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Geiger's Appeal.

to declare this estate a fee in Sarah Geiger, it would be necessary to expunge the concluding clause from the will. This the law foibids. Measuring the quantity of estate under the recognized rules of law governing the construction of wills, there passed to Sarah Geiger under this will only a life estate.

There being an estate in remainder, it rested at testator's death in his heirs, subject to the payment of his debts. A conversion being brought in the will, it did not descend as real estate but money to be paid at the widow's death.

The duties of the executors under his will were plain. Until a sale was effected for the payment of debts, the life tenant was bound to keep down the interest on incumbrances out of the rents and the profits. As against non-assenting remainder-inen, such interest could be discharged out of their estate. In converting the property under the power in the will for the payment of debts during the widow's life, after discharging such debts it becomes equally their duty to invest the balance according to law and pay the income to the life tenant, holding the corpus to await final distribution. It became a legal duty of Albert Geiger upon the sale of this real estate to see that the principal was preserved. Ordinarily, the law does not permit the recipient of the income of a fund to have the possession and control of the fund without entering security in favor of the remainder-men. Therefore, where joint executors, one of them having a life interest in the fund, sell real estate, it becomes at least the ordinary duty of the other to take proper measure for the preservation of the corpus. He can not acquit himself by passing over to his coexecutors, having the life interest.

In this case the auditor does not convict Albert Geiger of personal intentional wrong. His position is rather to be viewed as one of misfortune. His mother and co-executor was seemingly a strongminded woman. She put her own interpretation upon this will, and considered herself as entitled to the whole estate. Albert too willingly gave way to her, as the law is now invoked, and this, like all other cases, must be decided by the rules of law. Whatever of hardship Albert Geiger must suffer logically results in negligently misapprehending the character of his obligation when he accepted the trust. It seems no advice of counsel was sought until June, 1868, and enough occurred then to warn Albert of the future. Judge Sassaman, who prepared the deed to the 59-acre tract on June 15,

Geiger's Appeal.

1868, certainly left all parties understand his opinion of the estate,

hich passes under the will to Sarah Geiger. Unfortunately for Albert Geiger, Sassaman that same year was elevated to the bench, and the parties went on then in their own old methods without further legal assistance. The sale to Moothard of the 14-acre tract in 1859 by Sarah Geiger as devisee in fee, certainly under this will conferred a poor title on Moothard. With the title he got, however, we have nothing to do. The transaction will be treated as though Moothard got a good title from the execútors.

Can Albert Geiger be held for the purchase money? He did not join in the conveyance, but he did join in the receipt. He was, therefore, upon the written evidence in the cause, cognizant of the transaction. Albert contends that the money was paid into the hands of Sarah Geiger, and that he got none of it. He established this only by his own testimony. But he was not a competent witness to prove such a fact. An accountant is not a competent witness to prove funds in the hands of his deceased executrix: Heydrick's Executors' Appeal, 1 Montg. L. R., 86.

Under this will he was bound to see after the application and protection of this purchase money. Moothard paid $1560. Of this $900 was paid to Brendlinger, who satisfied his judgment, leaving $660 balance, and this Albert is responsible for.

The accountant's claim for $120 commissions can not be allowed. Commissions of trustees are not a question of per centages but of compensation for labor and responsibility: Montgomery's Appeal, 5 Nor., 230. Where neither the one has been performed nor the other incurred there is nothing to be compensated: Robinson’s Estate, 5 Phila., 99; McCausland's Appeal, 2 Wr., 470. In this estate the accountant has earned no compensation. Although in no respect guilty of any fraud, he has never performed in an ordinary manner the duties devolved by law upon him. If he was insolvent now, the heirs of Samuel Geiger would lose every cent of

He is compelled by citation to file his account, and files such a one as has caused a long, tedious and expensive audit to ascertain that which it was his legal duty to have kept clear and simple. To reward an executor in such a case would be a premium upon looseness and carelessness in the performance and discharge of sacred duties and against the policy of the law. A trustee at least is bound to use ordinary care and prudence in the charge he under

this money.

Geiger's Appeal.

takes. This subject is clearly illustrated in the following cases: Seiger's Estate, 3 W. N. C., 368; Sharp's Estate, 2 Phila., 280; Sauter's Estate, 6 W. N. C., 95.

Neither can the claim for $100 counsel fees for services to accountant be allowed. These were services on his own account in defence of his conduct throughout the administration of this estate. He must, therefore, pay for them out of his individual pocket.

Upon exceptions filed the report of the auditor was confirmed by the court June 4, 1888, in an opinion by Swartz, P. J. This action of the court was assigned for error.

A. S. Sassaman, Esq., for appellant.
Bickel & Hobson, Esqs., for appellee.

The opinion of the Supreme Court was delivered February 18, 1889.

Per Curiam.-The first assignment raises the question whether, under the will of Samuel Geiger, his widow, Sarah Geiger, took a fee or only a life estate. This is the important question in the case, though one entirely free from difficulty. The first clause in the will is as absolute a devise to the widow as could well be made; and the provision in the second clause, authorizing the executors to sell the real estate for the payment of debts, does not in any degree curtail the previous devise. It merely authorizes the executors to do what the law authorized them to do. Then follows the provision: “Also, I direct that if the executors see proper to sell any of the property, real or personal, to pay debts, they may do so. Also, I do direct, after the death of my wife the property, both real and personal, shall and must be sold and all my just debts paid, and the remainder of the money to be equally shared amongst my children.” That this cuts the fee down to an estate for life is too plain for argument. Being the later clause in the will it must prevail. With this point established, we find no error in the rulings of the Orphans' Court upon the account of Albert Geiger, the surviving executor of Samuel Geiger. It was perhaps his misfortune that he yielded too readily to the demands of the widow, who was also his mother and co-executor. She appears to have been an imperious woman, and thought she owned the estate in fee. But those who assume trusts must conform to the law. The executor charges himself with $2000, the purchase money of certain real estate sold to Michael E. Geiger,

Jones vs. Hughes.

This property

but which was in realty a sale to the accountant. after several years was resold by the accountant at a considerable advance. The court below did not surcharge him with this difference, in view of the fact that the increase in price was due to the improvements which he had put upon the property, and that in the matter of the sale he had acted in good faith. The book account of $179.69, which the accountant charges against his father's estate, was properly disallowed for very satisfactory reasons given by the auditor. He was the only witness to prove entries, and the claim itself was ancient, running back to 1847. The duty of the life tenant to keep down interest or incumbrances is so well settled that authority upon this point need not be cited. Hence the credits claimed for this purpose were properly rejected. As to the refusal of the court to allow commissions, it is sufficient to say that compensation is given only to the faithful steward. This accountant may not have intended any wrong; his derelictions may have been the result of ignorance. But we can not excuse him on that account and place him on the same plane with those who perform their duties intelligently. He appears to have used the money of the estate as his own; kept no separate bank account; did not produce vouchers for many of his items of credit; and, as the learned auditor finds, “files such an account as has caused a long, tedious and expensive audit to ascertain that which it was his legal duty to have kept clear and simple.” Whether such consequences are produced by knavery or stupidity, the results are the same to the parties whose money is thus wasted. We find no error in the record.

The decree is affirmed and the appeal is dismissed

at the costs of the appellant.

JONES vs. HUGHES.
Where a title is once acquired by twenty-one years adverse possession, the mere fact that

the fences are removed will not of itself revest the title in the former owner without
something more to show that he has again resumed possession.
Error to the Court of Common Pleas of Montgomery county.

The opinion of the court below, as delivered by WEAND, J., is found in full in the case of Hughes vs. Jones, 4 Monts. L. R., 215.

Chas. Hunsicker, Esq., for plaintiff in error.

Road in Franconia Township.
Larzelere & Gibson, Esqs., for defendant in error.

The opinion of the Supreme Court was delivered February II, 1889.

PER CURIAM.—When a man has maintained adverse and hostile possession to land for twenty-one years he acquires an indefeasible title, as good as any known to the law, though perhaps not as satisfactory or convenient. He need no longer "keep his flag flying"; it has done its work, and he may haul it down. It was not error, therefore, to decline the defendant's third point and to instruct the jury that “if Mr. Hughes had acquired title by twentyone years adverse possession, the mere fact that he had set back his fence would not of itself vest a title against him in Mr. Jones.” It requires no argument to show that when a man has acquired title to a strip of ground, the mere fact of his setting back his fence for his own convenience can not affect his right and vest the title to the land in another. Nor was it error to refuse to instruct the jury that “the evidence to prove the bar of the statute of limitations must be free from doubt or the parties are to be remitter to their legal right.” The question of the bar of the statute is to be decided by the weight of the evidence, as in most other questions of fact in civil causes. The error alleged in the thirteenth assignment of error was cured by the action of the court below upon the motion for a new trial. The verdict was reduced to its proper amount and the plaintiff filed a remitter for the excess. There is nothing in the other assignments to require comment. The charge was fair, accurate and satisfactory.

Judgment affirmed.

Court of Quarter Sessions of Montgomery County.

ROAD IN FRANCONIA TOWNSHIP.

A public road can not be laid out in part longitudinally over a turnpike road of greater

width than the new road. Roads in villages, that are part of a system of streets, should conform as nearly as possi

sible to the general plan and avoid unnecessary angles.
EXCEPTIONS to report of viewers.
Wm. F. Dannehower, Esq., for exceptions.

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