In Re Joan Grasty's Estate

Adkins, J., delivered the opinion of the Court. The sole question in this case is whether income from a trust estate, paid by the trustees to the guardian of an infant during the minority of the infant, is income within the meaning of section 184 of article 93 of the Code, on which the guardian is entitled to commissions. The language of that section is as follows: “Every account of a guardian shall state his expenditures in maintaining and educating his ²⁴¹ ward, not exceeding the income of his estate, unless allowed by the court; and for no balance of money in his hands shall he be charged interest, unless he shall consent to take the same on interest, but the court may direct him to invest the same, and for the trouble and care of such guardian the court may allow any commission not exceeding ten per cent, on the annual income of the estate.” Charles H. Grasty adopted Joan Clark Grasty as his daughter, and in his lifetime executed two deeds of trust by which he conveyed certain securities to the Bankers’ Trust Company of Xew York and to the City Bank Farmers’ Trust Company, formerly known as the Farmers’ Loan & Trust Company of Xew York. In the deed to the Bankers’ Trust Company he directed the trustee to “collect, recover and receive the issues, interest, income and profits thereof, hereinafter called fincóme,’ ” and, after deducting expenses and the commissions of the trustee, to pay over said income (a) to himself for life; (b) after his death to his wife for life; (c) after the death of his wife to the guardian of Joan C. Grasty during her minority for her benefit; (d) after her becoming of age, to Joan C. Grasty for life; (e) after her death to distribute the principal to her issue, if any, and, if none, to others designated in the deed.

The provisions in the deed to the Farmers’ Loan & Trust Company were the same, except that, after the death of the settlor, $1,200 per year of the income was to be paid to Joan during the life of his wife, and, after the wife’s death, as in the first-mentioned deed. Mrs. Grasty was named as the guardian of Joan, and certain others were designated as her successors. Mr. Grasty died in 1924, and Mrs. Grasty in 1930. Joan was then ten years old.

The designated guardians to succeed Mrs. Grasty declining to serve, the Maryland Trust Company, the appellant, on February 15th, 1930, was appointed guardian. On April 1st, 1933, the appellant filed a petition in the Orphans’ Court of Baltimore City setting out the above facts, and further alleging that from time to time under orders of court it has invested funds, employed persons to ²⁴² take charge and custody of said infant in the United States, England, and France, has paid various obligations incurred on behalf of said infant, and has in general exercised supervision and control over the estate of said infant under the direction of court; that the suras received by the petitioner from said trustees have been considered and have been expended under the orders of court as income, as will appear from the reports, petitions, and orders heretofore filed; that the petitioner filed its first guardian account on August 14th, 1931, wherein it was shown that it had received from the said Bankers’ Trust Company the sum of $5,938.38, and that it was allowed the usual commissions of five per cent, upon said amount; that the petitioner files with its petition its second guardian account showing, among other things, that since the filing of its first guardian account it has received as income sums amounting to a total of $16,393.82, of which $2,505 has been received as interest upon investments in bonds purchased by it, $8,487.59 from the Bankers’ Trust Company, and $5,401.23 from the City Bank Farmers’ Trust Company; that petitioner has been advised by the auditor of this court that commissions are not payable upon the income received from said trustees, and that the only sums upon which petitioner is entitled to receive any compensation are the sums received from said investment in bonds, amounting to $2,505, or a total commission of $125.25; that petitioner has received, cared for and expended the sum of $16,393.82 as aforesaid, and has had the responsibility for caring for and expending such sums, which were denominated income by the trust indentures under which they arose, which indentures were designed by the settlor to provide income for the maintenance and support of said ward; that commissions on the income arising from the bond investments made by it would amount to' less than 77/100 of one per cent, upon the amounts actually received and cared for by it. The prayer of the petition is for an allowance of commissions upon the full amount of income collected since the filing of the first account. ²⁴³ On. this petition this court passed an