
    William Pinkney Whyte and Benjamin F. Horwitz, Trustees vs. Charles Dimmock.
    
      Allowance of Commissions in Dquity — The word, Disbursements — Cost of Record.
    
    Under a decree of Court which allowed a rate of commission of five per cent, on the amount of “ all collections which the trustee may make as trustee of the 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 make; which provision was referred to by a subsequent order appointing the appellants, trustees, as fixing the rate of commission to be allowed them, payments over to the appellee, a cestui que trust, of moneys collected, and upon which commissions had been allowed for such collection, were not disbursements within the meaning of the decree, in regard to the commission to be allowed. The word “ disbursements ” was used as meaning expenditures during the existence of the trust, as contradistinguished from payments over to the cestui que trust.
    
    Where an appellee had audits and accounts incorporated into the record by his direction, which were not properly before this Court, it was Held :
    That the cost of that part of the record would be taxed to him.
    Appeal from the Superior Court of Baltimore City, in Equity.
    By an order of the Court below, dated the 25th February, 18T0, the appellants wére appointed trustees of the estate of Mrs. Emily L. Dimmock, deceased, acquired under the will of her mother, Mrs. Juliet A. Moale, deceased, in the place and stead of the trustees named in the will, and “with the same rights, powers and duties as were bestowed and imposed on the trustees under the will, and with the satae allowance to them for commissions on receipts and collections, and also on disbursements and investments,” as were made to the acting trustee under the will, by a decree of the 18th December, 1861. The terms of this decree, as to the rate of commission to the then acting trustee, are stated in the opinion of the Court.
    The appellee and his sister, Emily L. Dimmoclc, the children of Mrs. Emily L. Dimmock, deceased, were the cestuis que trust. The former having become of full age, and being entitled by the terms of the will, under which the trust was created, to have absolutely his share of the • estate, on the 29th April, 1879, filed his petition, asking the Court to pass the proper order to that end, upon satisfactory proof as to the proper division of the estate. The trustees duly answered, admitting the allegations of the petition, and expressing themselves ready and willing to deliver his share to him. Testimony was taken, and the matter referred to the auditor to state a distributive account between the trustees and the appellee.
    In this account, filed the 23rd July, 1879, the auditor awarded to the appellee the sum of $810.35, being one-half of the cash admitted by the trustees to be in their hands, less the auditor’s and Court costs, and the further sum of $77.50, to make up the deficiency in the value of the stocks, ground rents, &c., awarded to him, as compared with the value of those awarded to his co-cestui que trust. The trustees had previously paid $1000 to the guardian of these cestuis que trust, for their maintenance, by the Court’s order, passed the 27th June, 1878, five per cent, commission being charged against that sum, as a disbursement. The auditor allowed them this commission.
    The appellants excepted to the auditor’s report, because it did not allow them the commission of five per cent, upon the sums of $77.50 and $810.35, the first being taken out of the income to equalize the division, and the second being taken as one-half of the cash in the hands of the trustees, for investments, but not yet invested, and to be disbursed-to Charles Dimmock. Aud tbe appellee also' excepted, because the account allowed the trustees a commission of five per cent, on $1000 paid by the trustees to the guardian of the cestuis que trust, under the order passed 27th June, 1878.
    The Court, (Dobbin, J.,) on the 24th September, 1879, sustained the exception of the appellee, and overruled the exceptions of the appellants. The trustees appealed.
    The cause was argued before Bartol, C. J., Bowie, G-rason, Alvey, Robinson and Irving, J.
    
      Benjamin F. Horwitz and Wm. Pinkney Whyte, for the appellants.
    
      T. Wallis Blackstone, for the appellee.
   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 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 continuance 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.  