Commonwealth v. Messinger

Citations

• 237 Pa. 1
• 85 A. 26
• 1912 Pa. LEXIS 881

Syllabus

<p>Principal and surety — Trusts and trustees — Trustee in two capacities — Price act — Breach of condition — Discharge of surety.</p> <p>1. When an executor or administrator also occupies some other character with regard to the estate, such as guardian or trustee, it will be presumed that the property in his hands is held in that capacity in which he ought to receive it, and upon the termination of his duties in one capacity, the property is transferred by operation of law to his possession in the other so as to release the sureties on the bond in the former capacity from further liability.</p> <p>2. In an action against the personal representatives of a deceased surety upon a bond given under the Price Act to secure the proper application of purchase money by a trustee appointed by the court to sell real estate, binding instructions for the defendants are proper, where it appears that the principal obligor on such bond was also testamentary trustee of the lands so sold, that the decree surcharging him was based upon a finding that he as trustee under the will had received the full sum that as trustee under appointment of court he had received from the sale of the real estate, and that the particular breach declared upon by the plaintiff was of duty as trustee under the will. This is particularly true where it appears from the evidence that for a period of twelve years following the execution of the order of sale the cestui que trust under the will, who was use plaintiff in the action, had received from such trustee the interest upon the moneys derived from the sale of the real estate.</p>