
    John Longley versus Frederick Hall.
    A testator devised his estate to his executor in trust to sell the same, and after paying debts and legacies, to invest $2500 in stocks and apply the income to the benefit of E. L. for her life, and to invest the residue in stocks and apply the net income for the maintenance and education of F. H. until he should become of age and then to pay to him the yearly income during his life, and upon the death of either F. H. or E. L., to assign to his or her children the capital stock from whence his or her income was derived3 but if either died without leaving any child, the income of the deceased was to be paid to the survivor during life, and afterwards the capital stock was to be transferred to the children of such surviv- or ; but if both should die without leaving any child, the capital stock was to be transferred to the testator’s heirs. Held, that the trustee was authorized to apply to the maintenance and education of F. H. only the income of the trust fund, and that the consent of E. L., the immediate devisee over, would not justify him in breaking in upon the capital.
    The testator likewise empowered the trustee to raise out of the stocks directed to be procured and held in trust for F. H., the sum of $500, upon his coming of age, and thereupon to pay over to him such sum, if the trustee in his discretion should deem it expedient. Held, that the trustee could not apply this sum to expenses incurred before the cestui que trust came of age.
    In general, a trustee is entitled to a reasonable compensation for his services.
    Upon an appeal from a decree of the judge of probate disallowing the second account of the trustee, who had settled two accounts as executor and one as trua tee, each subsequent account taking up a balance from the preceding one, and the trustee accounts containing charges against the testator’s estate, this Court considered all the accounts as one chain, and referred them to an auditor to be re-stated according to the principles above laid down.
    David Wier, by his last will, dated March 20, 1819, devised ail his real and personal estate, subject to the payment of his debts, to John Longley, his heirs and assigns, upon trust to sell the same at such time and upon such terms as he should deem expedient, and after realizing the proceeds of such sale and discharging all expenses incident to the ex-' ecution of the trust, to pay thereout $ 800 to Francis Hall, $ 100 to E. T. Hubbard, $200 to Longley, the trustee, $200 to Judith Longley, wife of the trustee, and $ 50 to Z. Cowden, or to the legal representatives of these legatees respectively ; and from the residue of the proceeds he directs the trustee to invest $ 2500 in public stocks, and to hold the same in trust to apply the income for the benefit of Elizabeth Longley during her life ; and all the residue of the proceeds he directs the trustee to invest in public stocks, and to hold the same upon trust “ to pay and apply the net income and prof its thereof for the maintenance and education of Frederick Hall, until he shall arrive at twenty-one years of age ; and after his attaining that age, then to pay unto him the yearly income thereof during his life; and at and upon the death of either Elizabeth Longley or Frederick Hall, to transfer and assign unto her or his children, if any, the capital stock from whence the income was derived, for the use of Elizabeth or Frederick, to hold the same to the sole use and benefit of such children of Elizabeth or Frederick for ever ; ” but should either Elizabeth or Frederick die without leaving any children, then the testator directs the income of her or his stock to be paid over to the survivor during her or his life ; and on the death of such survivor, he directs the whole of the stock to be assigned and transferred to the children of the survivor for their sole use for ever. And should they both die without leaving children, the testator orders the stock to be assigned to his heirs at law. The testator authorizes the trustee, out of any moneys which may come to his hands by virtue of the will, to deduct and reimburse himself all such reasonable charges and expenses as may arise in and about the execution of the will and the trusts. “ And until the trustee shall cause a sale to be made, the testator directs him to apply the clear income of the real estate to the support and education of Elizabeth Longley and Frederick Hall; and the surplus of such income, together with the personal estate, to the payment of the other legacies.” The testator appoints John Longley to be the executor of his will.
    By a codicil, dated March 23, 1819, the testator 6< empowers and authorizes the trustee to raise out of the stocks directed to be procured and held in trust for the use of Frederick Hall, a sum not exceeding $500, upon Frederick’s attaining the age of twenty-one years, and thereupon pay over to him such sum, if the trustee, in his discretion, should deem it expedient.”
    The will was approved in the probate court in April 1819. The appellant settled his first account as executor, in March 1820, his second as executor, and his first as trustee, on September 24, 1821 ; and in 1830 his second as trustee was presented in the court of probate for allowance. Elizabeth Longley, being then of age, ratified the allowance of the previous accounts and consented to the allowance of the last, and so far as regarded her it was allowed ; but in respect to all the other charges it was, at the instance of Frederick Hall, disallowed.
    The objections were, that in the two trustee accounts the expenditures on account of Frederick Hall were unreasonably large; that they exceeded the interest of the trust fund for the benefit of Frederick, which fund did not exceed $ 1900, and as the trustee contended, was less than $ 1200 ; that in the second trustee account there were charges for money paid in satisfaction of the legacies to Francis Hall arid Z. Cowden ; and that in the two trustee accounts commissions were charged for the services of the trustee.
    From the decree of the judge of probate the trustee appeal ed for the following among other reasons.
    1. Because the judge did not allow to the appellant certain payments made since the passing of his former account, in satisfaction of legacies bequeathed by the testator.
    2. Because the judge did not allow various items of charge for the maintenance and education of Frederick Hall, although the trust was created expressly with the view of providing for his maintenance and education, and notwithstanding similar charges, and at the same rate, had been allowed out of the trust fund on the settlement of the first account of the execution of the trust.
    3. Because the judge did not allow the sum of $ 500, which the trustee, in his discretion, was authorized to raise out of the trust fund and pay over to Frederick Hall on Iris attaining the age of twenty-one years, to be considered and taken as raised and expended in the exercise of the discretion so given ; although the trustee had expended in good faith a larger sum over and above the income of the trust fund, in boarding and clothing Frederick after he became of age.
    
      March 29th.
    
    4. Because the judge did not allow any compensation for the management of the trust fund, or for providing for the. maintenance and education of Frederick, although the other cestui que trust and contingent devisee in remainder, certified her consent to such allowance and to the passing of the account as it was presented.
    Field, for the appellee,
    contended that the several accounts of the appellant ought to be set aside and the capital fund made good ; and to show that the court had power to rectify the accounts from the beginning, he cited Baylies v. Davis, 1 Pick. 206 ; Stearns v. Stearns, ibid. 150.
    The appellant was allowed a commission for his services as executor ; but the will made no allowance of a commission for his services as trustee, and by law he was not entitled to any. Manning v. Manning, 1 Johns. Ch. R. 527 ; Mumford v. Murray, 6 Johns. Ch. R. 17.
    To the point that the principal of the trust fund ought not to have' been diminished for the support of the appellee, he cited Englefield v. Englefield, 2 Vern. 236.
    
      Jlylioin, for the appellant,
    remarked on this last point, that the testator had in view the maintenance and education of the appellee; that when the executor’s account was settled in 1821, the appellee was seventeen years of age, and the judge of probate then allowed three dollars a week for his board, in addition to the expenses of clothing and schooling, and thus warranted the trustee in sending him to school to fit him for a ounting-house, and it was of more consequence that"he should be suitably educated than that the money should be reserved till he should come of age and that the trustee had broken in upon the capital with the consent of Elizabeth Longley, the immediate devisee in remainder. Barlow v. Grant, 1 Vern. 254 ; Matter of Bostwick, 4 Johns. Ch. R. 100 ; Hammond v. Neame, 1 Swanst. 35.
    But if the will is to be construed strictly in regard to the interest, the appellant should be allowed to apply to past expenses the sum of $ 500, which he was authorized to raise upon the minor’s coming of age.
    
      March 30th.
    
   Per Curiam.

It appears by the accounts of the appellant, that he has expended for the use of Elizabeth Longley and the appellee, more than the income of the property directed to be invested and held in trust; and the first question is, whether this is conformable to the will. We are of opinion that he had no right to spend more than the income, for several reasons ; and first, because there was a remainder ' over. If Elizabeth Longley had been the sole party in interest after the death of the appellee, her consent would operate as a strong argument in favor of the trustee ; but she was not. There were cross remainders to the children of the two cestuis que trust, and a final remainder to the heirs of the testator. Secondly, there is a provision that until the fund should be raised, the income of the real estate should be first applied to the support and education of the appellee, and that any surplus should be otherwise appropriated.

With regard to the sum of $ 500, it was intended to be paid to the appellee upon his arriving at the age of twenty-one, if the trustee should deem it expedient; and this was to depend on the circumstances at that time. But if it should have been determined that this sum was not to be raised and paid to the appellee, only the income of the trust fund was to be applied to his use. The sum in question was not to be resorted to for the payment of expenses incurred before he became of age.

The appellee objects to the right of the trustee to charge a compensation for his services. In England and New York the objection would be sustained ; but from an early period a different practice has prevailed in this Commonwealth. The trustee is entitled to a reasonable compensation.

In regard to opening the accounts, it appears that the appellant has settled two as executor and one as trustee, and that a second is presented by him as trustee, for allowance. Each subsequent account takes up a balance from the preceding one, and they all form one chain of accounts. There are several charges in the two accounts presented by the appellant as trustee, which properly should be made against the testator’s estate ; and it will be best to refer all the accounts to an auditor, not for the purpose of setting either of them aside, but to give the appellee an opportunity to surcharge and falsify. 
      
       See Dixon v. Homer, 2 Metc. 420; Rathbun v. Colton, 15 Pick. 472; Hayward v. Ellis, 13 Pick. 279.
     