Lennig's Estate

Opinion by

Rice, P. J.,

The will of the testator contained this provision:

“As Executors of this my will I appoint my sons Nicholas and John Boulinger Lennig with a compensation to them for its faithful Execution of Ten thousand Dollars to each of them; having while living amply provided for these my sons I have not otherwise remembered them in this my will than as incidental legatees.”

In the account involved in this appeal the surviving executor charged himself, inter alia, with $35,000, received from the sale of standing timber in West Virginia, and took credit for $875.00, as commission at two and a half per cent on the proceeds of sale. No exceptions were filed to the account. But in his adjudication confirming the account nisi the auditing judge quoted the above provision of the will, and expressed the opinion “that the commission above referred to is improperly charged, in that' the sale of the property and the turning over of the net proceeds was part of the accountant’s duty as executor.” Then, after stating that the trustee under the will, through its counsel, stated that it made no *601 objection to the commission, but did not express assent to its allowance, the auditing judge further said, “Whether or not the trustee may, in the exercise of a sound discretion,- allow compensation in the nature of a commission where the will provides in definite terms for a sum certain need not now be discussed or determined, in that the award will be made without prejudice to the rights of the parties who may be affected by such allowance.” A few days after the confirmation nisi, the auditing judge upon the oral request of counsel for the trustee, suspended until further order the confirmation of the account as to the credit of $875, for commissions. Afterwards, the the account having been called for re-audit, the auditing judge filed a supplementary adjudication, setting forth that in the prior adjudication he had allowed the commission because the trustee did not object, “and that at this rehearing the trustee filed a formal objection in order that if the commission was disallowed exception might be filed,” and concluded with a surcharge of the executors with the amount of the commission. Exceptions were filed by the accountant and still later the court recommitted the adjudication to the auditing judge for his further consideration, after hearing the testimony to be presented on behalf of the accountant. At the re-audit, pursuant to this order, testimony was taken but the auditing judge adhered to his former conclusion, that the accountant, as executor, was not entitled to compensation beyond the sum specified in the will. To his readjudication, in accordance with this conclusion, the accountant filed exceptions which, after hearing before the court in banc, were dismissed, two of the judges dissenting, and from that action, which all the parties have treated as a final decree, confirming the readjudication, this appeal was taken by the accountant.

1. Under the first assignment of error it is argued that the auditing judge exceeded his judicial power in questioning the aócountant’s right to commission, in the absence of exception or objection by a party interested, and in *602 support of this contention counsel cites Stitzel’s Estate, 221 Pa. 227. In that case it was declared that a surcharge was an adjudication against the accountant which could not be made without notice to him, and an opportunity to be heard before he is condemned, and that a surcharge of the land made in that case for an overpayment of counsel fee was not one that could be made at all by the court, without an exception by some interested party before it. But in the same connection the court said that the duty to examine with due consideration carries with it the right of the court on its own motion to make inquiries, suggest objections and call for explanations, and further on in the opinion the eourt said, “All that the court could properly do was to notify the parties, state the objections and make sure that the trustees understood the court’s views. After that the decision rested with the trustees.” We have no means of knowledge as to what occurred at the first audit except what is furnished in those parts of the opinion of the auditing judge which we have quoted, and we think it quite clear that what he said in that opinion cannot be regarded as being in excess of his judicial power as defined in the case cited or as indirectly coercing the trustee to object to the commission. All that the learned judge did was to express his views as to the right to compensation beyond that mentioned in the will, and in doing so he was well within his judicial power, and his remarks are not open to just criticism.

2. It appears that in the adjudication of a former account commissions were claimed and allowed on the proceeds of the sale of real estate involved in that account. It does not appear that objection to such allowance was made by anyone. With regard to this adjudication the auditing judge says: “The record which was offered in evidence shows that the accountants alone were represented, and the petition does not set forth the provisions of the will. That account states the executors reserve the question of their compensation for the consideration of the court. Whether this means as to the fact or as to the *603 amount, does not appear, and the then auditing judge, without comment (though, of course, it cannot be said without consideration), deducted commission at the rate above stated from the net proceeds of realty then shown to be on hand.” We are of opinion that this former adjudication cannot be regarded as conclusive as to the fund now for distribution. The question was considered by us in the recent case of Kellerman’s Estate, 52 Pa. Superior Ct. 412, and we need not go over the ground again.

3. The general rule that where an executor accepts the office with knowledge of a provision in the will fixing his compensation, he is bound thereby is well settled: Hay’s Estate, 183 Pa. 296. We find nothing in the circumstances of this case to take it out of the general rule as enunciated and applied in the case cited. The opinion of the orphans ’ court upon that question covers the ground so satisfactorily that we deem it unnecessary to add anything further.

The assignments of error are overruled and the decree is affirmed at the costs of the appellant.