Whyte v. Dimmock

Alvey, J., delivered the opinion of the Court. Neither the original decree of 1861, nor the subsequent order of 1870, appointing the appellants trustees in the place of the former trustee, nor the audits that have been stated and ratified in the case, are before this Court for review. The only audit involved in this appeal is the last, upon which the order was passed overruling the exceptions of the appellants, and sustaining the exception of the appellee, and from which the present appeal has been taken. The original decree of 1861 prescribes the law of the case, and the sole question presented here is, whether the order appealed from is in accordance with the proper construction of the terms of the original decree.

By that decree, a rate of commission of five per cent, on the' amount of “ all collections which he (the trustee) may make as trustee of said estate, and also, a further commission of five per cent, on the amount of all disbursements and investments which he has made or may hereafter ⁴⁵⁵ make,” was fixed as proper to be allowed to tbe trustee of tbe estate. And in the order of 1810, appointing the appellants as trustees, this provision of the original decree was referred to as fixing the rate of commission to he allowed. The Court below was of opinion, and so held, that payments over to the cestui que trust of moneys collected, and upon which commission had been allowed for such collection; were not disbursements, within the meaning of the original decree, in regard to the commission to be allowed. And in this we think there was no error.

There is no fixed statutory rule for the allowance of commissions to trustees in cases like the present. The allowance is made, however, with reference to the rates of commission allowed by statute in analogous cases (Ringgold vs. Ringgold, 1 H. & Gill, 11, 84) ; as in the cases of guardians, trustees or committees of persons non compotes mentis, etc. In the case of a guardian, having the care and administration of the estate of his ward, the statute declares, that, for his care and trouble in the management of the estate,. “the Count may allow any commission not exceeding ten per cent, on the annual income of the