Gibson's Case

It has been the practice of this court, for a long time, in a great variety of cases; but, particularly in creditors’ suits, to have its decrees and orders carried into effect by a kind of occasional executive agents, called trustees; who perform offices, in many respects, entirely analogous to those of the regular executive officers of the courts of common law; and similar to those which, in the English Court of Chancery, are performed by the regularly constituted officers of that court, called masters in chancery. The trustees of this court hold a place under it, and discharge their duties in a manner entirely unknown to the English chancery system. The principles by which they have been governed have grown out of the nature of the cases in which they have been employed; and, although often modified, as propriety and convenience seemed to suggest, they cannot yet be regarded as being as well settled, and as generally understood as the nature of the subject requires.

Trustees appointed and employed by this court have always been considered as its ministerial officers ; and, in whatever way they may have originated, the power to employ such agents having been recognised and affirmed by several legislative enactments, it may be now considered as finally and firmly established. (a)

*140There are many civil offices which, according to the common law, a woman is incompetent to fill, such as those of judges, jus*141tices, &c. ;(b) but from the general language of our constitution, for there is no express provision upon the subject, it appears, that -women are virtually excluded from all the various offices of our government^ — legislative, judicial, and executive. From which it would seem to follow, that females could not constitutionally be-employed even as the mere ministerial agents of any one of the three departments; ox be commissioned to perform any executive duty required by any one of the courts of justice. In cases of lunacy, if the lunatic.be a female, it is generally deemed most proper to appoint a female committee to take charge of her person. And so in other cases of that class,..it has been sometimes held, that the comfort of the unfortunate person would be best promoted by having his person placed under the care of a female committee, as by appointing the wife to be the committee of her husband, &c.(c) The Chancellor of Maryland has always been regulated by similar principles and feelings; and therefore with a view to the peace and comfort of the lunatic, his daughter has been appointed trustee of his person with others who were constituted trustees of his estate, (d) In a creditors’ suit, where the estate qf the deceased was likely to be exhausted by the payment of his debts, the widow, on asking to be appointed trustee, with a view to save the commissions for *142the support of herself and child, was, no objection being made, appointed trustee accordingly.(e) And so in other cases where the appointment of a female appeared to be well calculated to promote the interests of all concerned, she has been- employed as trustee to carry the decree into effect, (f) Hence it would seem, that although it does not often happen, that females are appointed as the executive trustees of this court, yet they cannot be regarded as incompetent to act as such in any case whatever.

*143But where it appears that the duties of trustee are altogether, or in most respects incompatible with the duties of the office which the proposed person holds, such as that of the register of this court, a clerk, or a judge of a county court, &c., such person cannot be employed as a trustee by this court.(g) In general, where the sale or disposition of any property is to be confided to a trustee, he must be required to give security for the faithful performance of his trust; and, consequently, as no one can be so appointed who is incompetent to contract, an infant or a feme, covert cannot be a trustee in any such case. It is necessary, in all cases, that the trustee of the court should be a citizen, resident within its jurisdiction; not only, that he may be the better able to discharge his duties; but, that he may be continually within its reach and control; therefore, no one who is not a resident, or who is engaged in any pursuit, or who holds any office which may require, or subject him to go, or be ordered out of the State during any long intervals of time, — such as masters of merchant vessels, or officers in the army or navy, — can be appointed trustees. And as a trustee can only be appointed during the pleasure of the court, if he remove out of the State, neglect his duty, or is guilty of any injurious or improper conduct, he may, on application of any one concerned, be displaced, and another trustee appointed in his stead. (h)

In making the selection of a person to be employed as a trustee, the court exercises a sound discretion upon a view of the whole case; and as the Chancellor may allow himself to be actuated by feelings of benevolence upon such occasions, where he can do so without injustice to any one, he has therefore, as before observed, appointed the widow as trustee, that she might obtain the commissions for the benefit of herself and child. The recommendations of the parties are always attended to, and allowed to have their due weight as to numbers, amount of interest, and reasons assigned; where the parties are silent, it has been usual to appoint the solicitor of the plaintiff as trustee; but a plurality of trustees is never appointed except on special application by petition, motion, or suggestion. (i)

*144The kind of duties required of a trustee, and the manner in which they are to be performed, are most usually particularly prescribed by law, or specified in the decree or order to be executed. But here a trustee is indulged with' a greater latitude of discretion in making sales of property than is allowed to a master in chancery in England, (j) In all cases where the trustee is directed to put the property into the market, by advertising and offering it for sale, he must do so; but, after that has been done, if it cannot be sold, at public auction, upon the terms specified, he may accept of a bid upon different terms, or he may dispose of it at private sale, or upon other terms than those mentioned in the decree; because as he is, in all cases, required to make a report in writing ,of only such a sale as he can, on oath, state to have been, in all respects, fairly made, which cannot be ratified, without consent, until public notice has been given to shew cause, if any there be, why it should not be confirmed; there can be no danger or inconvenience in allowing him to deviate from the prescribed manner and terms of sale, after the property has, by advertisement and an actual public offer to sell at the time and place appointed, been completely put into the market. A trustee cannot, however, be allowed, of himself, to do any act which, in similar cases, is usually required to be done by such an agent; but which has not been particularly specified in the order or decree, under which he holds his appointment; as where, in a creditor’s suit, the court had omitted, in its decree, to direct the trustee to give notice to creditors to file the vouchers of their claims by a specified day, the trustee was not permitted, of himself, to give any such notice. (k)

According to the common law, no public officer was permitted to take any fees for the performance of his duty, except such as were expressly, allowed by law, as a compensation for his trouble. Yet it appears, that judicial, as well as ministerial officers were allowed to make title to certain fees and perquisites by usage, and custom; and although it would seem, that no petty pecuniary charge should be permitted to intercept an extension of mercy, intended to save the life of a fellow creature, yet it is said, that in England, if a person pleads his pardon, the judges may insist on the usual fee of gloves to themselves and officers before they allow it.(l) Before *145the revolution, the judicial and ministerial officers of the government, here as well as in England, were allowed to take fees ;(m) but the Constitution has declared, that no chancellor or judge shall receive fees or perquisites of any kind.(n)

' The fees- of all regularly constituted ministerial officers have been regulated by law;(o) and it is declared, “that the Chancellor shall have full power and authority to allow any guardians, trustees, agents, or factors, who shall make disposition or sale of either real, personal, or mixed property, for the purpose of paying the debts of deceased persons’ or others, under and in virtue of any order or decree'of the Chancery Court, a commission from one per cent to seven and a half per cent for their trouble in selling and disposing thereof, and paying the same away in pursuance of such order or decree as the Chancellor shall, on consideration of all circumstances, think jusFand right.”(p) By a rule of this court of the 14th of June, 1797, it was declared, that “ the standing order of this court relative to the commission of trustees for the sale of real estates having been lost or mislaid, ordered, that in future the following allowances shall be made: — On the first hundred pounds seven per cent., on the second hundred pounds six per cent.,” and so on, as in the existing rule, to the tenth hundred pounds, and then it is further declared, that “ all above £1000 at the rate of two per cent. This allowance is to be clear of all necessary, except personal expenses ; and is intended for cases where the sale is for ready money or to satisfy one debt only. Where the sale is on credit, or to satisfy more than one creditor, the Chancellor will make a further allowance from a half, to one and a half per cent., on the whole amount of sales, according to the circumstances of the ease.”

From which it may be inferred, that the lost standing order, of which this is a renewal, had been made in conformity to the act of assembly, and soon after it was passed. It appears, however, that although fees, which have been settled by the ancient course of the court, cannot be altered, but by an act of. the legislature,(q) yet this standing order, for regulating the commissions of trustees, has been frequently departed from ; for, there are many cases in which a commission, not thus graduated, and varying from -two and a *146half to seven and a half per cent, on the whole amount has been allowed. (r)

But this act of assembly authorizing the allowance of a commission, as well as this rule by which that commission was graduated into the form of poundage fees, allowed to a sheriff for the sale of property taken in execution, it is evident, were both confined to sales made “for the purpose of paying the debts of deceased persons, or othersand consequently, although they applied as well to sales of mortgaged property as to sales in creditors’ suits, and the like; yet they did not extend to any case of á sale made of real, or personal properly, because of its indivisible nature, for the purpose of dividing the proceeds among those by whom it was held jointly or in common; nor do they apply to the case of a sale made, pending, a suit, of the property in litigation, because of its perishable nature, for the purpose of preserving its value to him to whom it may be determined to belong, by the final decree. Yet in these, as well as in all other cases, whether embraced by the act of assembly or not, the trustee has been allowed a commission, or compensated,for his trouble in one form or other. But by the existing standing order passed at March term, 1817, it is declared, that “ on sales under decrees or orders of the court, the following allowances to be made to trustees, &c. On the first three hundred dollars, seven per cent.; on the second, six per cent.; on the third, five; on the fourth, 'four; on the fifth, three and a half; on the sixth, three and a half; on the seventh and eighth, three; and on the ninth and tenth hundred dollars, two and a half' per cent. And three per cent, on all above three thousand dollars; besides an allowance for expenses not personal. The above allowance subject to be increased in cases of postponement, at the request of the defendants, or of extraordinary difficulty or trouble from other circumstances; and to be lessened in case of negligence, &c. at the discretion of the Chancellor.” This rule is expressed in the most comprehensive terms, and embraces all sales made by a trustee, under the authority of the court, for any purpose whatever.

The commission allowed to a trustee is given to him as a compensation for his trouble and risk in making the sale, bringing the *147money into court, and paying it away in the manner directed; or, in other words, for the performance of ail the duties specified in the decree, and the subsequent orders in relation to the sale and its proceeds. It is sufficiently evident, from the language of the rules, graduating the rate of the commission into the form of poundage fees, that the commission allowed to a trustee has never been considered, iii any respect, as a commission in the mercantile sense of that term. A trustee of this court is a person of legal constitution, with legal duties; and though some of his duties may have a mercantile mixture in them, he does not transact them as a merchant. He acts altogether as a legal officer, and must be paid, as such, in proportion to his diligence, skill, trouble and risk; not exactly according to the value of the subject in litigation.(s) And therefore the term commission, in the mercantile sense, cánnot be applied to the compensation of a trasteé, or any other officer of this court. -But it has been found, in many cases, to be highly expedient, if not absolutely necessary, to have the property sold by an auctioneer; and it is obviously for the benefit of those concerned, that all sales should be so conducted,(u) although no fee is allowed to a sheriff for so making a sale.(v) Therefore it has been deemed proper to permit the trustee to employ an auctioneer, to whom may be allowed a fee, not exceeding five dollars, for each separate and unconnected sale.

Considering the nature of the office of a trustee, it follows, that as on the one hand, his compensation may, because of the -discharge of his duties being attended with a very unusual degree of labour and risk, be increased; so, on the other hand, his compensation, because of his duties having been improperly or but partially performed, may be altogether withheld, or proportionably diminished. As where it appeared, that the trustee had been under, the necessity of making several journeys or voyages, or had already, and should thereafter incur much extraordinary trouble for the purpose of executing the decree, he was allowed a compensation, in addition to the commission specified by the rule.(w) On the other hand, where the *148trustee, after having given bond, had forborne, at the request of the defendant, to make the sale, he was allowed half commissións.*149(x) And where the sale, made by the trastee, had been set aside without any blame having been imputed to him, and afterwards another trustee had been employed who had made sale of the same property, the first trustee was allowed half commissions. (y) And where the trustee, after having made sale of a part of the property, had removed beyond the jurisdiction of the court, he was allowed a commission of one and a half per cent.(z) And where the trustee, after having made the sale, died before he had reported it to the court, two-thirds of the commissions were awarded to his representatives, and one-third to his successor, by whom the sale had been reported and completed. (a) No general rule has, however, been laid down in any of these cases, and perhaps none can be established in regard to this matter; the circumstances of each case being so peculiar, that each, as it occurs, must be submitted to the sound discretion of the court upon its own particular merits.

In some cases the fund may, to a certain extent, be burthehed with double commissions, as in this instance; where the trustee dies after having actually received an amount of the proceeds of *150sale equal to the sum allowed to him as commissions upon the whole, by a previous order of the court. , In such case the court cannot revoke its order, merely because of the death of the trustee ; and, therefore, the only mode in which this double charge could be prevented or corrected, would be to alter the practice, so as to postpone the payment of the trustee’s commission until the whole of his duties had been performed, or to authorize summary proceedings to be instituted, to make his representatives refund in part, with which the succeeding trustee may be compensated for his trouble in collecting the balance. Under such circumstances, it seems to be fair, by way of analogy to the rule laid down by the legislature in regard to sheriffs, and others,(b) to apportion the commission or poundage, where it can be done, between' the preceding and succeeding trustee .according to the sum which each may have collected, or on a consideration of the trouble and merits of each. But in this case the fund has been already charged with full commissions; and therefore should not now be again charged with more than a necessary recompense to the present trustee for his trouble; .which in this, as in all similar cases, must be regulated according to the services actually rendered.

Whereupon, it is ordered, that this trustee be and he is hereby allowed half commissions on the amount stated to have been received by him.