delivered the opinion of the court. The appeal in this case is not from the disallowance by the chancellor of the exceptions tal'en to the account stated by the auditor, but from the chancellor’s order directing the appellant to pay to J. Gittings, one of the trustees, the sum of $505 98, the amount of one-half of the commissions allowed to the trustees in the auditor’s report. It appears from the account stated by the auditor, that commissions have been allowed to the trustees on the whole amount of the price of the land sold to the appellant by his mother. But as she bequeathed to him one-fifth part of that amount, with express authority to retain it, the part so bequeathed, constituted, in the opinion of this court, no part of the trust fund, and consequently no commission could, we think, bo properly charged upon it. And the amount ordered to be paid by the appellant, being made up in part of commissions charged upon that fifth, it is more than the appellee ought to be allowed, supposing him to be entitled to any thing; which under the circumstances of the case, we cannot admit.

There can be no doubt that a trustee may waive his claim to commission, where that claim exists; and there may be circumstances under which no such claim can justly arise. This, it seems to us, is just that case. Independent of the fact that this trustee has in truth done nothing in relation to the trust, for which he merits remuneration, but that all has been left to be done by the appellant himself, the testimony set out in the record, sufficiently proves, we think, that he would have been entitled to none, beyond his mere expenses, if he had received the money and discharged all the other duties of the trust. Elizabeth Duckett swears, that in a conversation between Richard Gittings and Polly Gittings, (who were concerned,) and the appellee, she heard him say he would make no charge on the *62trust reposed in him, further than his expenses; that he expressly agreed to perform the duties of the trust without any compensation; and that the conversation took place the day on which Richard Gittings wrote to the chancellor recommending tile-appointment of the appellee as a trustee. And James Gittings-JRinggold swears, that on being asked by the son-in-law of Richard Gittings if he would undertake to act as a trustee, he-agreed to do so for his expenses only, without any other compensation or commission; that he had held frequent conversations with the appellee concerning the trust he had accepted, in one of which he complained that the parties ought not to-have expected of him to attend to the duties of the trust without compensation, on which he advised him to make known his views to the parties concerned, as they expected him to attend to the trust upon the terms on which, he the witness, had offered to undertake it; and that he had frequently heard the appellee admit that he had undertaken the trust on the terms proposed by himself.

These witnesses stand altogether uneontradicted, and without any kind of exception to their testimony, which without resorting to, or calling in aid, any of the other evidence taken in. relation to this subject, clearly shows, not only that the appellee waived all claim to commissions anterior to his appointment, but that under a family arrangement, in which be was himself concerned, he was procured to be appointed a trustee on the express agreement and understanding that no commissions were to be charged." This agreement arid family'arrangement the appellee now seeks to violate, in which attempt he cannot, upon the evidence in the cause, be sustained.

ORDER OX THE CHANCELLOR REVERSED.