Opinion
(June Term, 1852.)
1. In settling the accounts of a trustee, he should be allowed, not only reasonable commissions, but also actual expenses.
2. When the master, in his report, allowed the trustee nothing for his expenses, but a greater amount of commissions than had been stipulated by the parties, if, upon the whole, the trustee receives no more than a fair compensation, the Court will not disturb the report.
THIS cause came on to be heard upon exceptions to the (223) master's report on the accounts of the trustee. It is unnecessary to state any of the exceptions, as they embrace merely matters of fact, except the third, upon which the Court delivered its opinion.
B. F. Moore for the plaintiff.
Heath, Ehringhaus, Jordan, and Smith for the defendant.
The third exception of the plaintiff to that account, and both of the exceptions of the defendant Hoyt thereto, relate to the same matter and may be considered together. The deeds of trust mentioned in the pleadings stipulate that the trustee shall have a commission of 5 per cent on both sides of his account, and also his reasonable expenses in the execution of the trusts. The master allows 5 per cent of the receipts and 7 1/2 per cent on the sum of $7,186.40 as disbursements, and makes no allowance for expenses. He reports that the trustee produced and claimed a large amount for expenses, amounting to several hundred dollars, which he rejected on the ground of its unreasonableness, and that, instead of making any allowance on that score he added 2 1/2 per cent, and the defendant Hoyt excepts, first, because allowances were not made for the loss of time, personal services, and expenses, and, secondly, because insufficient commissions were allowed him. The trustee is not entitled to compensation for his time and services beyond the commissions, because the commissions constitute such compensation, and in this case the parties fixed the rate, which, indeed, appears to the Court to be fully adequate.
To his expenses he was also entitled, and it would have been most proper that the master should have made an allowance for them specifically. But, upon computation, it is found that the 21/2 per cent on the disbursements, which the master gives for the expenses, amounts to about $180; and, upon looking through the accounts and considering (224) the nature of the defendant's duties as stated in the testimony, it appears to the Court that would have been a reasonable allowance for his expenses. The Court will not, therefore, disturb the account, since the error is merely in form and substantial justice has been done. All those exceptions are overruled.
The Court sees no reason to differ from the trustee as to the allowance of commissions on the administration account of the defendant James S. Clark, and, therefore, the exceptions of both the plaintiffs and the defendant thereto are overruled.
PER CURIAM. Decree accordingly.
Cited: Ivie v. Blum, 159 N.C. 123.