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BARTHS ESTATE. APPEAL LEIPER (11/15/51)

November 15, 1951

IN RE BARTHS ESTATE. APPEAL OF LEIPER


COUNSEL

William Jay Leon, Philadelphia, for appellant.

No appearance or book for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Gunther

[ 170 Pa. Super. Page 164]

GUNTHER, Judge.

Did the court below err in reducing guardian's commissions and counsel's fee and in surcharging the guardian with the amount of such reductions?

Appellant was appointed guardian of the estate of Louise F. Barth, an incompetent, on November 21, 1947. The estate consisted of approximately $9,500 cash representing in part the proceeds of sale of real estate sold by the guardian. The ward died on February 13, 1951, and six days later the guardian filed his second and final account wherein he claimed credit for a payment of $500 additional counsel fee and a further credit of $475 as commissions for himself, being 5% of the amount of principal collected and managed by him. No objections were made by next of kin, but the court below on its motion and after considering a report of his services filed by counsel reduced counsel fees and the guardian's commissions to $200 each. The guardian

[ 170 Pa. Super. Page 165]

    has appealed from a decree surcharging him with the amount of such reductions.

Ordinarily, the amount of fees to be allowed counsel is one peculiarly within the discretion of the court of first instance, and its decision will not be interfered with except for palpable error. In re Rambo's Estate, 327 Pa. 258, 266, 193 A. 1; In re Harton's Estate, 331 Pa. 507, 523, 1 A.2d 292. Cf. In re Riebel's Estate, 321 Pa. 145, 184 A. 118; Pryor's Estate, 150 Pa. Super. 75, 27 A.2d 466. It is to be observed, however, that that rule obtains where exceptions have been filed by interested parties challenging the excessiveness of fees or commissions. Where, as here, no objections have been made by parties in interest who are all sui juris the court performs its full duty when, on its own motion, it makes inquiries, suggests objections and calls for exceptions. Stitzel's Estate, 221 Pa. 227, 70 A. 749, 18 L.R.A., N.S., 284. Cf. Franklin Appeal, 163 Pa. 1, 29 A. 912; Newhall Appeal, 346 Pa. 518, 521, 31 A.2d 127.

The court below also took the guardian to task for investing in preferred stock without prior court approval. The court below failed to give recognition to the Act of July 2, 1935, P.L. 540, 20 P.S. c. 3, Appendix, ยง 815, which was in effect when investments in the instant case were made. Under Section 2 of the Act of 1935, supra, it is clearly provided that 'Any such fiduciary, holding moneys to be invested, may invest such moneys in any investment in which, at that time, a fiduciary subject to the jurisdiction of the orphans' court of any county of this Commonwealth may invest like moneys'. Cf. In re Pauer Estate, 351 Pa. 350, 41 A.2d 675; Fiduciary Review, April, 1945.

On broad considerations, the court below erred in reducing the fees of counsel and the commissions of the accountant. The management of the estate extending over a three-year period was faithful, constant, ...


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