
    W. L. HENRY et al. v. W. L. HILLIARD et al.
    (Filed 23 December, 1911.)
    1. Judicial Sales — Trustees—Commissions—Agreement—Subsequent Agreement — Interpretation of Contracts.
    In this case, Held, that a trustee of the funds arising from the sale of certain lands under judicial proceedings should not be entitled to certain commissions under an agreement entered into with the parties in interest, for the reason that these commissions were included under a certain other and subsequent agreement in a larger sum for his full services.
    2. Judicial Sales — Trustees—Commissions—Agreement—Report — Interpretation of Contracts.
    An agreement entered into by the parties and a trustee appointed by the court to hold and disburse the proceeds of sale of lands under judicial proceedings, which specifies that the report of the trustee “is considered as correct as to all debts and credits that have passed through his hands, except as modified by this agreement,” does not authorize a commission claimed by the trustee in his report which the agreement itself includes in a larger amount for full commissions which are to be paid him.
    
      3. Judicial Sales — Trustees—Order of Court — Disbursements in Excess.
    A trustee appointed by tbe court in judicial proceedings to bold and disburse moneys arising from tbe sale of lands is not entitled to a credit of a larger amount paid to certain parties in interest than ascertained and fixed by an order in tbe case made by tbe court, as a payment in excess of tbat sum is made without authority.
    Appeal from Cline, J., at January Term, 1911, of Haywood.
    Tbe facts are sufficiently stated in the.^er curiam opinion of tbe Court.
    Civil action beard on exceptions to report of referee.
    From rulings of bis Honor, modifying report, and judgment tbereon as modified, R. D. Gilmer, trustee, excepted and appealed.
    
      W. T. Crawford for plaintiff.
    
    
      Walter Ciarle, Jr., for defendant.
    
   Pee Cubiam.

Tbis was a civil action involving tbe settlement of wbat is termed in tbe record tbe “Love estate.” Pending tbe proceedings, on motion of Hon. R. D. Gilmer, trustee of funds belonging to tbe estate arising from sale of certain lands in Haywood, Jackson, and adjoining counties, report was made and, on exceptions filed, tbe questions involved were referred by order of court to M. W. Bell, Esq., wbo beard testimony and made report containing bis findings of fact and conclusions of law in tbe case. Exceptions having been made to tbis report, present judgment was entered at January Term, 1911, and tbe trustee, as stated, excepted and appealed.

Tbe objections' made to tbe validity of tbe judgment are, first, tbat tbe trustee is charged with tbe sum of $669.30 commissions heretofore retained by him on a sale of certain lands in Jackson County made in tbe year 1900 under and.by virtue of a written agreement as to fees, bad and made between tbe trustee and two of tbe beneficiaries of tbe estate with tbe sanction of a majority of tbe cestui que trusts in 1894. Tbis item was no doubt charged against tbe trustee for tbe reason tbat under another agreement entered into between all tbe parties of record on 30 June, 1908, subsequent to tbe one before mentioned, it was stipulated tbat tbe trustee should receive the sum of $6,500 in full for all services since 1898, and might retain all amounts allowed him for services before that time. The sale under which this charge is made took place, as stated, in 1900, and the commissions therefore are covered by agreement for $6,500, and was therefore not a proper charge.

It is claimed for the trustee that this objection is not open, because the parties had also agreed that the report filed by the trustee, in which this item appeared as a proper credit, should be taken as correct, but we do not think this a correct position. The agreement in the particulars referred to expressly states that the report of the referee “is to be considered as correct as to all debts and credits that have passed through the hands of said Gilmer, except as modified by this agreement as to charges for services rendered by said Gilmer.”

The objection, therefore, was open to the appellees by the express provisions of the agreeement.

Again, it was objected that the trustee had been credited only with the sum of $5,500 as the amount properly paid by him to the heirs of William Welch, .whereas the facts showed that the trustee paid these heirs the sum of' $6,174.17. The answer is that the amount due these heirs had been fixed by a decree of the court made in the cause at the sum of $5,500, and there is no authority appearing for a payment of any amount in excess of that sum.

We find nothing in the record that would justify the Court in disturbing' the conclusion reached by his Honor, and the judgment entered by him is therefore

Affirmed.  