Everett Warren and Henry A. Knapp, for appellants. Wm. H. Jessup, W. W. Watson, I. H. Burns, and H. M. Streeter, for appellee.

MCCOLLUM, J. The land in suit was included in the deed from Paul Aten to Martin Crippen, dated September 26, 1873, and it was all of the Turner tract that the former could convey to the latter. In 1882, and in at least seven of the eight years previous thereto, and directly following Aten's conveyance to Crippen, the land was separately assessed, by the proper officer, in the unseated list. In the first three years of the period thus defined, the assessed valuation of it was $108, or $3 per acre; in the fifth and sixth years $360, or $10 per acre; and in the seventh, eighth, and ninth years $540, or $15 per acre. In 1876 the land was sold by the county treasurer for taxes levied on one or more of these assessments, and A. D. Dean, as attorney for Martin Crippen, and on his request, became the purchaser of it. On the 8th of August, 1881, Dean conveyed the same to Crippen's administrator, who on the 18th of July, 1882, paid the taxes upon it for the years .1879, 1880, and 1881. While the land in question was separately assessed and valued as above stated, the land assessed to Martin Crippen was returned in the seated list as unimproved, and was valued in 1874, 1875, and 1876 at $5 per acre, in 1877 and 1878 at $2.40 per acre, and in 1879, 1880, 1881, and 1882 at $3 per acre. It is a reasonable inference from the above-recited facts that the Turner tract was separately assessed in the unseated list from 1874 to 1882, inclusive, and that the taxes levied on the separate assessments of it made prior to 1882 were paid by Martin Crippen or his estate. It may also be reasonably inferred from them that the separate assessments of it in the lifetime of Martin Crippen were made with his knowledge and consent, and that like assessments of it subsequent thereto were recognized and approved by his administrator. In 1884 that part of the Turner tract included in Aten's deed to Crippen was sold by the county treasurer for taxes levied on the separate assessment of it in 1882, and purchased by James M. Everhart, the plaintiff in this suit. His claim of title to it is contested by the defendants on three grounds: (1) The assessments to Crippen from 1874 to 1882 included it, and as Crippen or his estate, prior to the sale under which the plaintiff claims, paid all the taxes levied on these assessments, the sale was unwarranted and void. (2) If there was a valid assessment and sale of the Turner tract, the treasurer's deed of it "was so indescriptive as to be inoperative." And (3) the defendants were purchasers without notice or knowledge of any separate assessment of it. The main support of the first ground of defense lies in the fact that the acreage mentioned in the assessments to Crippen correspond substantially with the acreage mentioned in Aten's deed to him. This was undoubtedly a circumstance to be taken into

| consideration by the jury in determining whether the Turner tract was included in the Crippen assessments, but it was not in and by itself conclusive that their claim of inclu sion was well founded, nor fatal to the plaintiff's contention. "If the quantity in the assessment was too great, it does not follow that the disputed land was included, nor, if not enough, that it was excluded. The quantity returned and assessed would be a fact to consider in ascertaining if the land in dispute was a part of the tract assessed." Kramer v. Goodlander, 98 Pa. St. 370. The separate assessments and valuations of the Turner tract, and the payments by the Crippens, without protest or complaint, of the taxes levied thereon, were inconsistent with the inclusion of it in the assessment of the tract valued at three dollars per acre. These were matters proper for the consideration of the jury in determining whether the Turner tract was included in the Crippen assessments. Whether it was so included was a question for them to decide on the relevant and competent evidence in the case. This was the view taken of it by the court below, and this appears to have been in accord with the view of it entertained on the trial by the learned counsel for the defendants.

The defendants have not brought to our notice any decision of any court in Pennsylvania to support the second ground of their defense. They have cited adjudications of the courts of other states which seem to give color to it, but these were undoubtedly made in accordance with the legislation regulating and governing tax sales within their respective jurisdictions. The The numerous decisions of the courts of Pennsylvania relating to the sales of unseated lands for taxes are certainly not in clear accord with the adjudications referred to, and, while they may not cover the exact point in question, their trend is obviously adverse to this branch of the defendant's contention. In Miller v. Hale, 26 Pa. St. 432, as in this case, the treasurer's deed to the plaintiff was attacked as defective. This court, in its opinion, said: "The question, then, upon this deed, was whether it described the land assessed, and that was properly submitted to the jury as a question of fact. That land, by whatever name it was sold, was the debtor for the taxes imposed; and, if it was sold and conveyed to the plaintiff in satisfaction of the assessment, he acquired a good title. The name of the warrantee and of the township are circumstances of designation, but not conclusive. The identity of the tract assessed must be fixed to the satisfaction of the jury,-if by the warrantee and the township, very well; if by other circumstances of designation, equally well. 1 Watts & S. 166; 4 Harris, 404. The evidence here tended to identify the tract covered with that assessed and sold; and, having proved satisfactory to the jury, it must be so to us." In our case the defendants frankly admitted in their printed argument that the defect in the

deed was the result of the treasurer's mistake in describing the land, and that it was within the power of the court to correct it, or to consider that as done which ought to have been done; but, in connection with this admission, they characterized the plaintiff's claim as without merit, and maintained that the treasurer's error was therefore fatal to it. We cannot assent to this view of the treasurer's mistake, because, aside from the admission above stated, the evidence in the case clearly and indisputably identified the land described in the deed as the land assessed and sold, and now in question.

The specifications of error which relate to rulings upon offers of evidence are not sustained. The evidence admitted under these rulings was relevant to the questions already discussed, and proper for the consideration of the jury. As to the claim of the defendants that they were purchasers without notice of a separate assessment and sale of the land in question, it is sufficient to say that the treasurer's sale of it to Dean, as hereinbefore stated, was recited in Willard's deed to them, in his deed from the sheriff, and in the sheriff's deed to Smith, and that, at the time of the sheriff's sale to Willard, public notice of Everhart's title was duly given. The specifications of error are overruled. Judgment affirmed.

In re BARTOL et al.

(Supreme Court of Pennsylvania. Oct. 11,

1897.)

TRUSTEES INVESTMENTS.

AUTHORITY TO MAKE -LIABILITY FOR DEPRECIATION.

1. Trustees are not liable for losses resulting from the depreciation of authorized investments made in good faith, where they use all ordinary care in determining on the investment.

2. A will provided that the executors and trustees might, if they deemed it for the benefit of the estate, retain in their hands, as assets, any investments which "I may have and possess at the time of my death," without liability in case of depreciation or loss, etc. Held, that the trustees were not accountable for depreciation of shares of stock in a corporation, owned by testator when he died, held by the trustees as a part of the trust estate, on the ground that they had no power to invest any part of the fund in the stock of a private corporation, or because they had an opportunity, before the depreciation, to sell the stock for its full appraised value.

3. A railroad 30 miles in length was built in 1885, and had been running with a full equipment for three years, when, in 1888, it was decided to extend it 11 miles. The extension was completed prior to December 31, 1889, when it had 13 locomotives, 24 passenger cars, and 42 freight cars. Held, that in the fall of 1890 such road was "finished," within the meaning of a will authorizing trustees to invest in real estate and in first-class mortgage bonds of railroad companies whose railroads are finished and earning interest on their entire bonded debt, etc.

4. Especially were bonds which were secured by a mortgage which only covered the original 30 miles of the road bonds of a "finished" road, within such will, at the time they were bought by such trustees, in the fall of 1890.

5. The fact that they were second mortgage bonds did not render the trustees liable for de

preciation; the will not restricting the trusteesto first mortgage bonds, and both mortgages being a very small lien on the road.

Appeal from orphans' court, Delaware coun-ty.

Judicial settlement of the accounts of Henry W. Bartol and others, trustees for George E.. Bartol under the will of B. H. Bartol, deceased. From a decree dismissing their exceptions to and approving the auditor's report, except in one particular, the trustees appeal.. Reversed.

V. Gilpin Robinson, William C. Hannis, and John G. Johnson, for appellants. John F. Lewis and George B. Lindsay, for appellee.

GREEN, J. In the case of Webb's Appeal, 165 Pa. St. 330, 30 Atl. 827, we reviewed at some length the law as to the liability of trustees to be surcharged for loss arising from alleged negligence or fault in the administration of their trust estates. It ought not to be necessary to restate the law on this subject as it prevails in Pennsylvania, because it is so perfectly well settled and so entirely free from> doubt. But, as we are not able to reconcile the decision of the present contention with the law as we understand it, we will be obliged to make reference to some, at least, of the principal cases. In one of the earliest of these (Calhoun's Estate, 6 Watts, 185), the general doctrine was stated in reference to all classes of trustees in these words: "Executors and administrators or trustees, acting with good faith, and without any willful default or fraud, will not be responsible for any loss that may arise. All that a court of equity requires is common skill, common prudence, and common caution. Executors, administrators, or guardians are not liable beyond what they actually receive, unless in case of gross negligence; for when they act as others do with their own goods, and with good faith, and not guilty of gross negligence, they are not liable.

A court of equity, as is said in Thompson v. Brown, 4 Johns. Ch. 619, always treated trustees acting in good faith with great tenderness. In Knight v. Earl of Plymouth, 3 Atk. 480, Dickens, 120, Lord Hardwicke observes, if there was no mala fides, nothing willful, in the conduct of the trustee, the court will always favor him. For, as a trust is an affair necessary in the concerns between man and man, and which, if faithfully discharged, is attended with no small degree of trouble and anxiety, it is an act of great kindness in any one to accept it. To add hazard or risk to that trouble, and to subject a trustee to losseswhich he could not foresee, would be a manifest hardship, and would be deterring every one from accepting so necessary an office."

These principles have been constantly repeated and applied in very numerous cases from that time to the present. In the following cases it was held that the measure of dili-gence and care required of a trustee is that which a man of ordinary prudence would prac tice in the case of his own estate. Witmer's

Appeal, 87 Pa. St. 120; Eyster's Appeal, 16 Pa. St. 372; Fahnestock's Appeal, 104 Pa. St. 46. In Chambersburg Saving-Fund Association's Appeal, 76 Pa. St. 203, we said: "It is well settled that a trustee shall not be surcharged for a loss which has occurred, in case he has exercised common skill, common prudence, and common caution; but for supine negligence or for willful default he shall be held responsible." In Pleasant's Appeal, 77 Pa. St. 356, the executors were authorized to invest "in some safe and productive stock." They invested in the stock of the Bank of the United States. We said: "Under the powers given to the executors to invest, and an honest exercise of that power, we think it would be a very harsh application of law to their sound discretion, after this lapse of time, to hold the executors personally liable for the loss of the bank stock. They should not be held responsible for not possessing a knowledge and not exercising a forethought superior to the great body of intelligent and prudent business men." In that case the bank failed about a year after the investment, but we held that there was no liability for the loss, because the investment was apparently good when it was made. In Cridland's Estate, 132 Pa. St. 479, 19 Atl. 362, we sustained the adjudication of the orphans' court for the reasons stated in the opinion, among which was the following: "A trustee is not required to be infallible in his judgment, nor to possess the power of anticipating events not generally looked for. Common prudence and common skill are all that is demanded; and, if these are exercised, a loss arising must be borne by the estate which the testator, who is supposed to have contemplated such risks, has thought proper to confide to his care." We have held in a number of cases that an administrator is not chargeable with the consequences of a disastrous exercise of discretion, unless accompanied with such negligence as raises a presumption of willful default. Dillebaugh's Estate, 4 Watts, 177; Hughes' Appeal, 53 Pa. St. 500; Neff's Appeal, 57 Pa. St. 91; Derbyshire's Estate, 81 Pa. St. 18. It is scarcely necessary to continue the citation of authorities, which are very numerous, and all to the same effect. It is only important to determine whether they are applicable to the facts of the present case.

The assignments of error practically raise two questions of surcharge and one of costs. The first question of surcharge relates to the Birkbeck stock. The testator, at the time of his death, owned 1,600 shares of the stock of a corporation called John Birkbeck Company, Limited, whose business was the boiling of molasses for the manufacture of sugar. B. H. Bartol (the decedent) and John Birkbeck each owned one-half of the stock, and carried on the business with much success. Both the partr.ers died within a short time of each other, and a reorganization became necessary. As each of the deceased parties owned exactly one-half of the stock, it was deemed highly desirable by the accountants, trustees for George E. Bartol

and his children, under the will, to preserve the equality of ownership, and run no risk of disadvantage arising from a possible acquisition of a majority of the stock by the other parties in interest. In the distribution of the estate among the six parties entitled, one-sixth (266 shares) of this stock was taken for the trust estate of George E. Bartol, and these shares were subsequently held as a part of the trust estate. The business had been, and still was, very largely profitable, and heavy dividends were constantly earned and paid until the passage of the tariff bill of 1892, after which the profits were so seriously affected that the business was closed out. In the liquidation which followed there was a loss of $1,583.20 upon the stock held as a part of the trust, and for this the accountants claimed credit in their account. The auditor refused the credit on the ground that the accountants had an opportunity to sell the stock to the cestui que trust for its full appraised value, $8,333.33, and declined to do so, and thus lost on the liquidation the sum of $1,583.20, which the stock realized less than its appraised value. This appraised value was 25 per cent. in advance of its par value, and was made because of the large profits which had been realized from the business. The court below did not sustain the auditor in his reasoning for the surcharging of the accountants, but held that George E. Bartol should sustain the loss personally, and therefore the accountants, while being chargeable with the loss so far as it affected the body of the trust fund, should recoup their loss from the future payments to be made of the income to George E. Bartol. The ground upon which the court below held the trustees accountable was that they had no power to invest any part of the fund in the stock of a private corporation; but, because it was stock held by the testator in his lifetime and at the time of his death, the court further held that the whole estate of the testator should sustain the loss, and therefore the onesixth of the aggregate loss should be paid by George E. Bartol, and the other five-sixths by the other legatees. We think the learned court below fell into error in this view of the subject, by failing to regard one of the provisions of the will. That provision is in the following words: "It is my will that my executors hereinafter named and my said trustees may, in their discretion, if they deem it for the benefit of the estate, retain in their hands, as assets, any investments which I may have and possess at the time of my death, without liability in case of depreciation or loss, and that they shall not invest the funds in their hands in coupon bonds of any kind, and that all investments made by them shall stand in the rames of all of them." As the testator expressly directed that the trustees as well as the executors might, in their discretion, retain any of the testator's investments, without liability for loss from so doing, they certainly cannot be held liable for doing what they were explicitly authorized to do, without violating a positive provision of the will. We do not regard either

the reason given by the auditor or that given by the court as sufficient to warrant the surcharge in question, and therefore sustain the first seven assignments of error.

The second item of surcharge is the loss occasioned by the depreciation in the price of bonds of the Union Railway Company of Chattanooga, $5,360.30. This was an investment of trust funds made by the trustees in the fall of 1890 to the extent of $7,000. There had been an investment of $10,000 in these bonds made by the executors in May, 1888, after a very thorough investigation of the condition and affairs of that company; George E. Bartol himself participating in the transaction. The latter represented to the executors that his father had agreed to buy $5,000 of these bonds, but became sick before he paid for them, and that he (George E. Bartol) had paid the money for them during his father's illness, and asked to be reimbursed for his payment. This was done, and the executors made the investment of $10,000 as above stated. Afterwards, in 1890, the trustees, having some money to invest, consulted with George E. Bartol as to the investment. Mr. Henry W. Bartol, one of the accountants, testified before the auditor that George E. Bartol authorized the trustees to buy bonds at 108, and this statement was not denied by the latter. The bonds were selling at about that price at the time of the investment. them.

The trustees actually paid 107 for The trustees also made investigation through a number of sources as to the condition and character of the property, obtaining, among other things, a copy of Poor's Manual for 1890, with quite full information as to all matters pertaining to its physical condition and operation. The reports of its earnings and expenses for the previous year, 1889, were given, showing a surplus of $5,117.22 after all expenses and the interest on the bonds had been paid. Dun & Co.'s report made in May, 1888, was already in the possession of the trustees, showing a very favorable physical condition, with 30 miles of completed road, with a full equipment of engines and cars; a gross income of $92,000, and a net income of $40,800, for the year before; and the trustees obtained a number of letters of business men, acquainted with the property, highly commendatory in character, and certifying to its being a flourishing company, and its bonds a first-class investment. In 1890 the road had been extended 11 miles, making 41 miles in all, with a total bonded debt of only $600,000, of which the investment now in question was a part of the second $100,000 issued. There is very much of this testimony which it is not necessary to review in detail, because the decision of the court below does not turn upon that question. The learned court was of opinion that the investment was unauthorized, and therefore the trustees were liable to make good the loss which subsequently resulted. The clause of the will upon which this question turns is in the following words: "It is my will that my trustees may sell any of my investments, and 38 A.-34

may sell and resell any investments which they themselves may make when and as often as they may deem it advisable, and, further, that they shall have the right to invest and reinvest the funds which may at any time come into their hands in real estate, in first-class mortgage bonds of railroad companies whose railroads are finished and earning interest on their entire bonded debt, and in other corporate bonds (secured by mortgage), whether of a public or a private character; also, in state and municipal bonds; also, in bonds of individuals, secured by first mortgage or deed of trust on real estate in any part of the United States: provided, that they shall make no single investment exceeding in amount $30,000; the above investments to be in addition to such securities as are recognized by the laws of Pennsylvania as proper for the investment of trust funds." It will be observed at once that the authority to make investments conferred upon these trustees is very broad and complete, and it was intended and expressly declared to be in excess of the authority conferred by law. The investment, therefore, now in question, is not to be governed either by the limitations imposed by the Pennsylvania statute, or by any other test than that which is exacted by the will. Viewed by this alone, we have only to inquire whether the authority conferred by this will was transcended when these trustees purchased the bonds now under consideration. It is not at all disputed that they are mortgage bonds of a railroad company. It cannot be controverted that at the time of the investment the bonds were those of a company which was earning and paying interest upon its entire bonded debt, because in each of the three years preceding and including the one (1890) when the bonds were bought the company not only earned interest on its entire bonded debt, but there was a remaining surplus over and above the interest. This was positively proved, and not contradicted. Thus, by the testimony of the appellee O'Brien's report it was proved that in the year 1888 there was a surplus of earnings, after all interest was paid, of $9,161. For 1889 the surplus was $5,117, and for 1890 it was $708. In the nine months of the year 1887 ending December 31, 1887, the surplus was $10,395.03. So far, therefore, as this requirement of the will is concerned, the investment in these bonds was strictly within its terms. Both the auditor and the court below held that the road was not finished when the investment was made, and for that reason surcharged the accountants as to this item. The reasoning adopted by both seems to be that because in June, 1888, it was decided to extend the road, it was not a finished road. In point of fact, the road was actually finished in 1885, not only as to its track, but as to its equipment; and it was running on its whole length, and with a full equipment of engines, passenger cars, and freight cars, for fully three years before it was decided that it should be extended. Further, it was shown by Poor's Manual for 1890 that the

extension was completed, by adding 11 miles to the length of the road, and that the company then (December 31, 1889) had 13 locomotives, 24 passenger cars, and 42 freight cars. The argument that the road was not finished because at a certain time in its history it was decided to build an extension to it cannot be sustained. Assuredly, when a road is built, is fully equipped, and is actually running and doing all the business that comes to it, it must be regarded as a finished road. When an extension of its length was determined upon, the part that was finished before was finished still. That fact is not changed. The road still remains as a completed structure, notwithstanding an addition to it is to be made. Otherwise no railroad can be said ever to be a finished road, because it is always possible, and the fact is almost universally so, that railroads are extended in length beyond their original limits. Moreover, it is to be observed that the bonds in question were secured by a mortgage which only covered the original 30 miles of road which had been finished in 1885. It is matter of public history that all the large railroads of the country are constantly making additions and extensions of their tracks, and also increasing their equipment. To hold that such roads must be regarded as unfinished, for that reason, would be to antagonize the common-sense convictions of the whole business world, and would not be in accord with any legal principles or rulings of which we are advised. We are constrained to differ with the auditor and the court below on this subject, and must hold, as we do, that this road was a finished road when the present investment was made. This being so, the purchase of the bonds was entirely within the authority conferred by the will of the testator, and the trustees cannot be held liable for the subsequent depreciation in the price of the bonds. It must be conceded, under the evidence, that the trustees used all the care that a person of ordinary care and prudence would use in determining upon an investment of his personal funds. They not They not only obtained the published reports of the company, but consulted with the cestui que trust himself, and other business men who had means of knowledge and advised the loan. The point that these were second mortgage bonds, and therefore not first-class, is not well taken.

The will did not restrict the trustees to first mortgage bonds, and it does not at all follow that a second mortgage bond may not be a first-class security. In this case the first lien was a mortgage for only $100,000,-a most remarkably small charge upon a railroad of 30 miles in length. But the second mortgage was given for $200,000, for the very purpose of raising a fund to pay off the first mortgage bonds, and the whole increase of the debt was but $100,000; and the mortgage was a consolidated mortgage for the security of the whole $200,000, which also was a very small lien upon a road of the length that this was. The propriety of the investment must be judged as it was at the time it was made, and

not as viewed in the light of subsequent facts. Of course, these trustees could not foresee that a trolley road would be built through the same town, which would largely impair the business of this road, and they are not responsible for not possessing the quality of prevision which would anticipate such a result. All the authorities are to this effect. The testator's investments, which were very large and greatly diversified, contained a large number of consolidated bonds, the object of which was to absorb bonds of prior issue, and they were made without loss. There was no question as to the entire good faith and integrity of the trustees, and as to their good business qualifications. tions. The auditor and the court below found and declared repeatedly that they were without exception in these respects. Upon the whole case, we are decidedly of opinion that neither of the surcharges can be sustained, and we therefore reverse the ruling of the court below. The assignments of error are all sustained. In our judgment, there was no legitimate reason for imposing any part of the costs of the audit upon the trustees, and we therefore sustain the fourteenth assignment. The decree of the court below is reversed at the cost of the appellee, and the record is remitted, with instructions to correct the decree in accordance with this opinion.

SKOLFIELD v. SKOLFIELD. (Supreme Judicial Court of Maine. Oct. 26, 1897.)

DOWER-ASSIGNMENT - PRACTICE RECOMMITTAL OF REPORT-WRIT OF SEISIN.

1. When the report of commissioners selected to set out dower on a writ of seisin, under Rev. St. c. 103, § 22, is not accepted because of irregularities of procedure disclosed therein, it is not error for the court to recommit the report to the same commissioners to set out dower anew, in accordance with law."

2. In such case the commissioners act by virtue of their original appointment and under their original oaths.

3. When the commissioners set out to the demandant certain parcels of land "as and for dower," it is held to have been a sufficient assignment.

4. It is not necessary that the writ of seisin to set out dower should contain specific directions to the commissioners. Their duties are prescribed by law. It would be inconvenient, not to say impossible, to incorporate them all in the writ of seisin.

See Skolfield v. Skolfield, 34 Atl. 27, 88 Me. 258; Skolfield v. Robertson, Id.