
    Ridgely vs. Gittings.
    June, 1827.
    Where trustees appointed by a last will for the sale of real estate refused to act, J was appointed by the chancellor in their place, and having sold the estate, he claimed a commission for his trouble; but if appearing that he had waived all claim to commissions anterior to his appointment, and by a family arrangement, in which -he was concerned, he was procured to be appointed trustee, on the express agreement that no commissions were to be charged — Held, that he Was not entitled to any commission, but only to his actual expenses incurred in the execution of the trust.
    Appeal from the Court of Chancery. Mrs. Deborah Sterett on the 28th of July 1812, duly made and executed, according to law, her last will and testament, whereby (among other things,) she gave and bequeathed to her -four daughters, to be held for them in trust for their sole and separate use and disposal by her trustees, or the survivor of them, all the money that might be due to her from her son Charles, at her death, for the land that she had agreed to sell him, except $4000, which she gave to Charles’s son John; and that her son Charles might have a good estate in fee simple, on payment of the purchase money, for which she allowed five years annual payments, with interest. She further gave and devised the Said lands to her said daughters in fee, and in trust, that they and their heirs might -be enabled to conVey the same to the said Charles-, and his heirs, when they were paid for; and the said testatrix, by her said last, will and testament, appointed Joseph Sterett and James Sterett, and the survivor of them, executors and trustees of her said will. The said testatrix on the 12th of February 1818, duly made a codicil to her said last will, whereby, after mentioning and reciting the above bequest and devises to her daughters, she revoked the legacy to her grandson John, and gave to his father Charles S. Ridgely, an equal part with his four sisters.' By an additional codicil to her will, the testatrix revoked the appointment of Joseph Sterett as one of the executors and trustees under the will for the purposes aforesaid, and appointed Samuel Hollingsworth, who refused to act; and the chancellor subsequently appointed in his place, John S. Giftings, (the appellee,) who took upon himself the discharge of the trust.
    A bill was filed to obtain a decree for the sale of the land for the payment of the legacies aforesaid, and a decree was passed for the sale of the premises upon certain terms, and with a stay. The auditor stated an account showing the amount due to the legatees aforesaid, and allowing to the trustees a commission of 5per cent. Exceptions were filed to this report in July 1821, and the ease then rested until September term 1825, when the appellant filed his petition, alleging that having made a private sale of the land he was prepared to pay the amount due to the legatees, but objected to, the allowance of any commission to the trustees.
    Some testimony was taken under a commission, which is sufficiently stated in the opinion of the Chief Justice, delivered in this cause.
    Brand, Chancellor, (September term, 1825.) The petition of Charles S. Ridgely, so far as relates to the commission claimed by the trustee, and the exceptions to the auditor’s report of the 23d of June 1821, standing ready for hearing, the counsel on both sides were heard, and all the proceedings were read and considered.
    A trustee appointed by this court to- make sale of property directed to be sold is, so far, its executive officer or agent. Ho is in many respects considered in the light of a sheriff, acting in obedience to a court of common law; and the commissions allowed to such a trustee are adjusted under the rule of this eourt in a manner analogous, to the poundage fees allowed to a sheriff. But in this case John 8. Gittings,, the trustee, can in no respect whatever be considered as a mere executive officer of this court. The testatrix, Deborah Sterett, having disposed of her property in such a manner as to require one or two faithful agents to carry her intentions into effect, and to execute her last will and testament, she accordingly appointed two persons as executors and trustees for that purpose. One of those persons refused to act; in consequence of which this court was called on and appointed John 8. Gittings in the place of him who refused to act. John 8. Gittings is then, not the executive agent of this court, but the trustee or fiduciary of Deborah Sterett, acting for the benefit of those who are the objects of her bounty. And, therefore, as such, John 8. Gittings is subject to all the burthens, and entitled to all the benefits, which the trustees actually named by the testatrix would have been liable to, or could have claimed. The amount of commission or allowance to such an executor or trustee should be the same in this court as is directed by law to be allowed by the other tribunals of the state for the discharge of similar duties and functions. By the act of 1798, eh. 101, it is directed) that executors shall be allowed not less than 5 per cent. This direction, in those cases, to the orphans courts, is considered a very strong indication, if not a positive command, as to what this court ought to do in thiscase. But it is said, that this trustee did nothing, and in fact had not the least trouble in the sale of the land held by Charles S. Ridgely. It is evident, that in all cases a trustee or executor may have much trouble,,and incur much greater risk with one part of the estate than the other. But under the act of 1798, the commissions are allowed on the whole amount as a compensation for the aggregate amount of trouble and responsibility. It is believed the court in no case makes any distinction as to the trouble and responsibility of the executor or trustee on the several parts of an estate, but determines that the established commission shall be allowed on all generally for all labour and risk. In this case the fiduciary responsibility was incurred for the whole, and, therefore, the trustees are entitled to commissions on the whole as estimated by the auditor. But a trustee or executor may waive or,release his claim to commissions. And it is alleged, that the trustee,. John S. Gittings, has done so in this case. The testimony, however, does not satisfactorily sustain the allegation; and, therefore, the exceptions to the auditor’s report must be overruled. Ordered, that Charles S. Ridgely forthwith pay unto the trustee, John S. Gittings, the siim of $595 98, being one half of the commissions due to the trustees as stated by the auditor in his report. From which order Ridgely appealed to this court.
    The cause was argued before Buchanan, Ch. J. and Earle, Archer, and Dorsey, J.
    
      R. Johnson, for the Appellant,
    contended, I. That the trustees are not entitled to any commission. 2. That they are not entitled to 5 per cent. 3. That from the evidence in the cause, the trustee, John S. Gittings, (the appellee,) agreed to act without commission; or at any rate that he was not entitled to commissions upon the whole amount of the purchase money of the land sold to the appellant. lie referred to Green v Winter, 1 Johns. Ch. Rep. 27, and Ringgold v Ringgold, 1 Harr. & Gill, 11.
    
      Winchester, for the Appellee.
   Buchanan, Ch. J.

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 trust 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.  