McCauseland's Appeal

The opinion of the court was delivered, by Strong, J. — By no recognised principle can an allowance of commissions upon the trust fund itself be justified. The bequest to the trustee was of $4000 in the loan of the District of Southwark, an investment made by the testator, and for which he held the certificates. It was a specific bequest. The investment was never changed by the trustee, and could not have been except at his risk. Eor the interest on the loan he was allowed commissions, but he had incurred no responsibility for the principal, nor had he performed any labour in regard to it. Commissions are given as a compensation for labour and responsibility, and where neither the one has been performed, nor the other incurred, there is nothing to be compensated. The appellants next complain that the trustee was charged with the amount of interest on the fund received during the period from 1884 to 1836. The trustee commenced acting as such in 1834, and during his life was the only acting trustee. The interest on the loan, to the amount of $175, was received in the year 1835, by one Hugh Murray. How it came to be paid to him does not directly appear. But it was Mr. McCauseland’s duty to collect it. He did collect it personally in 1836 and the following years, and it is a fair presumption, therefore, that it was received by Murray with his assent. Without such assent Murray could not rightfully obtain it, and if it was paid without right, it was incumbent on the trustee to enforce payment to himself. This liability would be complete whether Murray was his agent in receiving it, Or whether it was lost by his neglect. The surcharge of interest on the unexpended income was properly made. The will by which the trust was created made it the duty of the trustee to invest any such surplus, with the approbation of the Orphans’ Court. The cestui que trust is not to suffer because this duty was not performed. True, the sum was small, so small as possibly to make investment difficult. Then the Orphans’ Court’s directions should have been sought. No effort appears to have been made to invest it. Accounting for interest is therefore inevitable. The trustee has no reason to complain ; he is not charged for any surplus in his hands before 1840, and with but simple interest without rests from that time. The costs were properly apportioned between the parties. The decree of the Orphans’ Court is affirmed.