Opinion
April 19, 1943.
May 10, 1943.
Trusts and trustees — Investments — Surcharge — Mortgages — Appraisement — Employee of trustee — Prior appraisement in lesser amount — Taxes for current year unpaid in March — Insufficiency of income — Objections not made at time of audit — Leases — Term — Act of April 26, 1929, P. L. 817 — Fiduciaries Act.
1. A person is not disqualified from appraising real estate, for the purpose of determining the propriety of a mortgage on it as a trust investment, by the fact that he is an employee of the trustee. [238]
2. Generally, a trustee is protected under the Act of April 26, 1929, P. L. 817, by an appraisement made by a competent appraiser and need not go beyond it. [238-9]
3. An appraisement by an employee of a trust company of real estate, made at the time a mortgage was taken by the trustee, which was more full and careful than another appraisement made by him approximately three months before, was Held not to be discredited by the fact that the prior appraisement was substantially lower, where it appeared that at the time of the first appraisement the only question under consideration was the security of a then existing mortgage in a much smaller amount. [238-9]
4. The fact that at the time a mortgage was taken in March the taxes due for that year were not paid was Held not to stamp the whole investment as imprudent, where it appeared that, in practice, mortgagors were not required to produce tax receipts until much later in the year. [239]
5. The mere fact that the real estate upon which a mortgage is secured was not earning the interest and taxes at the time the mortgage was taken does not render the mortgage an improper investment of trust money. [239]
6. Where no objection to a trustee's handling of a mortgage investment is made at the audit, an objecting party may not thereafter except to a finding of the auditing judge that there had been no mismanagement of the investment. [239-40]
7. Section 31 of the Fiduciaries Act of June 7, 1917, P. L. 447, which gives a testamentary trustee power to make a lease of real estate for a term not exceeding five years, and for a longer term by leave of court, is not applicable to a lease of real estate obtained by foreclosure of a mortgage held by a non-testamentary trustee in shares for various trusts. [240]
Mr. Justice ALLEN M. STEARNE took no part in the consideration or decision of this case.
Argued April 19, 1943.
Before MAXEY, C. J.; DREW, LINN, STERN, PATTERSON, and PARKER, JJ.
Appeal, No. 124, Jan. T., 1943, from decree of O. C. Phila. Co., Jan. T., 1913, No. 63, in Estate of Peter Beutel, deceased. Decree affirmed.
Audit of account of trustees. Before BOLGER, J.
John P. Jordan, with him George O'Dougherty, for appellants.
Philip A. Bregy, with him Homer H. Hewitt, Jr., and MacCoy, Brittain, Evans Lewis, for appellee.
The facts are stated in the opinion by VAN DUSEN, P. J., of the court below, VAN DUSEN, P. J., STEARNE, SINKLER, KLEIN, BOLGER and LADNER, JJ., as follows:
This trust held a mortgage of $26,500 on premises 3136-38 Market Street and 3139-41 Ludlow Street. It was overdue in March, 1930. Provident Trust Company, one of these trustees, at that time took a mortgage of $55,000 on the property, of which $26,500 was allocated to this estate, and the proceeds were used to pay off the existing mortgage of that amount. The new mortgage was taken on the basis of a contemporary appraisement of the property at $115,000. The appraiser was an employee of the Trust Company. This does not disqualify him: Saeger Estates, 340 Pa. 73; Harton's Estate, 331 Pa. 507.
The same appraiser had valued the property in January, 1930, at $65,000, when the only question under consideration was the security of the existing mortgage of $26,500. He testified that his second appraisement was more full and careful than the first appraisement. Generally speaking, the Trustee is protected under the Act of 1929 by an appraisement made by a competent appraiser and need not go beyond it. Of course, if circumstances come to the notice of the trustee which intended to discredit an appraisement, they are not entitled to rely on it. We do not think that the prior appraisement, under the circumstances, is such a fact as tends to discredit the later appraisement.
It is argued that the appraiser now says that he considered the "potentialities" of the property in making his appraisement, and that this means that he was acting upon future and not present values. Even if this is a correct conclusion, there is nothing to show that the trustees knew this.
At the time this mortgage was taken in March 1930, the taxes due for the current year were not paid. Technically, real estate taxes in this county are due on the first day of the year. In practice, however, mortgagors are not required to produce their tax receipts until much later in the year, usually September; more recently, July. Undoubtedly it would have been wiser for the trustee to have insisted upon payment of these taxes at the settlement, but failure to do so certainly does not stamp the whole investment as imprudent.
It is objected that the property did not earn interest and taxes at the time the mortgage was taken. This objection is met by the decision in Heyl's Estate, 331 Pa. 202.
A more serious objection is that interest due September, 1930, was not paid on time, and was not paid in full until two months later; that interest due March, 1931, was not paid on time and was paid in installments of which the last was paid June 2, 1932; that 1930 taxes were never paid; and that, nevertheless, the trustees did not take possession and control the income from the property until September, 1931. See Goldman's Estate, 19 Pa. D. C. 65.
The Auditing Judge found "that there has been no mismanagement of the investment." This finding is the subject of the eighth exception to the adjudication. At the audit the objecting parties followed the commendable practice of stating in writing the objections which they made to the conduct of the trustees. No objection on this ground was so made to the Auditing Judge. The trustees argue that if the question had been raised, they would have had an opportunity to show what went on in the interval. We think that the objecting parties are not in a position to except to this finding of the Auditing Judge.
Some time after the mortgage was foreclosed, the Provident leased the property for a ten-year term. One of the trusts under the will had terminated before the lease was made. It is objected that the trustee was without power to make this lease because of the provisions of Section 31 of the Fiduciaries Act. This Section gives a testamentary trustee power to make a lease of real estate for a term not exceeding five years; and for a longer term by leave of Court. This is an extension of the common law power of trustees, who could not give a lease extending beyond the term of the trust. See Frankford Trust Co. v. D. A. Schulte, Inc., 302 Pa. 421. This real estate is held in a mortgage salvage operation. It is not real estate of the testator, but is in theory personal estate. The statutory provision referred to does not apply to such a situation as this. This mortgage is held in shares for other trusts, as well as this one. The trustees are bound to do all that is prudent to save the investment, and there is no claim that the lease is imprudent. Even if the trustees had exceeded their powers, the result would be that the lease would be void, and it would not follow that the trustees must make good the investment.
The exceptants claim that a mortgage wherein a trustee is mortgagor by leave of court is not a legal investment. Without expressing an opinion on this point, attention is called to the fact that this trustee and mortgagee had authority to make non-legal investments.
Exceptions 1, 2, 3, 4, 5, 6 and 10 do not require serious notice. However, Exception No. 1, which refers to an immaterial clerical error, is sustained by agreement. All the exceptions, except No. 1, are dismissed, and the adjudication is confirmed absolutely.
Respondents appealed.
The decree is affirmed on the opinion of President Judge VAN DUSEN of the court below. Costs to be paid by appellants.