In re Buttorff's Estate

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtLINN, Justice.
Citation198 A. 30
Decision Date21 March 1938
PartiesIn re BUTTORFF'S ESTATE. Appeal of BUTTORFF.
198 A. 30

In re BUTTORFF'S ESTATE.
Appeal of BUTTORFF.

Supreme Court of Pennsylvania.

March 21, 1938.


198 A. 31

Appeal No. 287, January term, 1937, from decree of Orphans' Court, Cumberland County, October term, 1935, No. 21; Fred S. Reese, President Judge.

Proceeding in the matter of the estate of George W. Buttorff, deceased, wherein Ira S. Buttorff, as surviving executor, filed his first and partial account, to which numerous exceptions were filed. An auditor was appointed and all exceptions were disposed of satisfactorily to the parties except an exception by Thompson Martin, executor of Henry W. Buttorff, deceased, to the failure of the accountant to allow any executor's commissions. The auditor allowed the sum of $2,551.57 as executor's commissions for the services of the deceased executor, and from a decree sustaining the auditor, Ira S. Buttorff, as surviving executor, and in his own right, appeals. Affirmed.

Argued before KEPHART, C. J., and SCHAFFER, MAXEY, DREW, LINN, STERN, and BARNES, JJ.

Thomas R. Wickersham, of Harrisburg (Wickersham & Wickersham, and Lynn M. Irvine, all of Harrisburg, of counsel), for appellant. J. H. Reiff, of New Cumberland, and E. M. Biddle, Jr., of Carlisle, for appellee.

LINN, Justice.

George W. Buttorff died in 1922, leaving his property, by will, to his wife and six children. Part of it was the subject of the fourth paragraph of the will: "It is my desire that the Buttorff & Co. business be continued as it now is by my Executors, and each share holder [it was not a corporation] to receive their dividends from the earnings of said business annually, that my interest in the real estate of Buttorff and Kline remain as it is." His executors were his sons Henry, and Ira, the appellant. They conducted the business until Henry's death February 6, 1935. During that period they had not filed an account though they had made partial distribution1 from time to time of principal and income.

Pursuant to citation obtained on petition of Henry's executor, Ira filed what he called a first and partial account (subsequently amended) which, being excepted to, was referred to an auditor to pass on the exceptions. The question now presented on this appeal was then raised by the following exception to the account: "4. That Accountant has failed to make allowances to Henry W. Buttorff, or his estate, for his share of the commissions for services rendered as Executor and Trustee in said Estate up to the time of his decease."

The payment of compensation for Henry's services, rendered from the time he qualified as coexecutor in 1922 until his death in 1935, was opposed by Ira and other children of George on an allegation that Henry and Ira, as coexecutors, had agreed with each other, and with the other distributees, to serve without compensation. The learned auditor, whose report indicates that he gave full consideration to the subject, ruled that the witnesses called to testify

198 A. 32

to the agreement were incompetent under the Evidence Act; he also held there was neither waiver nor laches and accordingly awarded commissions in an amount not now questioned. The learned court below...

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