The opinion of the Court was delivered by
Rogers, J.
On the appeal from the Orphans’ Court, the attention of this Court has been particularly directed to the second exception, the first having been abandoned by the counsel. This exception refers to the allowance of the sum of $1,055 67 cents with the interest. Thomas Savery having settled his administration account on the estate of George Aston, a balance of $1,537 72 was decreed in his favour. No appeal was taken [239] from this decree, and it became a debt owing by the estate of Aston, to the accounting executor; and on his death was assets in the hands of his administrator. The only way in which it can come properly into the administration account of the surviving executor of Aston’s estate, is on the footing of a debt due by the estate, which had been paid or otherwise discharged or satisfied in whole or in part. If the debt had been paid by him, he would be entitled to a credit for the payment; and this would seem to be admitted. Or if the administrator of Savery, the deceased executor,, has discharged the estate, or otherwise admitted satisfaction of the, claim, it is the same thing, so far as the representatives of Aston’s estate are interested. The administrator of Collins, it is true, has not actually paid the money to the administrator of Savery, yet the latter is willing to admit, that he has received part payment or satisfaction of the debt to the amount of f1,055 67 cents. Thomas Stewardson, who was the administrator of Thomas Savery, was examined before the auditors, and testified, that the estate of Zac-cheus Collins, was entitled to receive out of the balance appearing to be due to Thomas Savery’s estate $1,055 67 cents; and that in the lifetime of Zac'cheus Collins and Thomas Savery, an agreement was made between them, by which Collins was to. receive two-fifths of the whole amount of commissions that should be charged by Savery. He further stated, that if it was deemed necessary, he would endorse, at the foot of the account filed by him, a declaration, that of the balance due, Savery was only entitled to four hundred and eigthy-two dollars and five cents, and Collins to one thousand and fifty-five dollars and sixty-seven cents. After such an acknowledgment, and such a declaration, and particularly if followed by the endorsement, which the administrator of Savery offered to make at the foot of the account, it is difficult to perceive the injury which by possibility can be done, by permitting it to stand as a charge against the estate, in the administration account of' the surviving executor. By the former decree, the estate was fixed for the amount decreed; and all that can be reasonably required, is, that the estate of Aston should be discharged from the payment of the debt ascertained by the former decree ; and whether this is done by an actual payment, in the form of the acknowledgment of satisfaction, as to those interested is perfectly immaterial. The only interest they have is, that they should be discharged from all claim on the part of the administrator of Savery; and it is obviously indifferent to them, to whom the money, for which the estate is bound, should be paid. If a suit should hereafter be brought to recover the debt, by the administrator of Savery, it is plain that he would be estopped by his admission and express consent, that this should be credited to the administrator of Collins. But it is contended, that the agreement between Collins and Savery, is against the policy of the law. All the terms of the agreement are set out; and that it was, (as is sup[240] posed by the counsel,) an agreement that Savery was to do all the labour, and incur all the responsibility, does not certainly appear. Nay, as to part, the reverse was the fact, for the auditor reports, that much labour was expended by Zaccheus Collins, in his lifetime, for the benefit of the heirs of George Aston. This does not look like a disposition to avoid the responsibility; and the settlement of the account by Savery, is very inconclusive proof of it. There are many reasons which may render a separate account a prudent measure, without resorting to an imputation, of a design to avoid a proper degree of responsibility. Indeed, the counsel disclaims all intention to impute any corrupt understanding between these parties, who are acknowledged to have been gentlemen of the most respectable standing and character. Enough does not appear to raise the question, which has been so earnestly pressed by the counsel for the appellant. If this were a case between the executors themselves, and it appeared that one did all the work, and incurred all the responsibility, there would perhaps be but little difficulty in holding, that an agreement made for such purposes and objects, was without consideration and void. But in this matter, the estate has no interest; for the number of the executors makes no difference in the rate of commission. The Court makes an allowance for the trouble of doing the whole business. If the trouble of the executors has been unequal, as is generally the case, they should do justice among themselves by assigning to each a share of the whole allowance proportioned to his trouble ; or if they choose to divide it equally, it is their own concern, and they may settle it as they please. Walker’s Estate, (9 Serg. & Rawle, 226.) If hereafter a case should occur, where it was apparent that the agreement was made for the corrupt purpose of avoiding responsibility, it would be a fraud, and on that ground, we would allow no commission whatever. But that is not this case, for the commissions have been already allowed, on the confirmation of the former administration account, and are not now open for examination. Besides, fraud is not pretended; in which case only would we be justified in withholding a proper compensation for the services rendered the estate by the acting executor. If the principal is due, it follows as a consequence, that the interest is due also. Interest is an incident to a decree or judgment for money.
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The opinion of the Court was delivered by
Rogers, J.
On the appeal from the Orphans’ Court, the attention of this Court has been particularly directed to the second exception, the first having been abandoned by the counsel. This exception refers to the allowance of the sum of $1,055 67 cents with the interest. Thomas Savery having settled his administration account on the estate of George Aston, a balance of $1,537 72 was decreed in his favour. No appeal was taken [239] from this decree, and it became a debt owing by the estate of Aston, to the accounting executor; and on his death was assets in the hands of his administrator. The only way in which it can come properly into the administration account of the surviving executor of Aston’s estate, is on the footing of a debt due by the estate, which had been paid or otherwise discharged or satisfied in whole or in part. If the debt had been paid by him, he would be entitled to a credit for the payment; and this would seem to be admitted. Or if the administrator of Savery, the deceased executor,, has discharged the estate, or otherwise admitted satisfaction of the, claim, it is the same thing, so far as the representatives of Aston’s estate are interested. The administrator of Collins, it is true, has not actually paid the money to the administrator of Savery, yet the latter is willing to admit, that he has received part payment or satisfaction of the debt to the amount of f1,055 67 cents. Thomas Stewardson, who was the administrator of Thomas Savery, was examined before the auditors, and testified, that the estate of Zac-cheus Collins, was entitled to receive out of the balance appearing to be due to Thomas Savery’s estate $1,055 67 cents; and that in the lifetime of Zac'cheus Collins and Thomas Savery, an agreement was made between them, by which Collins was to. receive two-fifths of the whole amount of commissions that should be charged by Savery. He further stated, that if it was deemed necessary, he would endorse, at the foot of the account filed by him, a declaration, that of the balance due, Savery was only entitled to four hundred and eigthy-two dollars and five cents, and Collins to one thousand and fifty-five dollars and sixty-seven cents. After such an acknowledgment, and such a declaration, and particularly if followed by the endorsement, which the administrator of Savery offered to make at the foot of the account, it is difficult to perceive the injury which by possibility can be done, by permitting it to stand as a charge against the estate, in the administration account of' the surviving executor. By the former decree, the estate was fixed for the amount decreed; and all that can be reasonably required, is, that the estate of Aston should be discharged from the payment of the debt ascertained by the former decree ; and whether this is done by an actual payment, in the form of the acknowledgment of satisfaction, as to those interested is perfectly immaterial. The only interest they have is, that they should be discharged from all claim on the part of the administrator of Savery; and it is obviously indifferent to them, to whom the money, for which the estate is bound, should be paid. If a suit should hereafter be brought to recover the debt, by the administrator of Savery, it is plain that he would be estopped by his admission and express consent, that this should be credited to the administrator of Collins. But it is contended, that the agreement between Collins and Savery, is against the policy of the law. All the terms of the agreement are set out; and that it was, (as is sup[240] posed by the counsel,) an agreement that Savery was to do all the labour, and incur all the responsibility, does not certainly appear. Nay, as to part, the reverse was the fact, for the auditor reports, that much labour was expended by Zaccheus Collins, in his lifetime, for the benefit of the heirs of George Aston. This does not look like a disposition to avoid the responsibility; and the settlement of the account by Savery, is very inconclusive proof of it. There are many reasons which may render a separate account a prudent measure, without resorting to an imputation, of a design to avoid a proper degree of responsibility. Indeed, the counsel disclaims all intention to impute any corrupt understanding between these parties, who are acknowledged to have been gentlemen of the most respectable standing and character. Enough does not appear to raise the question, which has been so earnestly pressed by the counsel for the appellant. If this were a case between the executors themselves, and it appeared that one did all the work, and incurred all the responsibility, there would perhaps be but little difficulty in holding, that an agreement made for such purposes and objects, was without consideration and void. But in this matter, the estate has no interest; for the number of the executors makes no difference in the rate of commission. The Court makes an allowance for the trouble of doing the whole business. If the trouble of the executors has been unequal, as is generally the case, they should do justice among themselves by assigning to each a share of the whole allowance proportioned to his trouble ; or if they choose to divide it equally, it is their own concern, and they may settle it as they please. Walker’s Estate, (9 Serg. & Rawle, 226.) If hereafter a case should occur, where it was apparent that the agreement was made for the corrupt purpose of avoiding responsibility, it would be a fraud, and on that ground, we would allow no commission whatever. But that is not this case, for the commissions have been already allowed, on the confirmation of the former administration account, and are not now open for examination. Besides, fraud is not pretended; in which case only would we be justified in withholding a proper compensation for the services rendered the estate by the acting executor. If the principal is due, it follows as a consequence, that the interest is due also. Interest is an incident to a decree or judgment for money.
There is something in the third exception. It was ordered by the Orphans’ Court, that the accounts should be referred to an auditor, and with instructions to strike out of the accounts all items on either side, relating to the trust estates, or moneys, &c. This the auditor refused to do as to part, conceiving that they- did not partake of the character of trust estates. The testator devised a house and lot in Chambersburgh, and a lot of ground in Penn Township, to his executors, with directions to sell the property, and divide the proceeds among certain persons specifically named in the will. The auditor [241] was of the opinion, that this property belonged to the administration account, because an executor who disposes of real estate, does it in his capacity of executor, and receives the proceeds in the same character. It matters not, to the validity of the exception, that the residuary legatee, and the cestui que trust, are the same individual. It may be mere form here, but in many cases it is one of substance. The admixture of accounts, in' their nature different, is the prolific parent of error, and may sometimes be used as a cover to fraud. For this reason, it is essential to the furtherance of justice, that such accounts should be kept separate and distinct. This was a trust in which the testator set apart certain portions of his real estate, for certain purposes, from the general mass of his estate. If any other persons than the executors had been named, to execute the trust, it could form no part of the administration account, unless the property specifically devised was taken for the payment of the debts. It is a confidence reposed in them, that they will apply the property faith* fully, and according to the directions of the will) and it is not easy to see, why the appointment of the same persons as executors and trustees, should make any difference in their obligations or duties. It is not necessary to call them trustees, to invest them with this character, as this must depend upon the nature of the duties which they have to perform. They are entitled to compensation in a twofold character, as trustees and executors; and when the recipients of the testator’s bounty are different persons, this may be of some consequence, for it would be obviously wrong, to throw the expense attending the management of the trust, on the residuary legatees, which would be the effect of the decision of the auditor. And this would be clear, and the injustice apparent, where an estate was given in trust to one, and the residue to another, and where ,the control of the trust fund would be distinct and independent of the general administration. All the services which may be rendered, in furtherance of the trust are exclusively for the benefit of the cestui que trusts, and the expenses should be paid by them, and not by those who derive no benefit from them. As regards the fund, he acts as trustee: committing the trust to the executor, eo nomine, does not make him less a trustee. If the beneficiaries are properly cestui que trusts, the person to whom the legal estate is given for their use and benefit, by whatever name he may be called, must act as a trustee strictly, and in no other character whatever. In the Trustees of Jacobs v. Bull, (1 Watts, 370,) the executors were held accountable as trustees, although named in the will as executors."
This disposes of the first exception "to the trust account, as" well as to the exception to the administration account. The account to which the second exception applies is the account of Z. Collins trustee, as exhibited by Daniel Parker, his administrator. The second exception is the refusal to charge the accountant with the interest on the sum of $2666 65, part of the trust fund. It strikes [242] me, that in this account, Daniel Parker is neither chargeable with the principal nor interest. The money arises out of certain ground-rents devised to the executors, in trust for certain persons and purposes, specified in the will, in which the testator provides, that if the said ground-rents should be extinguished by purchase agreeably to a provision in the deed of conveyance, then the purchase-money therefor shall, in lieu of the said ground-rent, go and be paid to the said Zaccheus Collins, Elliston Perot and Thomas Savery, and the survivors and survivor of them, and the executors and administrators of such survivor. The contingency to which the testator refers has happened; for Daniel Parker is the administrator of the surviving executor Collins, and as such is in possession of the money, as a trustee of Aston, and not as the administrator of Collins.
When the same individual is an executor of a will, and also the trustee of a fund arising out of the estate of the testator, and receives money in contemplation of law as trustee, it is demandable from him in no other character. Trustees of Jacobs v. Bull, (1 Watts, 370.) Where the same hand is to pay and to receive, the transfer is made by operation of law. It was not necessary to the validity of the transfer, that Daniel Parker should make a declaration, or do any act to the effect that he treated the money in his hand as belonging to him in his character as trustee. This the law does for him; and as it clothes him with the power, it at the same time throws upon him all the responsibility of a trustee. To have handed the money across the table as administrator, in order to receive it back as trustee, would have been an idle and useless ceremony. Siter’s case, (4 Rawle, 483.) The trust money passed into the possesion of Daniel Parker, as the trustee of Aston, in the year 1832, and it was his. duty to invest it in a reasonable time, as directed in the will. Instead of pursuing this course, all the funds belonging to the estate including the trust funds, were deposited by the administrator, in the Mechanics’ Bank: and the whole balance due upon the account according to the report of the auditor, remained untouched by General Parker. It imports but little, in which character the money was deposited; as the fund, according to legal construction, was in his hands as a trustee of Aston, and it was his duty to invest it, as directed by the testator. Nor can he, under such circumstances, claim an exemption from liability merely because he has not used the fund for his own benefit. The ground of liability is the failure to perform a duty, imposed on him by the will of Aston, of which he is the trustee, by an investment of the fund for the benefit of the cestui que trust. Although then, we are of the opinion, that General Parker may be liable for the principal and interest, in another proceeding, yet it cannot, with any propriety, enter into this account. If we should allow the charges in this proceeding, it would be at the expense of the estate of Collins; whereas the delinquency, if any, was by Parker, as trustee of [243] Aston’s will, and not as administrator of Collins. And certainly, as far as regards this, Collins in his lifetime was guilty of no default whatever. To reach this item, it will be necessary to cite him to account in the capacity of trustee, when he will be chargeable with the amount of the trust fund in his possession, and under his control, and also with the interest, unless he shows special reasons to justify his failure to make the necessary investment.
This disposition which we intend to make of these accounts, will render unnecessary any expression of opinion on the fourth exception. If the question should again arise on the report of the auditor, to whom we intend to refer these accounts', it may then be considered with a better prospect of doing justice to the parties. The sixth exception, and also the allegation that double commissions have been charged, are also referred to the auditor. This, if the facts are as stated, is so clearly erroneous, that there will be no difficulty in making the necessary correction.
Decree accordingly.