dissenting. — I dissent from the opinion of the majority insofar as it sustains the following exceptions :
1. Exception to Surcharge re 5512 Woodland Avenue Mortgage
The majority sustain the exception to the surcharge because the trustee’s dereliction is said to have been a mere error in judgment. I believe there was infinitely more than a mere error of judgment. This because the trustee failed to ascertain essential facts upon which to base a judgment. Common skill, common prudence, and common caution require a trustee to ascertain with the reasonable diligence of an ordinarily prudent man all the facts necessary to be known before declining an offer for nonproductive property. This the trustee has neglected to do. To appreciate the extent of this trus*198tee’s neglect in this regard, the facts found by the auditing judge must be stated more fully than in the majority opinion.
The trustee, in 1924, invented $5,500 in a first mortgage secured on 5512 Woodland Avenue, then appraised at $9,500. Four years later (March 7, 1927), W. Moeller, trustee’s appraiser, reexamined the property on an application for the extension of the loan, and then appraised it at $7,000, $2,500 value of ground and $4,500 of improvements. He reported the property had been vacant for two years and recommended the mortgage be called. On November 29, 1928, the same appraiser reported the dilapidated condition of the property in the following detail: “The heater is in poor condition, paper poor, most of it falling off; roof in poor condition and leaking; spouting rusted out; glass broken; bricks loose on chimney; frame of iron outside cellar door rusted out; tile loose and coming off bathroom; paint poor.” The report adds: “Woodland Avenue in this section is dead. There are a number of vacant properties on Woodland Avenue from Fifty-third to Fifty-sixth. Most of them modern. I do not think you could interest anyone in buying this property in its present condition. If repairs were made, and property put in fit condition, I doubt if you could get the cost out of it.” Thus even a year before the financial collapse of 1929 the property was considered hopeless and without a future, and not likely to bring the investment.
The property was foreclosed in March 1929. It was estimated it would cost $700 to put the property in tenantable condition. There was no money available in the trust to make repairs. In fact, there was an overdraft therein due the trustee. Not being bound to advance its own money, there was no means of paying for repairs so the property continued vacant.
On May 26, 1930, trustee received an offer from Frederick Conard whose letterheads showed his busi*199ness to be that of a registered plumber. He offered $4,500 for the property “as is”. The last previous appraisement was made two years before, at $7,000. The trustee was even then warned by that appraiser that the property could not be sold unless repaired and even then it was not likely that the cost could be realized, and that the neighborhood was dead. An ordinarily prudent man, with this warning before him, would have at once asked for a reappraisement and sought information as to whether conditions had become better or worse. But no new appraisement was directed by the trustee’s officer in charge, and this despite the financial collapse of 1929 which intervened between the appraisement of 1928 and the offer in 1930. Then without any attempt to negotiate for a better offer, or ascertaining whether it was cash or not, or even quoting a counter-price, the accountant’s officer tersely declined the offer. Would an ordinarily prudent man have so dealt with his own property? Had the trustee’s officer in question examined its files, he would have seen the warning of the last appraiser who recommended the sale of the property as is. Surely such warning called loudly for a reexamination and reappraisement in light of the offer and the possibility of further depreciation during the intervening two years. If the officer had looked at the files and failed to order a reappraisement, this was clear neglect. If he never looked at the files, then that was even worse neglect.
The suggestion that accountant’s real estate officer (now deceased) was conversant with values and considered the property worth $7,000 is of little importance or weight. No real estate officer’s armchair appraisement, if such there was under the circumstances here present, can excuse the failure to heed the warning in the trustee’s own records of the actual appraisement made two years before.
Now, of course, no trustee should be surcharged for a mere error of judgment or because the market price *200of trust property declined due to circumstances beyond his control. Here, however, the trustee was guilty of supine negligence. Even without the warning lodged in its records, there would have been doubt whether relying on the two-year-old appraisement made before the financial collapse of 1929 was an exercise of common skill, prudence, and caution.
Had the officer who received the letter from the businessman in question simply picked up the telephone, he could have learned what Mr. Conard later testified to before the court, that his offer contemplated the payment of all cash, and was in the highest degree bona fide. Surely no ordinarily prudent businessman would have refused such an offer offhand, especially where, as here, there was a history of long vacancy with no funds to put the property in a tenantable condition. Clearly this must be viewed as a case not of erroneous judgment, but as one wherein a disregard of the plain duty indicated by the circumstances of the case caused the loss. If authority be needed to support this proposition, it will be found in Hart’s Estate (No. 1), 203 Pa. 480, 485, 486, and Chambersburg Savings Fund Association’s Appeal, 76 Pa. 203.
The majority opinion attempts to bolster its argument by posing the question: “Suppose the property had been sold for $4,500, how could the trustee have met the reproach of the parties that it had been sold at a price far below the valuation which the trustee had put on it?” The answer to this question is clear. If the reappraisement had justified the sale, the trustee would have had absolute protection. Moreover, the record shows that this trustee had been requested by the life tenants to sell it at the first opportunity so as to convert a non-income-producing investment into an income-producing one. Consulting the life tenants upon receipt of the offer would have safeguarded the trustee against future complaints. The trustee, however, chose to brush the offer off without, so far as the *201record shows, giving it any intelligent consideration. Thereafter the property remained vacant for eight years without any further offer until January 1939, when it was sold for $1,500 to a tenant to whom, in November 1938, it had been rented “as is” for $15 a month. If there can be no surcharge under the circumstances here recounted, then, no matter how carelessly a trustee handles matters of this kind, beneficiaries may always be denied justice on the specious plea that the trustee merely made an error of judgment.
I would dismiss the exception.