Opinion
08-16-1893
BECHTOLD et al. v. READ et al.
Wm. C. Mayne, for exceptants. Chas. E. Hendrickson, for defendant Lippincott Walter A. Barrows, for defendant Read.
Bill by Henry Bechtold and others against Nathan S. Read and others for an accounting. Heard on exceptions to a master's report.
For facts not appearing in the report, see Bechtold v. Read, 22 Atl. 1085.
The following are the master's report and the exceptions filed thereto:
"in pursuance of an order of this court in the above stated cause, made on the 11th day of February, 1892, by which it was ordered that it be referred to Carroll Bobbins, one of the masters of this court, to take and state an account of the executors under the last will and testament of Samuel Bechtold, Jr., deceased, with the devisees and legatees under said will, of all and singular the real and personal estate of the said decedent which has come to their hands, possession, or control as executors, and for all of such estate with which they are by law chargeable, crediting them with so much thereof as was actually disposed of in the payments of debts and the proper and necessary expenses of the settlement of the estate; and to charge the said Nathan s. Read with all moneys received by him in cash or upon the maturity of any promissory notes taken and retained by him upon the sale of any of the real estate of said testator; and to charge the said Wallace Lippincott with the amount of moneys received by him upon the maturity of any promissory notes given for the purchase of any of the real estate of said testator, and which notes came to the hands of the saidLippincott as executor as aforesaid; and to report what lands remain unsold of said decedent's estate, and what lands were conveyed to said Lippincott at the sale under the Barnes judgment, and in whose name the title to said lands now is, and, if any portion of the said lands be now owned by bona fide purchasers, what portion; and, further, to report what lands of said decedent's estate are held by said executors, or either of them, or by any persons for them, and what lands of said estate have been sold to bona fide purchasers for valuable consideration, and what was the consideration of such sales, —I, the said Carroll Robbins, do respectfully report that, having duly notified the said parties to said suit, I was attended at my office in the city of Trenton by Edwin Robert Walker, Esquire, and William C. Mayne, Esquire, of counsel with the complainants, and by the said defendant Wallace Lippincott and Charles E. Hendrickson, Esquire, his counsel, and by the said defendants Nathan S. Read and Walter A. Barrows, Esquire, counsel for himself and said Read, on the 29th day of July, 1892, and, by adjournment from time to time, at sundry times thereafter; and that in their presence I have taken the depositions of witnesses produced before me, which accompany this report and make a part thereof, and I have considered of the matters referred to me. I have ascertained what lands were conveyed to said executors by Joseph P. Burke by deed dated January 28, 1870, and also which of said lands were conveyed by said executors, and also those of which the legal title still remains in said executors, all of which appears in detail in Schedule A, hereto annexed. And I have also ascertained what lands were conveyed by the said executors to Alexander Rhodes without consideration, and which of said lots were conveyed by him to said Lippincott, and which have been conveyed by said Lippincott to bona fide purchasers, and also those of which the legal title still remains in said Rhodes, and those of which the legal title still remains in said Lippincott, all of which appears by Schedule B, annexed hereto. And I have ascertained what lands were conveyed to said Lippincott under the Barnes judgment, as will appear by Schedule C, hereto annexed, and I also find that the said Lippincott has conveyed the greater part of said lands, if not all, to bona fide purchasers; but I am unable to report what lands, if any, remain, because most of the lands were described by lot numbers in the conveyance from the sheriff to Lippincott, and most of them were described by metes and bounds in the conveyances made by Lippincott, and the evidence does not enable me to make a satisfactory comparison. I have also ascertained what lots were comprised in the Leach mortgage, which of them were conveyed to said Read, which of them he has conveyed, and which of them he still holds the title to, as will appear particularly in Schedule L, hereto annexed. I have also taken and stated the accounts directed by the said order to be stated, and have stated the same in schedules hereto annexed, which I pray may be considered as part of this, my report; and in taking the said accounts I have ascertained the amount of moneys received by the executors from the sale of lands conveyed by them prior to April 1, 1875, to bona fide purchasers, by taking the considerations mentioned in the several deeds made by the said executors to the purchasers, except in the case of the deed to Henry R. Lewis, in which case I found the amount actually received from said sale to have been thirty dollars, which was a fair value for the lands conveyed to said Lewis, and that the total amount received from said sales was the sum of four thousand and thirty-six dollars and fifty cents, as appears more fully by Schedule D, hereto annexed, which schedule also sets forth in detail the dates of the several conveyances and descriptions of the lands conveyed, the names of the grantees, and the places where they are recorded. And I do further find and report that the said Nathan S. Read received the proceeds of said sales, and delivered the deeds, in almost every instance, and that said Lippincott received from purchasers directly, and from the said Read on account of said sales, the sum of fourteen hundred and nineteen dollars and fifty cents, ($1,419.50,) and the said Read retained the balance of twenty-six hundred and seventeen dollars; and I base this finding on the account filed by said Lippincott in the orphans' court of Burlington, accredited, as it is, by the subsequent action with respect thereto of the said Read in the later proceedings in said court with respect to the estate of Samuel Bechtold, Jr.; but I am unable, from the evidence produced before me, to specify accurately, in more than a very few instances, how much each of said executors received from each of said sales in particular, and therefore have not attempted to do so. And I do further find and report that a part of the said lands conveyed by said executors, as particularly set forth in said Schedule D, had been conveye'd by the said decedent in his lifetime, and were not a part of his estate, to the amount of five hundred and seventy-two dollars and seventy-four cents, ($572.74,) as will appear more particularly by Schedule E hereto annexed, which schedule also sets forth the dates of said conveyances by said Samuel Bechtold, Jr., the grantees, a description of the lands, and the places where they are respectively recorded, and the amount allowed in each instance on account thereof; but I am unable'to decide from the evidence before me which of said executors received the consideration for the lastmentioned lands when conveyed, or attempted to be conveyed, by the said executors. And I do further find and report that each of said executors, Lippincott and Read, received the further sumof two hundred dollars from the sale of lands to C. J. Schwalber on December 5, 1888.
"And in stating the account of the said Nathan S. Read individually with the said decedent's estate have charged him with the said sum of twenty-six hundred and seventeen dollars received and retained by him as part of the proceeds of the sale of lands conveyed by the said executors as of the 1st day of April, 1875, and the further sum of two hundred dollars received by him from the said sale to Schwalber on December 5, 1888, with interest thereon from that date; and have credited him with the sum of three hundred and seventy-one dollars and thirty-two cents, being his proportional part of the said sum of five hundred and seventy-two dollars and seventy-four cents, allowed to the executors for lands conveyed by them which did not belong to the decedent's estate; and I have also allowed him for all disbursements and allowances claimed by him, except commission as executor of the said estate, treating all debts and credits prior to April 1, 1875, as of that date, and charging interest on the balance then due from that time, and also allowing interest on all disbursements made since April 1, 1875; and I do find and report that the said Nathan S. Read is indebted to the said estate, on his individual account, in the sum of one thousand three hundred and seventy-five dollars, —all of which appears more at length in Schedule F, hereto annexed. And in stating the account of the said Wallace Lippincott individually, and jointly with the other executors, I have ascertained the amount of disbursements made by him, and I do find and report that the said Lippincott has made disbursements, and is entitled to credits and allowances, to the amount of eight thousand two hundred and fifty-three dollars and seventy-one cents, ($8,253.71,) which appears in detail by Schedule G hereto annexed; and in making such statement I have given said Lippincott credit for all items and allowances claimed by him excepting commissions and the item of September 12, 1871, 'Judgment, Jackson, $160.00,' in his account filed in the orphans' court of Burlington county which I find was a needless disbursement, and not made for the benefit of the estate. And in further stating the account of the said Wallace Lippincott Individually with the decedent's estate I have charged him with the said sum of fourteen hundred and nineteen dollars and fifty cents, ($1,419.50,) received by him from the sale of lands of said estate as of the 1st day of April, 1875, and the further sum of one hundred and nine dollars and eighty-five cents, ($109.85,) as of the lastmentioned date, as the part of the consideration received by him from the Schwalber deed on December 5, 1888; and I have credited him with the sum of two hundred and one dollars and forty-two cents, being his proportional part of the said sum of five hundred and seventy-two dollars and seventy-four cents, allowed to the executors for lauds conveyed by them which did not belong to the decedent's estate; and I have also credited him with the sum of thirteen hundred and twenty-eight dollars and ninety-three cents on this account, out of the disbursements made by him, and contained in Schedule G, which balances the said account; and I do find and report that the said Wallace Lippincott is not indebted to the estate on his individual account,— all of which appears more particularly in Schedule H, hereto annexed. And I do further find and report that the said executors are jointly liable to the said estate in the further sum of five thousand nine hundred and ninety-two dollars and forty-eight cents, as will more fully appear from Schedule I, hereto annexed; and in stating the account of the three executors jointly I have charged them with the full amount of the inventory filed by them, ($8,525.50,) and with the value of the lands conveyed to Lippincott under the Barnes judgment, which I find to have been nine hundred and eighty-six dollars, which values are particularly set forth in Schedule 0, hereto annexed; and also with the value of the lands conveyed by them to Alexander Rhodes, and which are no longer held by said Rhodes or said Lippincott, which I find to have been three hundred and thirty-three dollars and fifty cents, which values are particularly set forth in Schedule J, hereto annexed; and also with the value of the lands conveyed by them to Charles Gaskill, which I find to have been two hundred and forty-nine dollars, which values are particularly set forth in Schedule K, hereto annexed; and with the value of the lots conveyed to Nathan S. Read under the foreclosure of the Leach mortgage, which 1 find to be seventeen hundred dollars; and with the value of the lots conveyed to Alfred P. E. Taylor, which I find to have been twenty dollars. And in ascertaining the values of said lands conveyed to Lippincott under the Barnes judgment, and by the said executors to Rhodes, Gasgill, and Taylor, I have taken the average of the values at times between 1870 and 1875, inclusive, as testified to by the different witnesses, adding interest from April 1, 1875, on the balance against the executors at that time; and in the case of the house and lot where the decedent lived, which was conveyed to Lippincott under the Barnes judgment, I have found the value thereof to have been five hundred dollars, and the value of the interest therein sold to Lippincott to have been four hundred dollars; and, as to the lands conveyed to Read under the foreclosure of the Leach mortgage, I have taken, as the value thereof, the price paid by the said Read to the sheriff at the foreclosure sale in May, 1889, which was but a short time after the executors parted with the said mortgage. And I have credited the said executors with all disbursements made by the said Wallace Lippincott over and above the part thereofcredited on his individual account, (Schedule H,) and with all the personalty included in said inventory, except the bond and mortgage of said Nathan S. Read, as having been taken and sold on executions against said decedent; and I have also credited them with the sum of four hundred and thirty-four dollars, as the loss or reduction from the inventory value to be allowed on said bond and mortgage. The several schedules hereinbefore referred to as hereto annexed and making part of this report are marked, respectively, from A to L, inclusive. All of which is respectfully submitted this 22d day of March, 1893.
"Carroll Robbins, "Master in Chancery of N. J."
"Now come the above-named complainants by their counsel, and except and object to the master's report as filed in the above case, this twenty-fourth day of March, in the year eighteen hundred and ninety-three. First exception: For that the master has erred in not certifying in said report the prices obtained by Lippincott upon the resale of lots obtained by' Lippincott under what is called in the pleadings the 'Barnes Judgment' Second exception: For that said master has erred in not certifying in said report the gross amount of moneys thus received by Lippincott under the resale of lots obtained by him under the Barnes judgment, and charging Lippincott in his individual account therewith. Third exception: For that said master has erred in not charging the said executors jointly with the consideration expressed in their deed to Henry R. Lewis, as referred to by said master in Schedule D, annexed to his report. Fourth exception: For that said master erred in certifying in said report that said Lippincott had made disbursements to the amount of eighty-two hundred and fifty-three dollars and seventy-one cents, as detailed in Schedule D, annexed to said report. Fifth exception: For that said master erred in crediting Lippincott, in Schedule G of his report, with the sum of thirteen hundred and twenty-eight dollars and ninety-three cents, and in certifying in said report that said Lippincott is not indebted to said estate on his individual account, as set forth in Schedule H, annexed to said report. Sixth exception: For that said master erred in certifying in said report that said executors are chargeable with the value of the lands conveyed to Lippincott under the Barnes judgment, whereas the testimony shows that said Lippincott individually received all the profits on a resale of said lands to divers persons, as set forth in the testimony. Seventh exception: For that said master erred in charging said executors in said report with the lands conveyed by them to Alexander Rhodes, whereas the testimony shows that Lippincott received all the profits on this transaction by sales of these lots to divers persons, as set forth in said testimony. Eighth exception: For that said master erred in reporting that the value of the lands obtained by Lippincott under the Barnes judgment was only nine hundred and eighty-six dollars, whereas the testimony shows that Lippincott received a much larger sum for the resale of these said lots. Ninth exception: For that said master erred in reporting the value of the lots conveyed by the executors to Rhodes at three hundred and thirty-three dollars and fifty cents, whereas the testimony shows that Lippincott received a much larger sum of money from the resale of these lots, and by reference to his own testimony he admitted that he received over one thousand dollars therefor. Tenth exception: For that said master erred in not reporting that Read acquired, under the foreclosure of what is called in the pleadings the 'Leach Mortgage,' the legal title to 518 lots, and that these lots, with the exception of thirty-seven, are still in the possession and under the control of said Read. Eleventh exception: For that said master erred in not finding the value of these thirty-seven lots reconveyed by Read as aforesaid, and charging the same against the said Read in his individual account. Twelfth exception: For that the said master erred in reporting the value of said lots at seventeen hundred dollars, and in not reporting a reconveyance of said lands should be made by said Read to the complainants, or that he held the same for the said complainants; said complainants and exceptants hereby praying the benefit and advantage of amending the decree in this cause in this behalf if it shall be necessary so to do. Thirteenth exception: For that the said master erred in measuring the values of the lots conveyed by the executors to Rhodes, Lewis, Gaskill, Taylor, and other grantees, as shown by the testimony, subsequently reconveyed to Read and Lippincott individually, as testified to by the different witnesses, as reported by said master as being the average of the values at the times between 1870 and 1875, inclusive, whereas said master ought to have certified the considerations received by said Read and Lippincott individually, as appears by their deeds in evidence. Fourteenth exception: For that the said master erred in not finding that the 109 lots on the plan of the Riverside Cottage Company, comprised in the mortgage from Burke to decedent, and alleged to have been assigned by decedent to Read, were merged by the deed of Burke to the executors, of which said Read was one, and in not finding that said Read was estopped from claiming title thereto, and that the equitable title thereof is now in the complainants. Fifteenth exception: For that the said master erred in certifying in Schedule F. annexed to his report, that Read should be charged with the sum of twenty-six hundred and seventeen dollars, being moneys received from sale of lots of the estate prior to April 1, 1875, whereas said master ought to have certified the consideration received by Read,as recited in his deeds to divers grantees, and charging him therewith; as also in not reporting the sales made by Read individually, subsequent to April 1, 1875, and not charging him in his individual account with the proceeds thereof, as recited in his individual deeds to divers grantees. Sixteenth exception: For that the said master erred in not charging said Read with the interest on the consideration recited in his individual deeds from April 1, 1875. Seventeenth exception: For that the said master erred in crediting said Read in his individual account, being Schedule F, annexed to said report, with the following sums: $130, $230, $110, $25, and $125.49,—being expenses for searching the records, incidental items in connection with same, and interest on same,— whereas said master ought to have certified that said expenses were not for the benefit of the estate, but were incurred by Read for his own ulterior purposes in predicating insolvency proceedings in the orphans' court of Burlington county. Eighteenth exception: For that said master erred in crediting the said Lippincott in his individual account, being Schedule G, annexed to his said report, with the sum of $568.19, and allowance of interest thereon from April 1, 1875, for cash paid to Joseph T. Rowand, whereas said master ought to have certified that there was no evidence before him of any indebtedness to said Rowand by the estate; and for the same reason complainants except to the items as credits to said Lippincott in said Schedule G, as follows: 'Samuel Jones, $104.50;' 'Post office, $455.' Nineteenth exception: For that said master erred in crediting said Lippincott in his individual account, in said Schedule G, with the items of 'Judgment, Newell Fay and Van Arsdale, $1,265,' and $1,591 for the same, whereas that said master ought to have certified, as appears from the evidence, that said judgment of Van Arsdale was never satisfied of record, and that the judgment of Newell Fay, and the judgment of C. A. Pulte, $831.31, as credited said Lippincott in said schedule, were one and the same, and, as appears by the testimony, no such sums were ever paid by said Lippincott, or any other of the executors. Twentieth exception: For that the said master erred in crediting said Lippincott in said schedule with the item of 'Elizabeth Toy, $164.45,' whereas said master ought to have certified that there was no evidence of any indebtedness of the estate to said Elizabeth Toy. Twenty-First exception: For that said master erred in allowing interest on these excepted items from April 1, 1875. Twenty-Second exception: For that the said master erred in reporting that Henry Bechtold, one of the complainants, and one of the executors of the estate of Samuel Bechtold, Jr., deceased, was equally and jointly liable, as set out in Schedule I, with Nathan S. Read and Wallace Lippincott, the other executors of said estate, for the sum of fifty-nine hundred and ninety-two dollars and forty-eight cents, whereas said master should have reported entire nonliability on the part of the said Henry Bechtold for said sum, or any part thereof, as the said Henry Bechtold was not an acting executor of said estate, and never received any of said moneys, or any part thereof; said complainants and exceptants hereby praying the benefit and advantage of amending the decree in this cause in this behalf, if it shall be necessary so to do. Twenty-Third exception: For that the said master erred in crediting said Lippincott in his individual account, in Schedule G, with the items under date of September 12, 1870, 'Judgment, Barnes, $888.29,' with allowance of interest thereon from April 1, 1875, whereas the said master ought to have certified, as appears from the deed from the sheriff to Lippincott, that he paid therefor the sum of six hundred dollars, and that the items of fifty dollars paid said sheriff, and Merritt forty dollars, and 'Hugg, $45,' were, as appears by the evidence, incurred by Lippincott for his own benefit, in an arrangement whereby he secured them under the Barnes judgment so conveyed to him by the sheriff, and this allowance and the costs of citation for a failure to file his account was not properly chargeable against the estate, on the grounds that he and the other executors of the estate were in funds sufficient to pay the Barnes judgment. Twenty-Fourth exception: For that the said master erred in crediting the said Read in his individual account, Schedule F, with the amount of the widow's exemption, to wit, $200, and allowance of interest thereon from April 1, 1875, whereas said master ought to have certified, as appears from the evidence and testimony, that the widow's exemption was allowed and set apart for her under the Newell Fay execution. Twenty-Fifth exception: For that the said master erred in not charging the said Lippincott and Read in their individual accounts with the proceeds of sales of the lands conveyed by the executors to Babbington and Hartley, respectively, and subsequently reconveyed by Babbington and Hartley to Lippincott and Catharine Bechtold, respectively, without consideration, the said Catharine Bechtold subsequently conveying them to Mary A. Read; and in not charging the said Read and Lippincott with the amounts recited in their deeds to divers grantees. Twenty-Sixth exception: For that the said master erred in not certifying to the court the conveyances made by Lippincott of lots acquired by him by, through, or under the decedent; and in not charging said Lippincott in his individual account with the proceeds thereof, recited in the deeds from said Lippincott to divers grantees. Twenty-Seventh exception: For that the master erred in assuming that the decree of this honorable court confined him in determining the value of said lands obtained by Read and Lippincott, individually, by, through, or under theestate, to the general values, as was detailed by the witnesses, that governed prior to April 1, 1875, whereas it is respectfully submitted that, these defendants Read and Lippincott having acquired these lands by reason of their fiduciary capacity, and in gross fraud of the rights of the complainants, the rule of equity that executors cannot make profit out of the estate would apply, and it is respectfully submitted that the decree of this court is in harmony with this rule; but complainants especially pray that, if said decree shall appear in any way to be ambiguous on this point, they may have leave to amend said decree, and that by an order of this court the said defendants Read and Lippincott be charged with the proceeds of said sales of said lots, as recited in their individual conveyances to their divers grantees."
Wm. C. Mayne, for exceptants.
Chas. E. Hendrickson, for defendant Lippincott Walter A. Barrows, for defendant Read.
BIRD, V. C. This case is now before me on exceptions to the master's report. I think the differences between the parties in this case have been occasioned chiefly by a careless expression in the opinion, or a misapplication of it in the decree. This makes it plain that, however well taken the exceptions may be to the master's report upon matters of principle, the master is not to blame for the chief exceptions, unless it be with reference to the $569 item, for it cannot be said that upon two principal points he has not followed the decree as it may be fairly interpreted. To overcome this condition I have found it necessary to amend the decree in accordance with the views which I intended to express in the decree, as well as in my opinion. In my judgment, upon the two principal questions presented by the exceptions, there is not the slightest room for doubt as to what the law is in New Jersey. I think the executors Nathan S. Read and Wallace Lippincott should each be charged with all of the personal estate received by him, and with all moneys received by him for lands sold, which had been conveyed to them, or either of them, directly or indirectly, and which he afterwards sold to bona fide purchasers for a valuable consideration; and the amount with which he should be charged is the consideration expressed in the deed, unless it be made to appear very clearly that some other sum was the sum actually received, and should also be charged with interest upon the sum so received, from the date of such conveyance. I think the exception to the report, so far as it charges the executors, or either of them, with the actual price paid by them, or either of them, for lands conveyed to them, being lots known as the "Burke Lots," or lands conveyed under the Leach mortgage or under the Barnes judgment, is well taken. Those lands, and all others so received by them, whether from sales made by the sheriff or by any other person, the title to which they, or either of them, still holds, they hold in trust for the devisees and legatees named in the will of the testator. The master has made a mis take, in point of law and fact, in charging all of the executors with the proceeds of the sale of real estate. Henry Bechtold, one of the executors, should not have been included in that charge. This, like the former error, is manifestly chargeable to the phraseology of the decree. The true principle upon which the Read mortgage should have been charged up against the executors is to charge those who actually received the $5,000, and to charge them jointly with the $2,400, less the $280 paid as commissions. This act was the joint act of all three.
Passing from these general observations, we will, for the sake of certainty, look at each exception, although in doing so we will perhaps indulge in more or less repetition. We trust, however, we shall be understood. Looking at the first exception in the face of the decree as it now stands amended, there can probably be no reasonable ground of dispute but that the exception is well taken. The title to the lands which was conveyed under the Barnes judgment was conveyed to Lippincott. He has sold said lands, or part of them, since, and received the consideration therefor. He is therefore chargeable with the consideration money, and the interest thereon from the date of the conveyance. The title to all these lands which had not been conveyed by him he holds in trust under the will of the testator. The second exception has been spoken of in what has been said as to the first Exception 3: As I understand the facts of the case, I think that Lippincott and Read should be jointly charged with the proceeds of the sale to Henry R. Lewis. This is doing no injustice to them, since in this and in every other case where a similar question arises they can settle the claims of either against the other between themselves. The exception 4, which refers to Schedule D, I think must be a mistake in the reference. The only figures which answer to the figures referred to are to be found in Schedule G, which is spoken of next hereafter. I think exception 4 ought to be allowed. I can give no interpretation to the testimony which sustains certain items in Schedule G. The claims for various payments upon judgments does not, to the extent therein indicated, bear scrutiny. The allowances prayed by Mr. Lippincott for judgments paid seem to me to be exaggerated, when the record evidence and the oral testimony are considerd. H claims as follows:
| May 7, 1870. Judgment, Newell Fay & Van Arsdale | $1,265 00 |
| " 10, " Judgment, Newall Fay & Van Arsdale | 1,591 00 |
| Aug. 10, " Cash paid, judgment, C. A. Pulte | 831 31 |
| Sep. 12 " Judgment, Barnes | 888 29 |
| The total of these alleged payments being | $4,575 66 |
The reason why I think this is an exaggerated statement, and must be a mistaken one, is: First, taking the records of these judgments, and making all due allowances for interest from the date of the record until the time of the payment, and the whole amount is only $3,512.71; and, second, according to the testimony of himself, (Read,) certainly paid the Fay and Snyder judgments, in which I think that Lippincott fairly concurs, and the same conclusion is necessarily reached. It is true that Read does not. speak with certainty as to the amounts of the judgments, but he speaks with decision and confidence as to the identical judgments which he discharged, and took assignment of in the name of his wife, which judgments he afterwards had canceled of record. He says, "Can't tell how I settled. I know the amount that I paid, because I received a check from Mr. Lippincott for it, —for two judgments." And when his attention is again called to it, and he is asked if he settled the "Van Arsdale and Fay judgment, he answers by saying, "I settled the Fay and Snyder judgments." He says, "I think the Snyder judgment was $700." He says, "I cannot tell what I paid for the two judgments;" and when asked, "Which judgments?" he answers, "The Newell Fay and Frederick Snyder. Q. You settled the Newell Fay judgment? A. Yes, sir. Q. And you settled the judgment held by a man by the name of Snyder? A. Yes, sir. Q. What did you pay? A. $1,265. Q. What was the amount of the Snyder judgment? A. I can't remember; it is on the record. He says it was recovered at Blount Holly." Again: "Q. You settled the Van Arsdale judgment? A. No; I did not. Q. You said you did? A. No, sir; the Fay and the Snyder judgments. Q. I understood you to say that is the same man? A. No, sir; Newell Fay is one, and Snyder was another. Q. You settled the Fay and Snyder judgments? A. Yes, sir; and both were recovered in Burlington county." He says he thinks the Van Arsdale judgment was paid in full by Mr. Lippincott afterwards. He says he paid the Newell Fay judgment to Mr. Fay. When asked if he paid by check, he says he thinks not, but partly in cash. He says, again, Mr. Lippincott paid the Van Arsdale judgment, and gave a check of $1,100 for the Fay and Snyder judgment. He undoubtedly meant that Mr. Lippincott gave this check in payment of the Van Arsdale judgment, which was. as appears above, $1,106, principal and interest. He says Newell Fay came to him about his judgment, and a lawyer of Philadelphia, by the name of Pulte, had the Snyder judgment. Mr. Lippincott gave him a check to pay that judgment. Read says that Fay claimed that he had two judgments, but the official record to which he refers shows that there was but one judgment in favor of Newell Fay. He says: "I cannot tell how much I paid. I know there were heavy interests and costs, and that those were the only judgments I paid." Hence, supposing that Mr. Lippincott advanced all the money for the four judgments, and that Read, with Lippincott's money, paid two,—that is, the Fay and Snyder judgments—the money actually employed for that purpose, independently of what was realized by the sheriff upon the sale of good* under the Fay judgment, would be as follows:
| The amount of the Van Arsdale judgment. | $1,106 00 |
| The amount of the Fay and Snyder judgment | 1,265 00 |
| And the amount of the Barnes judgment.. | 888 31 |
| Making in all | $3,250 31 |
It is true Read thinks that in discharging the Fay and Snyder judgments he used some cash, but he is not certain as to that, and produces no vouchers in proof of it. When he received the $1,265, the amount due upon the two judgments, including all the interest, was $1,559.14. The sheriff had, prior to that, sold the goods of the testator under the Fay judgment, from which he realized $196, which left actually due $1,363.14, so that, if Mr. Read advanced any cash in procuring the assignment of these judgments, it was less than $100. But whether he did or not is so uncertain that the court cannot allow these accountants credit for it, especially when it is established that these executors were once offered two of these judgments for several hundred dollars less than was actually due upon them. There is no rule or practice that would justify such a credit. It is altogether probable that he procured the assignments of these judgments for $1,265, and that there appearing to be something due upon them was the reason for taking an assignment. It appears, therefore, that Mr. Lippincott claims a credit of $4,575.60, while proof only shows actual payments of $3,259.31; showing a claim for allowance, by way of payment on these judgments over actual disbursements, $1,316.29. I can see no possibility of swelling these judgments, considering the amounts which they paid, according to the proofs, to the sum of $3,500, to say nothing about $4,575.60. The only item that may be added to increase it at all is that of sheriff's fees on the Van Arsdale judgment. Read says there was an execution issued upon that judgment, and there is a reference to Exhibit E 14 as an execution, which exhibit is not among the papers handed to me. As there is no proof of any sale under this judgment and execution, the costs could not have exceeded $50, which was about the amount of the costs on the Fay execution, in which there was a sale. Adding this amount to the $3,259.31, and we have $3,309.31. The difference between this amount and $4,575.60 is $1,266.29. I think the judgments with which the master has credited Lippincott have been swollen by this amount, in excess of the amount actuallypaid by him, or by both him and Read. I think it will appear, when the account comes to be restated in accordance with the decree as it stands amended, that the fifth exception will appear to have been well taken.
Exception 6 should be allowed, because Lippincott took the title to the lands under the Barnes judgment, and as to all sales made by him to bona fide purchasers he is responsible to the estate for the consideration received, and must account therefor; and as to all those lands not so sold he holds in trust for the devisees and legatees under the will. The last observations are equally applicable to exception 7, as against Mr. Lippincott. The observations respecting exception 6 show conclusively that exceptions 8 and 9 are well taken. The price paid for land under such circumstances, by a person acting in the capacity of trustee, is no criterion as to his liability in accounting, especially in case he has made large profits therefrom. What has been said as to the title and the character in which Lippincott holds lands under the Barnes judgment is applicable to the tenth exception. Mr. Read undoubtedly holds the title to the lands which he acquired under the Leach mortgage as trustee for the heirs and devisees, unless he has conveyed the lands, or some portions of them, to bona fide purchasers. From what has been said above, it is manifest that exceptions 11 and 12 should be sustained. Exception 13 is controlled by the same principles in favor of the exceptions. Exception 14 ought to stand. From what has been said, the fifteenth exception ought to stand. The principle which moves a court of equity in such cases sustains the sixteenth exception. Mr. Read is certainly accountable for interest upon moneys which he received, —the proceeds of trust property. Under the admissions made by the counsel for the complainants before the master, I do not think that exception 17 can be sustained. According to the admission, the work was done by him as executor, and in the interests of the estate. It is very clear, also, from the nature of the work done, that it was done in and about the property or assets of the estate. The very property which was surveyed and mapped, and the title to which was searched for, is now claimed by the complainants at the hands of the defendants as trustees. The maps, surveys, and searches are the property of the estate, and belong to the devisees and legatees. The work which was so done will unquestionably inure to the benefit of the real owners of the land. There was no effort made to show that there was no necessity for the work, nor that it was improperly or unskillfully done, or that the amount paid was in any degree excessive. There seems to be good reason for sustaining the eighteenth exception. The testimony respecting the $568.19 is very meager, and there are so many strong presumptions against it that 1 do not feel myself warranted in concluding that the master is right. In the first place, on the very day that the check for this amount bears date, February 2, 1870, he has a credit in the account presented to the orphans' court for $75 paid to Rowand. Now, the presumption is that, if he paid Rowand this larger sum on account of the estate, he would have had some voucher or memoranda thereof, as he had for the $75. The effect of his testimony, as well as that of Mr. Merritt, is that he had an account book with an account of these payments and receipts pasted therein as vouchers for them. I do not see how he would have preserved the one against the estate, and not the other; and I do not see why he would take the voucher for the smaller sum, and not for the one more than seven times as large, in case both were on account of the estate. Another presumption, very strong indeed, arises from the fact that he stated his account in 1875, in which he must have had his $75 item. Taking the testimony of Mr. Merritt and of Lippincott himself, and with the name of Rowand and with the $75 item before him, I can give no credit to the idea that he had forgotten so large an item as the $508.19. But what is still stronger in this direction is the fact that this item should escape his attention for the next 10 years. In 1885 he states his account again. Then he had all his vouchers still. Fully 15 years had elapsed since this check was given. He had the $75 item and Rowand's name on his account, and among his vouchers he had this check, he had the bank account against which the check was drawn, and the bank book to remind him of this transaction but it never occurs to his mind until after the lapse of 20 years. I cannot but conclude that this check must have been given upon some other account. There is no proof, as in the case of the judgments, to show that Samuel A. Bechtold, Jr., was indebted to Rowand in this sum at the time of his death. Although the vouchers respecting the payments of the judgments were destroyed or lost, yet the records and other evidence produced establish the fact that the testator was indebted to the parties named upon judgments obtained against him in his lifetime. The nineteenth exception is well taken in part, as appears by what has already been said with respect to exception 4. I cannot consent to the twentieth exception. I base my conclusions as to this item upon the testimony of Mr. Merritt He says that he is satisfied that there were receipts for all the items down to that of Thornton's, which follows this of Elizabeth Toy. I am aware that this same observation may be claimed to favor payments respecting judgments; but my criticism respecting judgments does not go to the fact that there were no payments, but to that that, taking all of the judgments, the amount actuallydue upon them, including costs, interests, and sheriff fees, does not make the sum total reach the amount claimed. If there were vouchers for those items, it is very clear that the item for $1,591 must have included something else besides a judgment. Of course, so far as the exceptions have been sustained, and the amounts credited have been reduced, exception 21 must also be sustained. The interest will be reduced by the amount which the principal is reduced. As the decree now stands, exception 22 must prevail, as to all the items enumerated in Schedule I, unless the liability of the executors with repect to the $2,400, the amount paid to Weeks on the Read mortgage, be considered as included in Schedule I, and as to that my judgment is that they are jointly liable. With none of these matters except the Read judgment and the taking of the inventory did Henry Bechtold have anything to do. All of the property inventoried passed immediately into the hands, and under the control, of Read and Lippincott. Five thousand dollars of the money passed immediately into the hands of Lippincott, and Lippincott disbursed it. As to the twenty-third exception, my judgment is that Lippincott was entitled to credit for the whole amount thereof, but as to the amounts paid Hugg and the sheriff I can discover no proof that justifies these payments. That judgment and interest, at the time of payment, was about $847. The whole amount credited to Lippincott is $888, which probably includes the sheriff's charges. There seems to be no method of calculation by which $888 can be made to appear to have been due, except by including costs of the sheriff. As to Hugg, he was a counselor at law, adversely interested, and, if Mr. Lippincott paid him at all, it must have been in order to secure the title to these lands in his own name. Exception 24 is well taken, for the reason given. I think, upon the principles above stated, exception 25 should be sustained. Lippincott and Read certainly ought to account for the moneys they received for the lands referred to. They made the sales for a consideration. They sold lands which they held in trust, and they ought to account, at least, for the moneys which they received, with interest. Exception 26 has in effect been spoken of heretofore. Clearly, all the lands which Lippincott took title to as above indicated, and which he still holds, he holds in trust, and the lands which he so holds should be reported to the court, and the proceeds of the lands which he has sold to bona fide purchasers, he should account for. Exception 27 has already been fully covered by what has been said respecting lands sold by Read and Lippincott jointly, or by what has been sold by them individually, as well as what they may hold in their joint names or in their individual names.
I have taken an unusual amount of pains with this case, not only with the view of satisfying my own mind as to the proper discharge of my duty, but also in the hope that I might be able to present the case in such a light as would satisfy all the parties as to their legal rights and obligations, and, being so satisfied, to make an adjustment without further controversy. From the beginning of this case I have recognized the difficulties under which the executors have labored. Not having been skilled in the performance of a trust of this nature, they did not fully appreciate or consider the importance of preserving exact statements or accounts of the transactions. I say fully, because they—Mr. Read and Mr. Lippincott—did keep some accounts, but in a loose or careless way. Mr. Lippincott has been so unfortunate as to lose or have destroyed what accounts or vouchers he kept Because of this misfortune he ought not to suffer, and it has been my aim, from the first, to protect him against this loss to the utmost, where there was any reasonable justification in so doing. In doing this I have not forgotten that the devisees and legatees ought not to be charged with his misfortune. I have only aimed at giving him credit for every payment that there has been any foundation for, except his own mere surmise or impression or belief. A careful reading of Mr. Lippincott's testimony will satisfy every one that his recollection is not to be relied upon in giving credits for disbursements after the lapse of so many years. He is uncertain as to almost every important transaction, where there is not something besides his mere recollection to guide him. If, after all, these executors, or any one of them, are or is conscious of suffering loss in the settlement of this estate, I can only say it is solely attributable to their or his failure to promptly perform the obligations which the law and their oath, when they entered upon the duties of the office, imposed upon them. Had they promptly proceeded, at the expiration of the five years, to make a complete and final settlement of this estate, as required by the rules and practice of the court, they would have been saved all this litigation, anxiety, sad experience, and supposed loss. At such times, and after the lapse of so many years, the court can only admit what is reasonably probable, or what has been fairly established, and is bound to charge trustees with whatever is found in their hands, and with whatever plainly ought to be in their hands or possession. This is the rule which all men agree to, and which has prompted courts of equity from the beginning. Under the circumstances of this case, I think the costs of these exceptions ought to be paid out of the estate. I will advise an order in accordance with these views.