Denmead v. Denmead

Bryan, J., delivered the opinion of the Court. By the order of the Circuit Court, passed on the 26th of J une, 187 6, the appellant was allowed a commission of seven and a half per cent, on all his receipts. The auditor’s accounts, filed June 6th, 1883, allowed him such commissions, but the appellee excepted to the allowances, and these exceptions were sustained. The appellant had an absolute right to these commissions by the terms of the decree, subject to be forfeited for causes which do not exist in this case.

He had waived them in the accounts which had been stated previously to those in question. But this waiver was entirely a voluntary matter on his part. We find in the record no evidence which establishes a contract that he should relinquish them; and we do not wish to be understood as intimating that such a contract could be enforced in the face of the decree, by objections to the auditor’s account. It is not necessary to decide this question.

In the ■ opinion of the learned Judge of the Circuit Court, the appellant was equitably estopped to claim these commissions by the ³²⁴ effect of the recommendation of certain persons, including the appellee,' that the appellant should he appointed trustee to sell the property mentioned in the case of Denmead vs. Denmead, instituted in November, 1881; and by the decree of the Court making the appointment in accordance with the recommendation. This latter case originated, it will be seen, many years after the appellant’s appointment in the present case. The recommendation states, among other things, that the persons who signed it have always understood, and do believe that Francis Denmead, (this appellant), while trustee for Jane Broadbent and Edward Denmead, has never received one dollar for his services as such ;• that the commissions, whenever allowed .him, were passed over to said cestuis que trust, because of their needy .circumstances, and that the management of said trusts have been gratuitous on his part, from beginning to end.' ’And the decree-of the Court appointed Francis Denmead trustee to make the sale. The recommendation states a number of reasons for this appointment; such as: that the proposed trustee was the representative of