Denmead v. Denmead

delivered the opinion of the Court.

By the order of the Circuit Court, passed on the 26th of J une, 187 6, the appellant was allowed a commission of seven and a half per cent, on all his receipts. The auditor’s accounts, filed June 6th, 1883, allowed him such commissions, but the appellee excepted to the allowances, and these exceptions were sustained.

The appellant had an absolute right to these commissions by the terms of the decree, subject to be forfeited for causes which do not exist in this case. He had waived them in the accounts which had been stated previously to those in question. But this waiver was entirely a voluntary matter on his part. We find in the record no evidence which establishes a contract that he should relinquish them; and we do not wish to be understood as intimating that such a contract could be enforced in the face of the decree, by objections to the auditor’s account. It is not necessary to decide this question. In the ■ opinion of the learned Judge of the Circuit Court, the appellant was equitably estopped to claim these commissions by the *324effect of the recommendation of certain persons, including the appellee,' that the appellant should he appointed trustee to sell the property mentioned in the case of Denmead vs. Denmead, instituted in November, 1881; and by the decree of the Court making the appointment in accordance with the recommendation. This latter case originated, it will be seen, many years after the appellant’s appointment in the present case. The recommendation states, among other things, that the persons who signed it have always understood, and do believe that Francis Denmead, (this appellant), while trustee for Jane Broadbent and Edward Denmead, has never received one dollar for his services as such ;• that the commissions, whenever allowed .him, were passed over to said cestuis que trust, because of their needy .circumstances, and that the management of said trusts have been gratuitous on his part, from beginning to end.' ’And the decree-of the Court appointed Francis Denmead trustee to make the sale. The recommendation states a number of reasons for this appointment; such as: that the proposed trustee was the representative of all the interests in the property except those held by three of the signers of the recommendation; that he was in possession Of the property and thoroughly conversant with it; and that he was an eminently suitable and proper person for the trust. It sets forth, as a circumstance which ought to entitle him to the favorable consideration of the Court, the benevolence which he had shown in bestowing commissions previously earned on the necessitous cestuis que trust. ' The praise thus given to him was justly bestowed, and no doubt had its influence with the Court. But'his bounty was entirely voluntary; and it by no means followed that, because he had given away commissions in the past, he was obliged to continue to do so in the future. He was still free to do as he chose with his own. His acceptance of the trusteeship could not be an equitable renunciation of commissions, which *325might thereafter he allowed, unless it could he construed to be a contract with the Court to this effect. Trustees are appointed because of their fitness to perform their duties, and the commissions are the legitimate compensation for their services. It would he unprecedented and improper for the Court to exact from a trustee, as the condition of his appointment, a promise to make a pecuniary sacrifice. We certainly do not believe that such a thing was intended by the Court.

It has been argued that the appellant was delinquent in keeping a large sum of money uninvested, which belonged to the trust estate. But he regularly paid the estate six per cent, interest on the amount, and no safe investments could he made which would yield so much. The money was most abundantly secure in the appellant’s hands, and the circumstances of the case satisfy us that he was acting from an honest purpose to promote the best interests of the cestuis que trust, and with no view whatever to his own advantage. The orders sustaining the exceptions must be reversed, and the auditor’s accounts filed June 6th, 1883, must he ratified and confirmed in their entirety.

Orders reversed, and the auditor’s accounts filed June 6th, 1883, ratified and confirmed, and cause remanded; the costs to be paid out of the fund in Court.