Benezet v. Hess

Opinion by Trexler, J., In Morley v. Carson, 240 Pa. 546, in an action by real estate brokers against coexecutors for commissions for obtaining the sale of real estate belonging to the estate and held by the executors as trustees, binding instructions were given for defendants because it appeared that not all of the executors had cooperated with or authorized the bargain for the sale of the property or had entered into the negotiations concerning its sale or had ratified the contract with the plaintiffs. In the case before us it appears that the defendants were not merely executors engaged in the duty of winding up the .estate and distributing it to those entitled to it under the will, but were engaged in duties which ordinarily do not come within the scope of- executors, the testator apparently having in view the continuation of the estate and for that purpose giving extraordinary powers to the executors. They were allowed to exchange the real estate of decedent for other real estate and in turn again sell the real estate so acquired. As these were not the ordinary duties cast upon executors but were in the nature of a trust all parties named as executors had to participate in the contract or purchase as .well as in the negotiations preceding it or collateral to it. As trustees, as was stated in Morley v. Carson, supra, “We must regard them as subject to limitations and re [412] strictións as to their authority to act which are peculiar to trustees under a will as distinguished from executors” : See DeHaven v. Williams, 80 Pa. 480. The fact that they are named as executors does not determine the question. It is the nature of their duties which we must consider in determining whether they were acting as executors or trustees. There is no evidence that the other trustee had had any part in any of the negotiations with the plaintiffs. There is no evidence that she had any actual knowledge of the contract which is the basis of plaintiff’s claim. There was no evidence from which the jury could infer that the executors or trustees who acted in the matter had any authority from her so to do. As trustees they were bound to act together. Judgment affirmed.