Account of G. M. Tustin, Assignee of The Catawissa Deposit Bank. Appeal of G. M. Tustin from Confirmation of Auditor’s Report.
Assignment for benefit of creditors — Compensation to assignee.
The circumstances that will justify an allowance of commissions to an assignee in excess of 5 per cent must be such as show an unusual amount of labor. Extraordinary labor is the basis on which a claim for extraordinary compensation must rest.
Allowance of fee paid for suretyship.
Where it was apparently contemplated on the acceptance of the trust that an assignee for the benefit of creditors should be allowed to charge the price paid by him to a trust company for becoming his surety, he will be entitled to credit for the same in his account, and an expression of his opinion or belief that the expense of settling the estate would not exceed 5 per cent should not deprive him thereof.
Argued April 14, 1896.
Appeal, No. 163, Jan. T., 1896, by G. M. Tustin, assignee of the Catawissa Deposit Bank, from the decree of O. P. Columbia Co., dismissing exceptions to report of auditor, surcharging said assignee.
Before Sterrett, C. J., Green, Williams, McCollum and Mitchell, JJ.
Modified.
Exceptions to auditor’s report.
The Catawissa Deposit Bank, an institution organized under a special act of the legislature, to do a deposit and discount business, made an assignment to wind up its affairs by reason of the expiration of its charter, May 19, 1891. G. M. Tustin, the appellant, was chosen assignee. He had been the cashier of the bank since 1884.
*383Prior to the assignment, the bank had collected all of its available assets, and paid off its depositors and other indebtedness except a very inconsiderable amount.
The assets assigned consisted of past due defaulted notes, past due judgments, defaulted agreements upon real estate, farm property and other real estate, overdrafts, some cash, aggregating the appraised amount of $39,467.47; together with several other past due and defaulted claims, to which no valuation was attached.
Before entering upon the duties of the trust, Mr. Tustin gave bond in the sum of $78,900 with the Guarantee Trust & Safe Deposit Company of the city of Philadelphia, as his surety. The expense of this suretyship was 1 per cent of the amount coming into the hands of the assignee, and amounted to $418.26.
Independently of collections made on account of crops and rents from real estate, the assets collected constituted one hundred and seven items. The assignee had the oversight of tenants on a farm; he made about eighteen separate collections on account of crops marketed by him, and he made about twenty-five different payments on account of repairs, taxes, etc. He endeavored to make sale of the real estate, sending out letters to the fifty-two shareholders and others, upon two separate occasions, and visiting them. He finally procured an order of court and attended the sale. He had occasion to visit the farm and other real estate which demanded his attention.
He brought but few suits; — but successfully defended a litigated case in court.
The total amount of funds received, disbursed and accounted for by the assignee was $41,673.98, which consisted of cash, assets due on overdrafts, about forty notes of the appraised value of $16,000, seven judgments aggregating about $7,000, two mortgages, some bridge stock and $6,000 worth of real estate, independently of collections made on account of crops and rents from real estate.
Whenever he succeeded in getting $10,000 in hand, he made application to court for permission to pay the same to shareholders. This was upon three separate occasions; and $30,000 were paid out to the shareholders under the direction of the court, a compliance with .which added to the labor and time of the assignee.
*384He succeeded in collecting over $8,000 of the unappraised assets.
To all uncollected assets he bestowed great attention; and was required to go to Philadelphia at least three times, Harrisburg twice and twice to Williamsport.
The attention thus given extended over a period of two years and a quarter, and the execution of the trust was in every way commendable.
The assignee filed an account wherein he charged himself with $41,825.72, collected and received by him, and took credit among other things with the sum of $3,555.18 for his compensation for services, etc., which included also the $418.26 paid by him to the surety company.
The account was excepted to by Mrs. Jane Eyer aud Mrs. E. Kostenbauder, two of the shareholders, and the appellees; the material exception being as to the amount claimed for compensation by the assignee.
The account was referred to J. H. Maize, Esq., as auditor to report upon the exceptions, and to make distribution to the parties entitled.
The auditor made his report wherein he reluctantly surcharged the assignee with the sum of $625.10 and reported a distribution. By this reduction the assignee had the equivalent of 6 per cent for compensation, and the 1 per cent he paid the surety company on the fund received. Exceptions were filed to the auditor’s report upon the part of the appellant and by the appellees. There were no specific exceptions to any of the auditor’s findings of fact.
The court, in an opinion, made an order as of December 2, 1895, dismissing the exceptions as filed by the assignee, and sustaining the exceptions on the part of the shareholders, and referred the report back to the auditor to make an amended distribution by reducing the compensation to 5 per cent on the amount of cash administered; and afterwards on December 4, 1895, the court made another order that the accountant’s commission, with the expense of suretyship included, shall not exceed 5 per cent on the general fund, and made further order, whereby the assignee was allowed only the equivalent of 4 per cent of the fund received for his compensation, and the 1 per cent he had paid the surety company.
*385July 15, 1896 :
The auditor then made a second report, in accordance with the instructions of the court, and surcharged the accountant with the sum of $1,471.49.
In discussing the question of compensation the auditor cited: Brewster’s Practice, p. 404; sec. 4451; Heckert’s App., 24 Pa. 486; Duval’s App., 88 Pa. 112; Armstrong’s Est., 6 Watts, 286 ; Wharton’s Est., 1 W. N. 318; Kauffman’s App., 9 Cent. 737; Davis’ App., 100 Pa. 201; Perkin’s App., 108 Pa. 314; Cox’s Est., 5 W. N. 474; Harbster’s App., 125 Pa. 1; Biddle’s App., 3 W. N. 396; Gilpin’s Est., 138 Pa. 143; Clark’s Est., 11 Phila. 53; King’s Est., 11 Phila. 26; Marsteller’s App., 4 Watts, 267; Wister’s Est., 6 Phila. 55.
To this second report of the auditor, the appellant filed an exception, complaining of the surcharge of $1,471.49.
On December 26, 1895, the court made an order dismissing the exception, and confirming the report of the auditor.
An appeal was then taken to this court, because of the action of the court below in reducing the compensation of this trustee.
Error assigned, among others, was decree that the accountant’s commission, with that of suretyship included, shall not exceed 5 per cent of the general fund.
James Scarlet, with him Bobt. B. Little, for appellant.
W. H Bhawn, with him Grant Herring and Q. A. Small, for appellees.