Opinion by

Plaintiff and defendants’ testator were executors of, and joint trustees under, the will of their brother, C. C. Mansfield. They filed a joint account in the orphans’ court of Philadelphia county, showing a small balance due the estate. A second account was filed by the surviving trustee in 1899, after the death of the defendants’ testator, as the “ second account of John H. and Job R. Mansfield, trustees under the will of Charles C. Mansfield, as stated by Job R. Mansfield, the surviving trustee.” Upon exceptions to this account and an adjudication by the orphans’ court, various surcharges were made, amounting in all to $882.72, and, in the final adjudication and restatement of the account by the orphans’ court, a balance is-found to be due the trustee of $29.18, “ to be paid to the trustee out of the income to be collected and hereafter accounted for.”

The action here is in assumpsit, by the plaintiff, to recover from the defendants the one-half part of the surcharge made by the orphans’ court against the co-trustees of $882.72, together with an amount of $67.40, alleged by the plaintiff to have been received by the defendants’ testator in goods from a tenant of the real estate, belonging to the estate of which they were joint trustees, and which had not been accounted for.

Upon the trial, the defendants, “ moved for a nonsuit on the ground that the record does not show that the plaintiff has paid in the surcharge.” This was a distinct notice to the plaintiff that the defendants required him to- show that he had ac*121tually paid the amount of the surcharges, the one-half of which he sought to recover from the estate of the defendants’ testator.

At the end of the trial the case- was fairly submitted to the jury, as to the facts in controversy, and a verdict was found for the plaintiff for $617.90. Subsequently, upon exceptions filed and a motion for judgment, non obstante veredicto, the court entered judgment for the defendant, stating, as the reason therefor: “While the orphans’ court, upon the adjudication of the account of the trustees under the will of Charles C. Mansfield, as stated by Job R. Mansfield, surcharged them with the sum of $882.72, there was no evidence presented on the trial to prove that the plaintiff had in fact paid the surcharge or was in anywise injured thereby.

“ In the absence of such evidence, the defendants were entitled to have had their point for binding instructions affirmed.”

A careful examination of the testimony given at the trial fails to show even an effort on the part of the plaintiff to prove that he had actually paid the amount sought to be recovered from the defendants, as the one-half of the surcharge made by the orphans’ court against the trustees jointly.

The effort is made by the plaintiff to argue from the record of the orphans’ court, that the surviving trustee had paid the amount of this surcharge, because, in the final adjudication the orphans’ court found the estate indebted to the trustee to the amount of $29.18, but that the surviving trustee paid this amount out of his own pocket does not appear in the adjudication, and it is mere inference that such was the case. In order to enable him to recover, it was necessary for him, by affirmative, substantive proof, to show the payment of the surcharge out of his own funds. The burden was upon him to do so, and, having failed even to make an effort in this direction, we can see no error in the action of the court in entering judgment for the defendant, non obstante veredicto.

Judgment affirmed.