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 estate.” Code, Art. 33, sec. 111. And in the case of a trustee or committee of a person non compos mentis, the statute provides, that the Court may allow to the trustee or committee, having the care of the person or estate of the non compos mentis, for his care and trouble, “ any sum not exceeding ten per cent, on the income and expenditures of such non compos mentis.” Code, Art. 16, sec. 85. In these cases, the guardian or trustee is not entitled to, and does not receive, commission on the fund that he pays over to the ward when he arrives at age, or to the non compos mentis when restored to reason, or to those representing such persons. It is only upon the amount of the receipts of income and the expenditures, during the con [456] tinuance of the trust, that commissions are allowed. The word disbursements, used in the decree of 1861, was manifestly used as meaning expenditures, during the existence of the trust, as contradistinguished from payments over to the cestui que trust. Otherwise there would have been no reason for separating the commissions to he allowed, and allowing five per cent, on the collections, and five per cent, on the disbursements and investments; the allowance would simply have been ten per cent, on the income or collections, or ten per cent, on the disbursements, as the Court might have deemed proper. (Decided 3rd February, 1881.) That the word disbursement is used as meaning expenditure, or rather as synonymous with that term, may not only be seen by reference to the dictionary, but to the case of Winder vs. Diffenderffer, 2 Bland, 166, 208, and same case on appeal, 3 Gill & J., 311, 348; and in that sense, it clearly does not embrace payments over to the cestui que trust of his own funds. As we have already said, none of the audits and accounts stated in the case are properly before this Court, except the last and to which the exceptions were taken ; and as the appellee has had a considerable portion of fhe record incorporated by his own direction, the cost of that part of the record must he taxed to him. The order appealed from will he affirmed, with costs to the appellee, with the= exception just stated. Order affirmed and cause remanded.