Morrison's Estate

Opinion by

The main contention at the audit related to the accountant’s claim for compensation for services and for the allowance of expenses incurred in the management of the real estate of the decedent. All questions relating to these subjects were carefully considered and properly decided by the learned judge of the orphans’ court specially presiding., The services of the accountant were of an unusual character and of great value to the estate, but they were not performed by him entirely in his capacity as administrator. He was acting in his own interest as an heir, as a trustee for some of the other heirs, possibly as an agent for others, and as administrator. The allowance made is in excess of the usual amount, being five per cent of the total fund, a large part of which was realized from the sale-^of real estate. This is all he was entitled to. Whatever claim for compensation and for expenses incurred he may have against the other heirs may be adjusted in another proceeding, but it cannot be considered in this.

*86While in this state lands are assets for the payment of debts they are not assets in the hands of an administrator, and' without an order of the orphans’ court he has nothing, to do with them. In case of intestacy they descend to the heirs, and if needed for the payment of debts there is a mode pointed out by the act of assembly which the administrator is bound to pursue, “ for the real fund is not absolutely, but sub modo, assets in his hands: ” McCoy v. Scott, 2 Rawle, 222; Bakes v. Reese, 150 Pa. 44. Although the administrator may assume to act in his representative capacity in the management of the real estate and the collection of the income thereof, he is merely the agent of the heir: Appeals of Fross and Loomis, 105 Pa. 258; Walker’s Appeal, 116 Pa. 419. This rule has been strictly adhered to. The refusal of the court to apply it in Hoffman’s Appeal, 185 Pa. 315, was on the ground of estoppel, the administrator having collected the rents under an agreement with the heirs and included them in his account, 'and by his conduct having induced them not to resort to another tribunal until the statute of limitations had interposed a bar to a recovery against him. In this case the court finds that there was no agreement and that there were no facts to warrant an inference of the knowledge and assent of the other heirs.

The disposition of the costs of the audit is entirely just. A part of them were charged to the accountant, as his failure 'to keep proper accounts had made the reference to an auditor necessary, and the balance placed upon the estate for the reason that the audit had been needlessly prolonged by the appellees.

The decree is affirmed at the cost of the appellant.