Rieger's Estate

The exceptions, five in number (no. 6 having been withdrawn on December 10, 1934), are to the allowance by the learned auditing judge of a commission of 3 percent, amounting to $807.44, on stock dividends, originally thought by the retiring trustee to be principal but afterwards ascertained to be income.

The exceptants are three of the cestuis que trustent, the fourth (who is also a cotrustee) filing none.

Considerable testimony was taken, and, as the weight thereof favored the position of the retiring trustee, the learned auditing judge found as a fact and conclusion of law that, as there was no negligence nor want of care nor want of attention by such trustee, in these circumstances it should not be penalized by deprivation of commissions. In this conclusion we all agree.

Within a short time after it was definitely settled that a certain part of the stock dividends was to be treated as income, such shares were delivered to the objecting cestuis que trustent, and at the time of such delivery the stock in question was selling at a price higher than that which could have been obtained if at the time of the declaration and payment of such dividends the parties entitled had received the stock; so that the delay caused no loss.

Believing that the exceptions have but little merit, and noting that none of the cases cited by exceptants and examined by us is in point on the facts of this case, we dismiss all exceptions and confirm the adjudication absolutely.