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in. 3 D

426 SUPREME COURT [Harmbwrg

[Ex parte Cassel and Spayd.]

The inventory of the personal estate of the testator,
besides grain in the ground, &c. to which no definite
value was affixed by the appraisers, amounted to 26,916 44

Of this inventory the personal estate bequeathed to
the widow of the testator amounted to $3,588 23

Desperate debts were stated to amount to 14,044 05

17,632 28

$9,284 16

Leaving 9284 dollars 16 cents as the amount of available personal
estate, which, according to the inventory, came to the hands of the
executors, besides the grain, &c. above mentioned.

The only accounts settled in the orphan's court of Dauphin county,
by the executors, are the following by John Landis, who states him-
self to have been the acting executor.

No. 1, settled the 4th of March 1816, in which he
charges himself with having received from the estate $5,939 74 J

No. 2, settled the 5th of March 1816, in which he
charges himself with having received 190 CO

$6,129 74j

No notice is taken in either of the accounts of the inventory; nei-
ther does it appear that the whole amount with which he charges
himself formed part of the inventory.

The first of the above mentioned accounts was filed in the regis-
ter's office on the llth of December 1811, and in the charges to the
accountant he refers to an account or accounts " stated and settled by
the court of common pleas and filed of record according to the provisions
of the will of the testator." No such accounts thus referred to were
exhibited to the auditors, who were called upon to charge John
Cassel with the amount of the inventory. They were told the ac-
counts could not be found. By the second account, a balance re-
sulted in favour of the accountant, John Landis, of 3158 dollars 52
cents, upon which the sale under the order of the orphan's court in
1818, supposed to be on account of debts of the testator already
referred to, was made.

The auditors have made out this statement of the real and per-
sonal properly of the testator, with a view of presenting the character
of the estate and the difficulties in the way of a satisfactory settle-
ment, the facts being imperfect and disjointed, the accounts of the
executors and trustees being intermingled, and no settlement which
can be considered a starting-place having been made in twenty-four

After having given the instructions to the accountants, as has
been mentioned, for the purpose of obtaining a detailed account of
the receipts and disbursements of John Cassel, during the period he
was principal, arranged in order and classed, he presented the ac-
count herewith submitted.

. 1834.] OF PENNSYLVANIA. 427

[Ex parte Cassel and Spayd.]

The whole amount of his receipts for seven years and
eight months, as stated in this account, is $5,987 57

In which is included three years rent of
the mill, in advance from 1814 to 1817, 2,000 00

Wood sold, 13385

Old debt, &c. 1,09646

3,230 31

$2,757 26

Leaving 2757 dollars 26 cents, for his receipts on account of the pro-
ceeds of the trust estate during the said period ; a sum palpably below
what must have been produced. With this deficiency on the one
hand, and on the other, a plain, honest man, with a mutilated Ger-
man account book, which he stated upon his oath contained a true
history of his receipts and disbursements, the auditors were called
upon to decide whether he. was liable for the deficiency, and if liable,
then to find the amount of the deficiency. It is somewhere well
said, "that we cannot begin to reason until we are furnished other-
wise than by reason with some truths on which we can found an
argument." In this case, the auditors are not furnished with such
distinct facts as will enable them to draw satisfactory conclusions.

As to the question whether the accountant is liable for the defi-
ciency, it may be remarked, that he stated to the auditors that John
Landis and William Crabb, the former a co-executor and trustee,
and the latter a trustee, elected 5th of December 1807, were active
men, and transacted the principal business, that the accountant be-
ing unable to understand the English language, the accounts were
kept under their supervision, and that he kept a statement in Ger-
man of that part of the estate which came to and passed through his
hands. From an examination of the books thus kept, it appears, in
corroboration of the statement made by the accountant, that John
Landis did receive and pay money at various times, and to a consid-
erable amount, which should have passed according to the directions
of the will, through the hands of the accountant. Now, although
this manner of transacting the business, is not in conformity with
the rules laid down in the will for the government of the officers,
particularly when the orphan-house shall be in operation, yet it was
very reasonable, perhaps right, that a competent co-trustee should
settle claims and transact business in which there was a common
interest, and for the performance of which duties the agent appointe^
by the testator was, from the want of education, incompetent ; more
especially, as the other trustees might be held responsible for his
acts, under that clause of the will which directs that he shall be sub-
ject to their advice, and conform to their directions. Whether the
other trustees took advantage of this disability of the principal, and
if they did, to what extent, and whether they made it subservient to
other purposes than those of a faithful administration of the trust,
and what amount of the proceeds of the trust estate passed through

428 SUPREME COURT [Harrisburg

[Ex parte Cassel and Spayd.]

their hands, are matters which, from the evidence before them, the
auditors are unable to determine.

As to the amount of the deficiency, there is equal uncertainty.
The annual value of the estate does not appear to the auditors, and
they are left to conjecture.

As the testator was an old man for some years before his death,
and kept this large property under his own supervision and care, it
may be presumed that the estate, when it came into the hands of the
trustees, partook in some degree of the character of him who left it.
The accountant stated to the auditors that the mill and farms were
out of repair, and to a great degree unproductive ; that Shipler, one
of the millers, recovered damages because of defects in the mill, and
that he could not go on successfully with the management of the
estate for want of means. There is reason to believe that it is an
expensive estate to keep in repair.

He also stated that he settled an account for one year of his ad-
ministration in the court of Dauphin county, according to the direc-
tions of this will: this account it seems cannot now be found, neither
can the amount included in it be ascertained.

From the manner in which the accountant kept his accounts, and
the understanding he had of his duty, it appears that in settlements
with persons having dealings with the estate, he only noticed the
balances after setting off produce, &c. against work, &c. : in this way
a portion of the deficiency may be accounted for, but the amount is

Under these circumstances, the auditors, after a patient and la-
borious investigation, came unanimously to the conclusion, that it
would be right and equitable to take the said account of John Cas-
sel as a faithful exhibit of that portion of the trust estate which
passed through his hands, and that he ought not to be held liable
for any thing more. It appeared satisfactorily that he did not add
to his private estate by the office he held. in the institution, and that
he is a man of honesty, industry and truth. It may be also well to
add that near sixteen years have elapsed since he resigned; that the
principal part of these transactions took place upwards of twenty
years ago; and that in 1821 his account, as principal, was finally set-
tled and adjusted by the trustees, who were supposed to be the only
competent authority for the purpose.

It appears that in 1814, when John Cassel resigned the office of
principal, the trust estate was indebted as follows :

Debts due to a number of persons, which appear to have
been contracted since the death of the testator, $2,001 39

Judgment in favour of Thomas Duncan, Esq. 2,100 00

Judgment in favour of Charles Smith, Esq. 3,868 60

Due John Cassel, including his salary and the wages
of his children, &c., which in March, when the same was
liquidated by the trustees, amounted to 2,900 00

$10,869 99

JV<w. 1834.] OF PENNSYLVANIA. 429

[Ex parte Cassel and Spayd.]

Debts due in 1814, which had been contracted by the testator:
Oberlander's judgment, $4,231 63

The balance due John Landis in 1816, when he set-
tled his account as executor, supposed to consist of debts
due by the testator, 3,158 52

$7,390 15

Now either the testator was greatly mistaken in the value of his
estate and the amount of debts due by him, or there was gross mis-
management on the part of the agents. That the former was in a
degree the case, it is reasonable to believe ; the strong presumption,
however, is, that the latter was the fact to a considerable extent.
Accounts as already staled were settled, which are not to be found;
what amount of debts were paid, and what amount of proceeds of the
inventory or of the trust estate were charged in these accounts, can-
not from the evidence before the auditors be ascertained. The ac-
counts of the executors are blended with the accounts of the trustees,
and much of the mismanagement may have originated with the
executors, who are not before the auditors. The fact is, that the
transactions of those years are involved in so much obscurity, doubt
and uncertainty, as give the mind inquiring for the truth no resting
place. The auditors, however, are satisfied that neither fraud or
deception has been traced to the accountant, but that he appears
in the honesty and simplicity of his nature to have industriously la-
boured with his family for upwards of seven years, upon the trust
estate, under very untoward circumstances; that he was guided by
a sincere desire faithfully to discharge his duty, and that he did not
increase his private estate. His conduct, too, before the auditors,
has been broadly marked by candour and uprightness.

A part of the testator's estate, in consequence of the verdict against
I he codicil, descended to his heirs; and as a part of the trust estate
was sold for the payment of debts, it was strongly urged that the
accountant should be held liable for the value of this descended es-
tate, because it was not appropriated to the payment of debts for the
relief of the devised estate. The accountant declares that he was
ignorant of the character and value of the descended estate, as he in
the discharge of his duly believed he had nothing to do with it.

Granting the principle that the descended estate is first liable for
the payment of debts, an insuperable difficulty arises in this case.
From the evidence, and the manner in which the accounts of the
executors were kept and settled, it cannot be ascertained whether
the personal estate of the testator was, or was not adequate to the
payment of all his debts; and supposing it was, would the rule in-
clude debts contracted by the executors. The law seems to say that
it would not, and reason and justice do most heartily concur. It
would be most unrighteous to hold the descended estate liable for
debts created by the executors to defeat the heirs by the establish-
ment of the will.

The next in order is (he account of Christian Spayd, who is now

430 SUPREME COURT [Hanislvrg

[Ex parte Cassel and Spayd.]

and has been the principal since February 1814, fifteen years and
eight and one half months, the account being taken up to the 26th
of October 1829.

It is proper to remark here, that from the evidence, the estate,
when it came into the hands of Mr Spayd was not in prosperous
circumstances. There were debts due, which with the interest that
accrued before they were paid, amounted to 18,260 dollars 14] cents.
The mill, which should have been the most productive part of the
estate, was rented for three years for the payment of 2000 dollars
part of those debts and the expenses of building a new dam, stated
by the accountant to have cost between 4000 and 5000 dollars, and
the keeping the same, the mill, the race, &c. in repair, amounted
to a large sum of money. One of the farms was rented to John
Cassel for the payment of a debt due to him, and the other farms
required repairs.

The auditors, after having examined the accounts first presented,
and the books and the manner of keeping them, directed a classifi-
cation of the items to be made and so arranged as to exhibit the re-
ceipts and expenditures in an intelligible form. The account here-
with presented was the result of this order. In its present form, it is
not perfect in its arrangement. In the receipts for grain, &c. sold,
are included items, such as balances upon the sales of real estates,
&c. which do not properly belong to this head ; and others which do
belong to- it are excluded, such as the hay and grain, feed to the
stock of the accountant, and fare used in his family, which in a pe-
riod of near sixteen years would amount to a considerable sum. It
was not practicable, from the manner in which the accounts were
kept, to ascertain the sums annually received from the estate.

The aggregate is presented, and upon making allowances for im-
perfections alluded to, and comparing it with the testimony, the au-
ditors are of the opinion that it amounts to a satisfactory return.

Under the head of repairs are included a payment for wheat, for a
horse, for clover seed, &c. and for chopping the wood which was
sold, which if deducted from the credit for repairs, together with the
costs of the new mill-dam, would in the opinion of .the auditors leave
a sum by no means unreasonable for ordinary repairs during the
period, when the condition of the estate at the time the accountant
entered upon it is taken into view and compared with its present con-
dition: beside?, the accountant had made a return of personal pro-
perty in his use belonging to the trust estate amounting to 813
dollars 87^ cents, as per schedule, inserted on page of the account.

The auditors have deducted from the credit asked for household
expenses such items as in their opinion do not come within the pro-
vision in the will for a free table, which leaves a credit on this ac-
count of 9008 dollars 51 cents, including articles furnished the widow
of the testator, 445 dollars 92 cents, which were allowed by the au-
ditors, amounting to 8562 dollars 59 cents.

In this sum of 8562 dollars 59 cents are included a number of
items which do not properly belong to this head, so that in the opinion

JVot>. 1834.] OF PENNSYLVANIA. 431

[Ex parte Cassel and Spayd.]

of the auditors the amount forhouse expenses and servants' wages for
near sixteen years, for which the credit is admitted, is reasonable, parti-
cularly when the fact that the principal boarded the hands employed
in building the dam and repairing the estate is taken into consideration.

The corrections and deductions made by the auditors appear
upon pages 69 and 70 of the account, and exhibit a balance in favour
of the accountant of 6378 dollars 97-| cents.

The other items in the account do not in the opinion of the audi-
tors require any explanation. They were all examined in detail.
There were thirty-four exceptions filed to this, and thirty-five excep-
tions to the account of John Cassel. These exceptions were all pa-
tiently and particularly investigated and examined in connexion with
the testimony, and the result appears in this report, which has been
unanimously adopted, and in the accounts annexed.

The statement under oath of George Lowman, the other trustee,
whose account was directed to be taken, is herewith submitted.
There was no evidence produced that any part of the trust estate
came into his hands, or that he made any payments.

The interrogatories of the counsel for the petitioners, and the an-
swers for the accountants, and the parol and documentary testimony
presented to the auditors accompany this report.

It is but justice to add, that the accountants evinced before the audi-
tors a disposition freely to give every explanation in relation to this
complicated settlement in their power, and that their conduct was
marked by a degree of frankness and candour worthy of commenda-

Witness the hands and seals of the auditors at Harrisburg, the
22d November 1830.


Recapitulation of the account of John Cassel, late principal under
the will of George Frey deceased :

Dr to the estate.

For amount received for produce of the farm, and for
work done by the labourers belonging to the farm, $718 97

Received for wood, &c. sold, 133 85

For ground rent, 280 60

From the mill, 2,518 97

Received for rent, 1,23872

For old debts, 1,096 46

Total receipts, $5,987 57

Balance due accountant by the estate on 26th January
1814, when accountant resigned his situation as princi-
pal, 521 06

$6,508 63

432 SUPREME COURT [Harrisburg

[Ex parte Cassel and Spayd.]


Amount paid for repairs to the estate, $498 95

Paid for family expenses, &c., 276 91

Paid for servants' wages, 1,293 66

Amount of travelling and other expenses incurred in

attending to lawsuits, 141 36

Paid for taxes, 247 56
Paid for instruments and articles necessary for the mill

and for the cultivation of the estate, 628 70

Amount paid for old debts, costs, &c., 3,421 49

$6,508 63

Accountant further charges himself with a balance of
money received by him for the institution, and not appro-
priated, $160 00

To an appraisement of sundry goods taken by account-
ant on the 5th of February 1816, 516 50

To four years rent on town land, at 300 dollars per
year, 1,200 00

To three and a half years, at 200 dollars, 700 00

Balance due accountant, 71 1 84i

$3,288 341

Balance in favour of accountant on preceding settle-
ment with principal and trustees, less $5 49|, 515 56i

From March 7th, 1821. By seven years and eight
months wages as principal, viz. from 1806 till 1814, at

100 pounds per year, pursuant to will, 2,017 78

Wages for two girls and one boy for seven years and

eight months, 550 00

Seventy bushels of wheat furnished, 105 00

Fifty bushels of rye, 50 00

Fifty bushels of corn, 25 00

Fifty bushels of oats, 25 00

$3,288 34

Upon the above balance interest was allowed till 7th
March 1821, viz. $288 15

Balance, 711

$1,000 00

To discharge this balance of 1000 dollars, a tract of land be-
longing to the estate of George Frey deceased, was leased to John
Cassel the accountant, for the term of eight years from the 1st of
April 1821, which term expired on the 1st of April last, viz. April
1st, 1829.

Jfov. 1834.] OF PENNSYLVANIA. 433

[Ex parte Cassel and Spayd.]

Recapitulation of the account of Christian Spayd, present princi-
pal under the will of George Frey deceased :

Amount of grain and hay sold, $7,908 46

Wood sold, 2,486 90

Ground rent, 1,403 00

Rents of mill and real estate, 8,083 74

Sundries not included in the above, 2,169 64

Receipts of saw-mill, 3,935 64

Error on credit side, 30 00

>,017 38
Balance due accountant, 4,840 72

30,858 10

Accountant further adds 41 88 dollars 94 cents for services as prin-
cipal, making a balance in his favour of 9029 dollars 67 cents.
Accountant asks credit for

House expenses, $11,42871

Repairs,- 12,039 49

Taxes paid, 1,615 19

Paid on account of debts, 1,324 73

For tuition for institution, 1,053 91

Outstanding debts charged, 842 97

Expense of building saw-mill, 2,493 70

Errors on debtor side, 59 40

),858 10

Exceptions to the report of the auditors appointed by the supreme
court to examine the account of Christian Spayd, principal under the
will of George Frey deceased :

1. They should have charged him with all the proceeds of the
trust estate which he received or might have received, and especi-
ally with that part of the same occupied by John Cassel from the
spring of 1814 until 1829, viz. 2900 dollars, which last sum they
should also have disallowed, and not credited.

2. They should have disallowed his credit for outstanding debts
to the amount of 570 dollars, because they were bound by the statute
of limitations.

3. He should be charged with money due the estate by Thomas
Duncan, Esq., George Fisher, Esq. and E. Greenough, Esq.

4. They should have charged him with goods taken by John Cas-
sel after his resignation as principal, amounting to 516 dollars 50

5. They should have charged him with the balance due the estate
by John Cassel.

6. They should have disallowed his credit for moneys paid and
goods furnished Mrs Frey, amounting to 690 dollars 4 cents.

7. They should have disallowed all credits for which vouchers

III. 3 E h-

434 SUPREME COURT [Harrisburg

[Ex parte Cassel and Spayd.]

were not produced, as the same will appear on his account, the items
for which vouchers were produced being marked with the letter R.

8. They should have disallowed his credits for household expenses,
amounting to 11,428 dollars 71 cents.

9. They should have disallowed his charge of 12,039 dollars 49
cents for repairs, as unreasonable and extravagant.

10. They should have disallowed his credit for money paid F.
Miller for tuition and boarding, amounting to 1053 dollars 91 cents,
because the school never was conducted as prescribed by the will.

11. They should have disallowed altogether his charge for ser-
vices as principal, viz. 4188 dollars 94 cents.

Exceptions to the report of auditors appointed by the supreme
court to investigate the account of John Cassel, principal and trus-
tees undej the will of George Frey :

1. They have not charged John Cassel with the amount of the
inventory of George Frey's personal estate, 9284 dollars 16 cents of
which the auditors, on page 6 of their report, admit to have been

2. They have not charged him with the whole of the rents, issues
and profits of the trust estate, exclusive of the mill, which he received
or should have received.

3. They have not charged him with the rents, issues and profits
of the mill. During the years 1806, 1807, 1808 and 1812 he ac-
knowledges no receipt from the mill, and but 518 dollars 97 cents
during the years 1809, 1810, 1811 and 1813.

4. They have not charged him with ^2666 dollars 67 cents, the
proceeds of the sale of the Beaver Dam tract of land in Union county,
though he acknowledges that he joined in the sale of it; nor with
the rents of said farm from 1806 until the sale in 1812.

5. They have not charged him with all the ground rents which
were or should have been received by him.

6. They have not charged him with 754 dollars 92 cents received
from John Landis, as appears by said Landis's account, filed Decem-
ber 1811.

7. They have not charged him with 1055 dollars 4 cents for grain
furnished him by Bucher, and settled for by Christian Spayd.

8. They should have disallowed his credit for money paid by him
to F. Miller for tuition and for his boarding, amounting to 543 dol-
lars 96 cents.

9. They should have disallowed the credits on pages 5 and 7 of
his account for family expenses, amounting to 276 dollars 91 cents,
they not being the produce of the trust estate, and the institution
not being established ; until which time he was not entitled as prin-
cipal to a free table.

10. They should have disallowed the credits on page 25 of his ac-
count for wheat purchased, amounting to 528 dollars 45 cents.

11. They should have disallowed his credits for 1293 dollars 66
cents, for servants' wages.

12. They should have disalloweJ 515 dollars 56| cents, his bal-

JVov. 1834.] OF PENNSYLVANIA. 485

[Ex parte Cassel and Spayd.]

ance claimed on settlement on page 35 of account, not being just,
and not legally ascertained.

13. They should have disallowed his credits for wages for two
girls and a boy, amounting to 550 dollars.

14. They should have disallowed his wages as principal, amount-
ing to 2017 dollars 78 cents, he not being in justice entitled to that
sum, and the institution never having been established; and because
he was guilty of gross misconduct in the management of the estate,
and did not manage the same as directed by the will of George Frey

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