Widener v. Fay

Miller, J., delivered the opinion of the Court. The controversy in this case is over commissions. It appears that in April, 1865, Charles Hamill executed a deed conveying certain property to Devecmon and Deford as trustees to secure a debt due to G-ustavus Beall. In default of payment the trustees, or either of them, were empowered to sell the property, and the deed stipulates that they shall receive “eight per cent, commissions as compensation ” for their services.

Deford never acted and resigned, but Devecmon filed his bond, made several attempts to sell the property, but died before doing so. ²⁷⁵ After his death, on application to the Circuit Court for that purpose, an order was passed in May, 1875, appointing Widener and Brown trustees, in place of Deford and Devecmon, to carry out and execute the trust. These trustees proceeded to act, sold the property for $10,050, and reported the sale which was duly ratified. The auditor then stated an account in which he allowed the trustees commissions at eight per cent., as provided in the deed. This allowance the Court (Motter, J.,) declined to sanction and directed the question to be argued.

The administrator of Devecmon then filed a petition asking an allowance out of the proceeds of sale for labor and services rendered by his intestate in his life-time in efforts to execute the trust. Testimony was taken upon the matter of this petition and an opinion was then delivered by the Court, (Alvey, C. J., and Motter, J.,) by which it was decided, 1st. that Widener and Brown were only entitled to commissions according to the Chancery rule, and, 2nd. that the sum of $400 be allowed to his administrator for the responsibility assumed, and the labor and services rendered by Devecmon. An order was then passed referring the case to the auditor, with instructions to state an account in accordance with the views expressed in that opinion, and from that order this appeal has been taken by Widener and Brown. We shall assume that this order is subject to review on appeal and shall dispose very briefly of the questions it presents. 1st.

And first, we think there was no error in allowing compensation for the services of