account of a trustee refuses, for lack of vouchers, to allow certain credits claimed, finds numerous evidences of mismanagement through lack of business qualifications on the part of the trustee, but not through dishonesty, and accordingly reduces the trustee's commissions to the amount due him upon the business properly done, some of the exceptions to the account being dismissed and some sustained, it is not error to decree as to costs that they be divided between the estate and the accountant.

(Argued Feb. 25, Decided March 7, 1887.) ANUARY Term, 1887, No. 84, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett and Clark, JJ.

JANUA

Appeal from a final decree of the Common Pleas of Chester County, confirming the report of an auditor appointed to examine and report his opinion upon exceptions filed to the account of a trustee. Affirmed.

The facts as found by the auditor William T. Barber, Esq., were as follows:

'David Hethery, in his lifetime, was the owner of a farm situate in East Nantmeal Township, Chester County, containing between seventyseven and seventy-eight acres of land.

On the 10th day of September, 1868, he executed and delivered to Michael Hoffman a deed of trust for certain purposes, to wit: that said Hoffman should raise money and pay off Hethery's debts existing at that time; that he should manage, use and let the said real estate, and receive the rents and profits of the same, and appropriate the said proceeds to payment of taxes and repairs, and for the support and maintenance of him, the said David Hethery, etc. Michel Hoffman accepted the trust, and afterwards applied to the Court of Common Pleas of Chester County, by petition, asking to mortgage the said real estate in order to raise money to pay off the indebtedness of David Hethery. The court made a decree, allowing the trustee to borrow the sum of $1,500, and on the second of January, 1878, the trustee borrowed said sum on bond and mortgage, which were made a lien on the said real estate. The $1,500, together with the rents, issues and profits of the farm, were expended; and the trustee now alleges that he had contracted a large amount of debts, besides the above, in order to carry on the business under the trust. David Hethery died on the 23d of March, 1885. The trustee, Mr. Hoffman, filed an account of his trust on the 4th of August, 1885, showing a balance due to himself of $1,411.61. To this account Damon Y. Kilgore filed several exceptions. The matters in controversy, among others, were that a large number of items of credits in the trustee's account, amounting to nearly $800, were believed to be incorrect, and should be stricken from the same; that the compensation to accountant-$200— should not be allowed; that the account was erroneous in other respects, and especially that the trustee had not charged himself with all the moneys which came or should have come into his bands, and that the account required a general examination and correction.

The auditor was appointed to examine into the facts and circumstances and report his

opinion, etc., to the court. There were fifteen meetings of the audit; and the auditor says in his report "the large majority of which was made necessary in order to afford accountant full opportunity to vouch his disbursements, for which he had neglected to take receipts."

The trustee kept his accounts in a careless, confused, and unskillful manner, which rendered them difficult for him to explain, or for any person to understand. Many of the items in his account were so uncertain that he asked for delay in order to enable him to vouch the same; a large number were imperfectly vouched and many others he could not vouch at all, and they were stricken from the account by the auditor.

The auditor found that the trustee had claimed a credit in his account for $90 interest paid to Eber Anderson, which Mr. Anderson testified was paid by David Hethery himself, personally, and that he gave Hethery a receipt for the same, which was exhibited to the auditor.

The auditor further found that the trustee had taken credit in his account for $200 of interest due himself, when in fact there was only $100 due to him; that he had taken credit in his account for four several items of $50 each, which were not allowed by the auditor; and that he had taken credit in his account for fortynine items aggregating the sum of $781.99. which were improper, and which he disallowed and struck from the account.

And the auditor, from these facts, restated the account of the trustee, allowed him commissions and placed the whole of the expenses of the audit, amounting to $170.70, on the estate of David Hethery.

To the finding of the auditor exceptions were filed by both parties. Those filed by the executor of David Hethery, had reference, inter alia, to the allowance of commissions to accountant, and the placing of any part of the expenses of the audit on the estate.

The auditor thereupon filed a supplemental report substantially as follows:

The accountant, so far as appears in evidence, has in no way misbehaved himself, or abused the trust confided in him. His sins were those of omission, for which he has been fully punished in the loss of money, much of which the evidence shows to have been paid by him to and for the decedent, but for the payment of particular amounts of which no sufficient vouchers were produced. There is no good reason, therefore, for depriving the accountant of commissions. The auditor had in mind, as suitable compensation, the sum of $160, being an average of $20 per year, to which sum the auditor thinks the accountant was entitled, so long as the deed of trust remained unrevoked. From the year 1869 to the year 1877, the former auditor allowed him $25 per year for an administration of the trust conducted in precisely the same manner, to which allowance the decedent then made no objection.

With reference to expenses of audit, the auditor took into consideration that a large portion of the evidence related to exceptions filed by the executor as to rents, pasturage, depreciation of property, etc., which exceptions were not sustained, the exceptant, however, contending that upon a fair settlement there should be a small balance due the estate

Messrs. Charles H. Pennypacker and James H. Bull, for appellee:

There is no such evidence here as could justify the action sought by this exceptor in regard to the compensation of the trustee. The auditor fully disposes of all reflections upon the con

The assignments of error specified, inter alia, the action of the court in dismissing the above exceptions.

Messrs. R. E. Monaghan and A. P. Reid, for appellant:

The report of a master or an auditor is neither a decision nor an infallible guide, but an instrumentality, to aid the court in performing its own functions.

Phillips' App. 68 Pa. 138; Moyer's App. 77 Pa. 486; Glendon Iron Co. v. Uhler, 75 Pa. 471; Hindman's App. 85 Pa. 470; Milligan's App. 97 Pa. 531.

Compensation is allowed to a trustee for the preformance of duty, as a reward for a faithful execution of the trust confided to him. Integrity, industry, intelligence, and enlightened activity in the trustee, are the qualities which command reward. But if a trustee does wrong, he is entitled to no compensation. Wrongs resulting from neglect of duty, slothfulness, ignorance and confusion of accounts, are means by which compensation is forfeited. Wrongs of omission are as great as wrongs of commission; and neither are entitled to be rewarded.

If the trustee makes false charges against the estate, or seeks to profit out of the funds of his principal, or takes credit against the estate for moneys not due to him, are such misconduct as always is followed by loss of commissions. An unfaithful trustee will not be allowed commissions. They are disallowed to trustees to deter men from committing breaches of trustas a penalty for a known violation of duty.

Swartswalter's Account, 4 Watts, 77; Dyott's App. 2 Watts & S. 557; Stehman's App. 5 Pa. 413; McCahan's App. 7 Pa. 56; Holman's App. 24 Pa. 174; Mrs. Greenfield's Est. 24 Pa. 232; Berryhill's App. 35 Pa. 245; Robinett's App. 36 Pa. 174; Snyder's App. 54 Pa. 67; Lamb's App. 58 Pa. 142; Hermstead's App. 60 Pa. 429; Norris' App. 71 Pa. 115; Welch's App. 1 Pennyp. 9; Reeves' App. 38 Legal Int. 441.

A trustee who makes an unfounded claim against the estate, will not be allowed commissions.

Robinett's App. and Welch's App. supra. Commissions are disallowed where the trustee fails to keep proper accounts with the estate, or failing to satisfactorily vouch his account.

Sauter's Est. 6 W. N. C. 95; Norris' App. 71 Pa. 115; Bradley's Est. 32 Legal Int. 257. ·

Where a trustee presents such an account as makes it necessary to refer the same to an auditor, and he should find against the trustee, he, and not those entitled to the estate, should be charged with the expenses of such refer

ence.

Slerett's App. 2 Penr. & W. 419; Martin's App. 23 Pa. 433; Gable's App. 36 Pa. 395; Norris' App. 71 Pa. 106; Speakman's App. 71 Pa. 30; McClintock's App. 71 Pa. 365; Lamb's App.

to all the commissions allowed him.

Williamson's Est. 7 W. N. C. 82; Dunlap's Est. 9 W. N. C. 349; Bean's Est. 1 Ches. Co. Rep. 350; Sourin's Est. 11 Phila. 14; Wister's App. 86 Pa. 160.

Per Curiam :

The auditor found that the accountant had managed the estate conscientiously and to the best of his ability; that while he lacked business qualifications, yet his integrity and his intention to act for the best interests of his cestui que trust were unimpeached. In view, however, of the fact that the estate had not been well managed he reduced the commissions of the accountant and imposed one half of the costs of the audit upon him. The court confirmed the decision of the auditor.

We discover nothing inequitable in their conclusion, in considering the whole evidence in the case.

Decree affirmed and appeal dismissed, at the costs of the appellant.

Peter J. COVER, et al., Admrs., Piffs. in Err., v.

Samuel MISHLER.

Where an action is upon a note under seal and, after the introduction of evidence tending to prove its execution and loss, a paper alleged by the plaintiff to be a copy of it is, without exception, admitted in evidence as proof, not of its execution, but simply of its contents, an exception to binding instructions to the jury to find for the defendant does not raise the question whether the court should have admitted the paper as a copy of a note the execution of which had been sufficiently proved to entitle it to go to the jury.

(Argued Feb. 8, Decided March 14, 1887.)

JULY

ULY Term, 1885, No. 186, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, Green and Clark, JJ.

Error to the Common Pleas of Somerset County, to review a judgment on a verdict for the defendant in an action of scire facias to review a judgment. Affirmed.

Judgment was confessed on behalf of defendant by the attorneys for plaintiffs on the following note: $64.63.

Davidsville, Pa., Dec. 1, 1873. Four mounths after date I promise to pay to the order of S. J. Cover sixty-four 63-100 dollars, without defalcation, for value received.

And further, I do hereby empower any attorney of any court of record within the United

1 Whart. Ev. § 739.

The evidence should have gone to the jury for them to say whether the execution of the note was sufficiently proven. It was not the province of the court to decide.

Witness my hand and seal, his

Sophia Cover. Samuel X Mishler, [Seal.] mark.

Seire facias was issued to review this judgment, when the defendant filed an affidavit of defense setting forth that he never signed the note on which the original judgment is entered, and never authorized anyone to do so for him, by mark or otherwise.

These papers constituted the pleadings in the case, it being agreed that it should be tried on the scire facias, as effectually as if the original judgment had been opened.

At the trial before BAER, P. J., the note was not produced and its loss was testified to by the counsel who copied it in the narr.

The widow of the payee, who was, under exception, admitted as a witness, says she was called into a room to witness a note; that defendant and her husband were alone in the room; that she signed her name to a note as a witness, that it was for something like $60 or $64 (she was very indefinite as to the time; thought it was in 1874); that Mishler said nothing to her or in her presence, and she said nothing to him. She also said "I don't say that I saw him sign it;" nor did she say that it was signed at all, or whether by name or mark. She did not say she read the note, nor did she say that the copy of the note inserted in the narr. was a copy of the note she signed as a wit

ness.

The plaintiffs then offered the copy of a note dated December 1, 1873, payable four months after date to S. J. Cover, calling for $64.63 purporting to be signed by Samuel Mishler, by X mark, and with the name of Sophia Cover at the lower left hand corner.

This was admitted by the court, merely as proof of the contents of a lost paper, but was not admitted as an executed note; the court holding that the execution of the note was not sufficiently proven. To this ruling of the court no exception was taken by the plaintiffs, and they rested their case at that point.

The defendant offered no evidence and the court instructed the jury:

"The defendant offers no evidence; but from the evidence in the case, we say to you that your verdict must be for the defendant.'

Judgment and verdict were accordingly for the defendant.

The assignment of error specified the charge of the court.

Messrs. Coffroth & Ruppel, for plaintiffs in error:

It is not generally necessary that an attesting witness should be able to recollect the circum

Hamsher v. Kline, 57 Pa. 402.

If there is any evidence, however slight, tending to prove the formal execution of a deed, it is sufficient to entitle it to go to the jury. 2 Greenl. Ev. § 295.

Few men can swear positively to the sealing and delivery of an instrument after any considerable time.

Pigott v. Holloway, 1 Binn. 442.

Identity of name is sufficient in the first instance as presumptive evidence of identity of person.

3 Phillips, Ev. 1301; Atchison v. M'Culloch, 5 Watts, 13.

In the absence of countervailing proof, the law presumes against fraud and in favor of innocence.

Miller's Est. 3 Rawle, 317.

If a subscribing witness is dead, or out of the State, or has become interested since the execution, evidence of his handwriting is sufficient.

Prince v. Blackburn, 2 East, 250; Hamilton v. Marsden, 6 Binn. 45; Kelly v. Dunlap, 3 Penr. & W. 136.

Equal reason exists for the application of the same rule where he has lost all memory of the transaction. Prima facie the presumption is that what he has attested has taken place in his presence.

Sigfried v. Levan, 6 Serg. & R. 311.

Where the defendant moves for a nonsuit, the plaintiff's evidence must be taken to be true, and every reasonable inference of fact which a jury might draw from it in favor of the plaintiff must be drawn by the judges. Miller v. Bealler, 100 Pa. 583.

The binding instruction, given by the court to the jury, to find for the defendant brings the whole record before this court for review.

A writ of error which goes to the whole record, brings it necessarily into the court of error. Counsel may come here and assign errors upon any part of that record and it is our duty to notice them."

Wheeler v. Winn, 53 Pa. 129.

Messrs. W. H. Koontz and H. S. Endsley, for defendant in error:

Exception was not taken by the plaintiffs in error at the proper time and place.

To authorize memoriter proof of a lost document, the witness must have read it, or heard its contents from its author, and be able to speak at least to the substance of such contents. Such evidence, also, should be supported strongly by circumstances in cases where the probabilities are that a writing of the character of that in dispute would be carefully preserved. But before such evidence will be admitted it must be shown that the original instrument was duly executed, and was otherwise genuine. 1 Whart. Ev. §§ 140, 142.

To make a copy of a lost instrument of writing admissible, the evidence of the genuineness of the original from which it was taken must

This was an action by Charles Norris to the use of Jacob R. Spangler, against the Keystone Mutual Benefit Association, on a policy of insurance for $1,000 on the life of Louisa Rousch. At the trial before ALBRIGHT, P. J., the following facts appeared:

The policy was issued August 29, 1878, in pursuance of an application dated August 6, 1878, and purporting to be made by the assured. It was payable to Norris, a son-in-law of the assured, and on September 16, 1878, was assigned by him to Jacob R. Spangler, who paid all the premiums but had no interest in the life of the assured.

It was understood among the parties to this transaction, before the application was made, that the policy was to be assigned in this man

ner.

There was a condition in the policy as follows:

"No suit or action at law under this contract shall lie against this Association, unless the same be brought within one year from and after the death of the insured; and this policy is issued and accepted upon the express condition that said period of time be the limit of the right of action at law under this contract." The insured died October 28, 1882, in Baltimore. On March 10, 1883, Spangler brought a suit in his own name upon the policy in York County; but the court set aside the service, on the ground that as the assured did not die in the county, and the principal office of the Association was in Lehigh County that action could not, under the Acts of April 24, 1857, and April 8, 1868, be maintained, and the judgment was affirmed by the supreme court June 2, 1884. The present action was begun March 14, 1885. The court refused the following points presented by the defendant:

"4. This suit not having been brought within one year after the death of the insured cannot be sustained, as that is the limit of the right of action at law under the contract."

"5. According to the admission of Spangler the policy was taken out by him; all the premiums and assessments were paid by him; and that was done upon the strength of an understanding between Spangler and Mrs Rousch; this made Spangler in law the real beneficiary, and as he had no insurable interest in the life of the insured the verdict must be for the defendant."

"6. According to the admissions of Spangler and Norris, made at the trial, the contract of insurance was, in its inception, a wagering policy and therefore void; and the verdict must be for the defendant."

7. If the jury believe that Spangler effected this insurance for himself; that he paid all the premiums and assessments; that the policy was taken out with the understanding that it was to be for the benefit of Spangler and to be assigned to him; then he, having shown no insurable interest in the life of the insured, would not be entitled to recover, and the verdict must be for the defendant."

Verdict and judgment were for the plaintiff. The assignments of error specified, inter alia, the refusal of the above points.

Mr. Edward Harvey, for plaintiff in

error:

The conditions of a policy of insurance are part of the contract between the parties.

Desilver v. State Mut. Ins. Co. 38 Pa. 130; Kensington Nat. Bank v. Yerkes, 86 Pa. 227; Fire Asso, etc. v. Williamson, 26 Pa. 196; Trask v. State Fire etc. Ins. Co. 29 Pa. 198; Inland Ins. etc. Co. v. Stauffer, 33 Pa. 397.

A limitation of the time within which an action may be brought on the policy may be valid as a condition.

N. W. Ins. Co. v. Phonix Oil etc. Co. 31 Pa. 448; Universal Mut. Ins. Co. v. Weiss, 106 Pa. 20: Waite v. Spring Garden Ins. Co. 1 W. N. C. 155; Shroeder v. Keystone Ins. Co. 2 Pa. 286; Warner v. Ins. Co. 37 Legal Int. 475; Farmers Mut. Ins. Co. v. Barr, 94 Pa. 345; Wood, Fire Ins. § 434; Wood, Limitations, § 42.

The Common Pleas of York County had no jurisdiction of the defendant; and therefore the record worked no estoppel.

Riddlesbarger v. Hartford Ins. Co. 7 Wall. 386 (74 U. S. bk. 19, L. ed. 257); Herman, Estop. 192; Campbell v. McCahan, 41 Ill. 45; Walden v. Craig, 14 Pet. 154 (39 U. S. bk. 10, L. ed. 397); Baxley v. Linah, 16 Pa. 241; Ripley v. Etna Ins. Co. 30 N. Y. 137; Roach v. N. Y. etc. Ins. Co. 30 N. Y. 546; Williams v. Vermont Mut. Ins. Co. 20 Vt. 222; Wilson v. Etna Ins. Co. 27 Vt. 99; Brown v. Roger Williams Ins. Co. 7 R. I. 301; Portage Co. Mut. Ins. Co. v. Stukey, 18 Ohio, 455; O'Laughlin v. Union Cent. Life Ins. Co. 3 McCrary, 543; Wilkinson v. First Nat. Ins. Co. 72 N. Y. 500; Harris v. Dennis, 1 Serg. & R. 236; Todd's App. 24 Pa. 429.

A policy not founded upon an insurable interest is a mere wagering policy, and therefore void.

Shilling v. Ins. Co. 2 Hurlst. & N. 42; Pritchet v. Ins. Co. of N. A. 3 Yeates, 458; Gilbert v. Moose, 104 Pa. 74; Warnock v. Davis, 104 U. S. 775 (Bk. 26, L. ed. 924); Cammack v. Lewis, 15 Wall. 643 (84 U. S. bk. 21, L. ed. 244); Carson's App. 4 Cent. Rep. 307; Ruth v. Katterman, 2 Cent. Rep. 776; Scott v. Dickson, 108 Pa. 6; Connecticut Mut. L. Ins. Co. v. Schaeffer, 94 U. S. 457 (Bk. 24, L. ed. 251); N. Y. Mut. Ins. Co. v. Armstrong, 117 U. S. 591 (Bk. 29, L. ed. 997).

Messrs. R. E. Wright's Sons, for defendant in error:

When a legal plaintiff is on the record and proves a case in his own favor against the defendant, it is not necessary for the use plaintiff to prove his title from the legal plaintiff.

If the defendant is indebted to the legal plaintiff, it is of no concern that the sum recovered is to go to the use plaintiff. The judgment protects him and the parties entitled to the fund can intervene to protect their interests in it.

Armstrong v. City of Lancaster, 5 Watts, 68; Montgomery v. Cook, 6 Watts, 238; Irish v. Johnston, 11 Pa. 483; Commonwealth v. Lightner, 9 Watts & S. 117; Hamilton v. Brown, 18 Pa. 87; Crawford v. Stewart, 38 Pa. 34; Memphis etc. R. R. Co. v. Wilcox, 48 Pa. 162; Berks Co. v. Levan, 86 Pa. 360.

The insured was the debtor of the beneficiary; he supported her, and she owed him for this; he had therefore an insurable interest.

Keystone Mut. Benefit Asso. v. Beaverson, 16