftentimes nothing to show definitely what account the item really belonged to, so that when they were posted, whilst in many cases they were of assistance, in others we had to go back to the original diaries and hunt and study them up. We could not be guided by the posting, but that was a necessary step towards getting the accounts into shape.” From 1860 to 1866, he took receipts in receipt-books, but after that his receipts were taken upon loose slips of paper, which were not filed away, but were thrown into a big box. His check stubs did not show for what the check was issued; sometimes the amount was wanting, sometimes the number, and in no case did the stub disclose the name of the person to whom the check issued. There was a book in the safe in which was found a number of his notes and obligations, but similar securities belonging to other people were found with them in the same book. There was also a large box in which other notes and obligations were found, but his own personal business was confused with the business of his clients and others. The leases of his real property, and of the property he held in common with others, were some of them in writing, and some of them were merely verbal leases. There were bundles of old leases; and his father’s estate papers, and his own, and his clients’, were more or less mixed. He had real estate in Kittanning, in Yalley township, in South Buffalo township, in North Buffalo township, in Washington township, and in Ap-pollo ; he was also interested in valuable real estate in Mary [151] land, and, by tbe terms of the will, the executor was authorized to have charge of and to lease the testator’s real estate. In Kittanning, he was interested in what is called the Eagle House block, a hotel property with business places and dwelling-houses; in the Schmauk property, and the Hartig property, also in the Lee property; and he owned the buildings in which were the office of Gilpin & McCain. Mr. Gilpin, in his lifetime, had charge of all these properties, and at his death, by the terms of the will these duties devolved upon the executor. The leasing of these various properties, the collection and application of the rents, the adjustment and payment of the taxes, the repairs and the insurances were matters which required constant care and attention and involved considerable responsibility. The main difficulties in settling this estate, it would seem, did not consist in the collection and handling of the moneys, but in the ascertainment of the assets, in the adjustment of the accounts and claims, in the care of the real estate, etc. There was much litigation threatened, which, in view of the complicated and confused condition of Mr. Gilpin’s accounts, might have been disastrous to the estate. But through the labors of Mr. Lee, who was not only “the life-long friend and adviser of Mr. Gilpin,” but a lawyer of eminent ability and known integrity, much of this litigation was averted. Through his intervention, satisfactory settlements were effected, the items of which seem plain and simple, but as these items represent the result of many days of patient labor and arbitrament, the settle ments themselves, as printed, show but little, perhaps, of the complications from which they were drawn. There was nevertheless, considerable litigation for the conduct of which the accountant was responsible. Mr. McCain appears to have accepted the office of executor with reluctance; his co-executors named in the will, perhaps anticipating the difficulties to be encountered, renounced their right, and the labor and responsibility devolved upon Mr. McCain alone. The estate was large, and was involved in extraordinary difficulties; the responsibility was correspondingly great, and the accountant is entitled to receive compensation accordingly. The office of an executor or administrator is not one to be undertaken for profit, but it is not to be expected [152] that a business or professional man will sacrifice bis own business, and subject himself to hazard, without suitable remuneration. Compensation is the rule. This court in many cases has said that five per cent is the ordinary commission of an executor who has carefully managed the estate ; more will not be allowed without evidence of unusual services or responsibility. The accountant has adduced some evidence as to the value of his services ; three witnesses have testified that the compensation claimed is not excessive. He has himself given somewhat in detail the nature of the difficulties attending the administrar tion of the estate, and has submitted his account as the result of his labors. The auditor, who had opportunity to examine the account in detail, and who saw and heard the witnesses, has sustained the charge. The exceptants have called no witnesses ; they rely upon the testimony adduced by the accountant, and upon the account itself, and contend that nothing has been shown to justify any extraordinary claim for compensation. When the auditor and the court have arrived at widely different conclusions, it is our duty, giving the report of the auditor the weight to which it is entitled, to determine which view of the case best accords with the facts exhibited in the proofs, and the law as declared in similar cases: Fahnestock’s App., 104 Pa. 46; and in the consideration of a question of compensation to an executor or administrator, we may differ from both. Upon a full consideration of the whole case, we think the accountant’s charge is perhaps too high, but we are of opinion that the learned judge of the court below made too great a reduction. We have concluded that his compensation for services rendered to the time of filing this account should be fixed at $4,650. The decree of the Orphans’ Court is reversed, the compensation of the executor to the time of filing this account fixed at $4,650; and, with this modification, the account, as adjudicated by the Orphans’ Court, is confirmed; the ap-pellees to pay the costs of this appeal.