#### The College of Charleston *vs.*Thos. N. Willingham.

*Commissions*— Trustees.

Where the instrument creating a trust fixes the compensation which the trustee shall be entitled to for his trouble in executing the trust, the general law in reference to the commissions of trustees has no application to the ease, and the trustee must be content with the compensation allowed by the instrument.

Where a trust deed conveyed to the trustees a certain certificate of stock and other property, real and personal, and directed them immediately after the death of the grantor “ to transfer and deliver to ” A the certificate of stock, “and convey for the best prices that can be obtained” the other property, real and personal, and, after retaining as compensation for their trouble five per cent. “ on the proceeds of all such sales, as well as all costs and charges,” to distribute “the net proceeds” between certain persons named, *Meld,*that the trustees were not entitled to commissions on the certificate of stock transferred and delivered by them to A.

BEFORE JOHNSON, CH., AT CHARLESTON, JANUARY, 1866.

Tbe decree of his Honor, the Circuit Chancellor, is as follows:

Johnson, Ch. On the 25th day of April, 1864, Ephraim M. Baynard, of the District of Charleston, by a deed, for good consideration, conveyed to Thomas H. Willingham and Benjamin L. Willingham his plantation in Beaufort District; thirty-eight negro slaves, by name; eighty-one bales of sea-island cotton; all the money due him by his factors, William M. Lawton *&*Co., or by any other person; four hundred and thirty-six shares in the Georgia Railroad and Banking Company; four hundred and ten whole and four hundred and ten half shares in the South Carolina Railroad and Southwestern Railroad Bank; three hundred *196and twenty-six shares in the Bank of South Carolina; two hundred and twenty-one whole and nine half shares in the Bank of Charleston; twenty shares in the Charlotte and South Carolina Railroad; five thousand dollars in six per cent, bonds of the State of Georgia; two thousand dollars in the bonds of the South Carolina Railroad Company; fifty-eight thousand five hundred dollars in the bonds of the Charleston and Savannah Railroad Company; forty-three thousand dollars in the bonds of the State of South Carolina; twenty thousand dollars in the bonds of the Confederate States of America; and one hundred and sixty-six thousand dollars in the city of Charleston six per cent, stocks; in trust for the following purposes, viz.: "To sell the said cotton, and to invest' the proceeds of the same, and all moneys of his that shall come into their hands; and the profits thereof, and the dividends and profits of all sums now invested which shall be received by them, in public or private securities; after deducting ten per cent, on their receipts, and retaining the same for their own use as compensation for their care and trouble in the premises, and so much as shall be necessary for the comfortable support of the grantor, for his life, which shall be paid over to him; and to permit the grantor to retain possession of the land and negroes, and to receive to his own use the rents, issues and profits thereof,” and “ immediately after my (his) death to transfer and deliver to the Charleston College the certificate of stock for one hundred and sixty-six thousand (166,000) dollars in the city of Charleston six per cent, stocks, and convey, for the best prices which can be obtained, the said plantation, with the negroes and their increase, and all the aforesaid stocks and securities, with such others as shall come to their hands, and after deducting and retaining to their own use as compensation for their care and trouble in the premises five per cent, on the proceeds of such sales, as well as all costs and *197charges they may incur or be put to in the transaction, shall divide the net proceeds into fourteen (14) equal parts, and pay over one-fourteenth part to each of the following persons, who are my (his) nephews or nieces, or have intermarried with them.” Each of the defendants having married a niece of the donor is directed in the said deed to retain for his own use one of the fourteen equal parts.

The said Ephraim M. Baynard departed this life on the fifteenth day of May, in the year of our Lord one thousand eight hundred and sixty-five. From the day on which the said deed was executed till the death of the grantor there were standing on the books of the City Treasurer of Charleston one hundred and sixty-six thousand one hundred and ten dollars in city of Charleston, six per cent, stocks, to the credit of the grantor.

On the second day of December, in the year of our Lord one thousand eight hundred and sixty-five, Thorny H. Willingham, one of the defendants, (the other having declined to accept the trusts conferred upon him by the deed,) transferred one hundred and fifty-seven thousand *three hundred*dollars of the Charleston six per cent, stock (as is alleged by the bill, and sustained by a copy of the transfer which was admitted in evidence by consent) “ to Daniel Eavenel, president of the board of trustees of Charleston College, for Charleston College.” The . de-' fendants in their answer state, that on the day last aforesaid Thomas H. Willingham transferred one hundred and fifty-seven thousand *seven hundred*dollars of the six per cent, stock of the City of Charleston, being the amount given by the said Baynard to the said college, less a commission of five per cent., and that they are advised they are entitled to charge the same, to wit, the sum of eight thousand three hundred dollars, under the authority of an Act of the General Assembly of the State of South Carolina, passed in 1745; 1 Brev. Dig. 392; and *198this bill was filed for tbe purpose of compelling tbe said rustees to transfer to the trustees of tbe College of Charleston tbe balance of tbe capital of said stock, and to pay over to them all arrears of interest since tbe death of tbe donor.

By tbe common law a trustee is not entitled to any compensation for personal trouble or loss of time in tbe man-. gement of a trust estate; and in South Carolina tbe law is tbe same, except so far as it has been altered by statute. In tbe case' of *Muckenfuss*vs. *Heath and*another, 2 McM. Cb. 182, Chancellor Harper intimates tbe opinion that tbe Act of 1745 only modifies tbe law so far as to authorize trustees who have tbe management of tbe estate of infants to charge commissions, though tbe point was not involved in tbe decision of tbe case.

In tbe case of *Francis Moore*vs. *Executors of Eliza Kohne,*deceased, (a manuscript decision,) tbe point was made, but Chief Justice Dunkin waived the question, on tbe ground that tbe agreement under which tbe trust was created and accepted was made in Pennsylvania, and should be construed in its nature and incidents by the law of that State; that it was, therefore, unnecessary to decide what was the law of South Carolina as to tbe rights of a trustee in such cases; and, from tbe opinion which I entertain on other points in this case, I deem it unnecessary for me to attempt to decide tbe question.

Tbe direction of tbe deed to tbe trustees is “to transfer and deliver tbe certificate of stock to tbe Charleston College” immediately after tbe death of tbe donor. Is tbe transfer and delivery of any portion of tbe same a compliance with tbe terms of tbe deed ? Certainly not. It is tbe duty of an executor to deliver specific legacies to tbe legatee, and of a trustee to deliver specific donations to tbe *cestui gue trusts,*in all cases where tbe general assets of tbe estate or trust fund are sufficient to pay the debts and expenses incident to tbe execution of tbe trusts, without any *199abatement. And it is just as clearly tbe duty of tbe trustees in this case to transfer and deliver tbe whole amount of tbe stock to tbe trustees of tbe college as it would have been to bave delivered a watch or any other chattel under similar directions. But to tbis it is replied that tbe trustees are entitled to commissions. Suppose it to be admitted that they are so entitled, they are not to be paid out of tbis stock, but out of tbe general assets of tbe estate, or rather of tbe trust fund. See W illiams on Personal Property, 248. But tbe question recurs, Are tbe trustees in tbis case entitled to commissions ? In tbe case of *Buff vs. Summers,*4 DeS. 529, it was decided that *a*an executor could not charge commissions for delivering a specific legacy to tbe legatees, whatever trouble may have attended the service. He cannot charge for any services but the receipt and payment of money.” And there has been no case decided in tbe Courts of tbis State which has extended the doctrine laid down in tbe said decision further than this, that when an executor or other trustee, in tbe payment of money due by him in bis fiduciary character, transfers bonds, notes or other choses in action, held by him in bis said character, in payment of tbe same, though tbe bonds, notes or other choses in action might be refused by the party receiving them, and -the money demanded, yet he is entitled to his commissions as for so much money received and paid out by him. *Deas vs. Spann,*Harp. Eq. 176; *Gist vs. Gist,*2 McC. Cb. 174; and *Moore*vs. *Executors of Kohne.*It is therefore clearly tbe opinion of the Court that the said trustees, conceding’ to them all the rights of executors, are not entitled to commissions for transferring and delivering the certificate of stock to the trustees of tbe college, for it is done not in the payment of money due by them as trustees, but in obedience to the directions of tbe deed; and if it were necessary, I would pven go further and decide, that if tbe donor had directed them in tbe deed *200to pay over to the trustees of the college one hundred and sixty-six thousand dollars in money immediately after his death, that it would be their duty to pay over the whole amount, conceding their right to commissions, if the general assets of the trust fund were sufficient for their payment.

But suppose the first two objections to the defendants’ claim had been decided in their favor: would they then be entitled to commissions? I think not. The deed under which they act has fixed tl^e measure of their compensation ; and in accepting the trust they have become parties to it, and are concluded by its provisions; afid there is certainly no reason to complain that they are not sufficiently liberal in the compensation allowed.

On the question of interest, all the authorities agree that specific legacies of stock carry interest from the testator’s death; 2 Mad. Oh. 79; 2 Wms. on Exors. 876.; and if the general rule were otherwise, the direction in the deed to transfer and deliver the stock immediately after the donor’s death would fix that as the period from which it should be calculated in this case.

It is ordered and decreed that it be referred to.one of the Masters to ascertain how much of the said stock has not yet been transferred to the complainants; and also to ascertain the amount of interest in arrear, the same being computed from the 15th day of May, 1865, the day on which the donor died ; and that upon the same being ascertained, that the acting trustee, Thomas H. Willingham, do transfer and deliver to the complainants the residue of the city of Charleston six per cent, stocks, with all the arrears of interest ascertained by him to be due, calculated from the time aforesaid. '

It is further- ordered and decreed that the bill as to Benjamin L. Willingham be dismissed.

And it is further ordered and decreed that the costs of these proceedings be paid by Thomas H. Willingham. *'*

*201The defendants appealed, on the grounds :

1. That all trustees are entitled to commissions by the Act of the General Assembly, and the decisions of our Courts, unless expressly excluded by the will or deed. A. A. 1745, P. L. 201; 1 Brev. Dig. 392; *Muchenfuss*vs. *Heath,*1 Hill’s Chan. Eep. 182; *Ex parte Witherspoon,*3 Eich. Eq. 1.

2. That trustees are entitled to commissions on the transfer of stocks and bonds, in kind, where they are received in payment, or where a previous life-estate has been carved out and administered. *Gist*vs. *Gist,*2 McCord’s Chan. Eep. 474 ; Eice Eq. 2.

8. That specific donations are governed by the same rules of law as specific legacies, and may in like manner be adeemed or abate when necessary. 1 Eoper on Legacies, 190, 254.

*Whaley,*for appellants.

*Porter*and *Conner,*contra.

The opinion of the Court was delivered by

Inglis, A. J.

Persons sustaining fiduciary relations, although entitled to be reimbursed their actual *expenditures*in the execution of their trust, are not, in the absence of statutory regulations to this effect, entitled, merely by virtue of the relation, to any allowance for their *ucare and*trouble” therein. Such relations were in their origin mere honorary confidences, and the service and labor involved were considered only a fulfilment of the obligations of friendship and benevolence. A right to compensation may, however, be conferred in the creation of the trust by its *202terms, or it may be tbe subject of express contract between the parties. A bargain to this effect, even between trustee and *cestui que trust,*if tbe latter be *sui juris,*although to be regar ¿led with jealousy and scrutinized with rigor before it will be respected and enforced, is not necessarily void. Such is the general rule of equity jurisprudence on this subject. Lewin on Trusts, 545; Hill on Trustees, 574; *Robinson*vs. *Pett,*3 P. Wms. 132; 2 Lead. Cas. Eq. 206, et seq.

Here, at a comparatively early period of our separate jurisprudence, the general rule was, to a large extent, at least, if not entirely, superseded by statute, and the allowance of compensation for “ care, trouble, and' attendance,” in the form of commissions, was made legally -incident to the relation, certainly in several of its forms, “All and every executor, administrator, guardian, or trustee, shall for his, her or their care, trouble, and attendance in the execution of their several duties and trusts, take and receive or retain in his, her or their hands, a sum not exceeding two pounds and ten shillings for every hundred pounds which he, she or they shall hereafter receive; and the sum of two pounds and ten shillings for every hundred pounds which he, she or they shall hereafter pay away in credits, debts, legacies or otherwise, during the course and continuance of their or either of their management or administration, and so in proportion for any sum or sums less than one hundred pounds.” ■ A. A. 1745, Sec. 11. (1 Brev. Dig. 392.) The *sixth*section of the same statute requires “ guardians, and *trustees who shall have the care, management,-and custody of the estates, real or personal, of any infant or minorf*to render from time to time inventories of the trust property in their hands and accounts of moneys received, &c. From construing the two sections together, it has been commonly assumed that the statutory allowance of commissions is applicable to the case of *trusteep*only where their *cestui que**203*trusts*are infants, and therefore incompetent in law to allow compensation by their own consent, and that the claim of a trustee for an adult *cestui que trust,*to an allowance for his care and trouble in the administration of his trust, must rest upon the terms of his appointment, or of express contract with his *cestui que trust,*or else abide the application of the general rule. In *Muckenfuss*vs. *Heath,*1 Hill Ch. 182, it was expressly decided that.a trustee, who, under a deed, held real and personal property for the use of a *minor,*was within the very letter of the Act of 1745, and so entitled to the commission, allowed therein. The reasoning of the Court apparently assumes that a trustee for an adult would not, under the terms of that Act, be entitled. But the' law on this particular point has not been ascertained by an authoritative adjudication. It will be observed that, although the statutory allowance to trustees, &c., is “ for their care, trouble, and attendance, in'the execution of their several duties and trusts,” yet the basis on which the commissions are to be calculated is the aggregate of the receipts and payments of money. The course of decision on the cases which have, from time to time, called for the judgment of the Court upon the proper interpretation of the statute has established this distinction. Where the legacy is of a specific thing, and to be satisfied only by the delivery of that thing in kind, commissions upon the value of such • legacy are not chargeable upon the general estate, even much less upon the legacy itself. Thus, in *Ruff*vs. *Summers,*4 Des. 529, testator disposed of his estate chiefly in specific legacies, and the executors claimed to charge the estate in their accounts two and one-half per cent, commissions for paying or delivering these legacies, but the Court disallowed the charge. But wherever a demand against the estate, whether debt, legacy or distributive share, is to be or may be satisfied by payment in money, thére, if by consent or agreement between the parties, property, choses *204in action, stocks, &c., are given and received as money and at a money value, commissions are chargeable upon the payment of such debt, legacy or share, as commissions are chargeable upon every transaction which is substantially, though it may be not in form, the receipt and payment of money. Thus in *Deas*vs. *Spann,*Harper Eq. 176, certain distributees purchased property at the sale of the estate and gave their bonds. On a settlement with these distributees their bonds were delivered to them as payment *pro tanto*of their shares, and upon the amount of these bonds so delivered, as upon money payments, the whole Court held that the executor was entitled to charge the usual commissions. So in *Gist*vs. *Gist,*2 McC. Ch. 473, the executors sold the estate, under an order of the Ordinary, on credit, 'and took bonds from the purchasers. Some of these bonds were transferred by them in payment of debts of the testator, and the residue remained in their hands, in specie, to be distributed among the heirs. In their accounts they charged commissions on the *whole*amount of the bonds as on so much money. The Commissioner and the Circuit Chancellor refused the commissions on those retained for distribution. But the Court held that they were entitled to commissions on the whole. In these cases the whole property had, by competent authority, been converted into money securities. The distributees were not in terms entitled to any specific articles, but only to a share of the residue. A partition of the estate in kind was no longer possible; they could only have a decree for so much money. The executor was entitled to time to convert the securities into money. If, in anticipation of the proper period of distribution, or for any other reason, they chose to take the securities themselves, they took them as money and in satisfaction of a money demand. In *Moore*vs. *Kohne’s Executors,*decided in the Circuit Court for Charleston, at February Term, 1857, and not brought up by appeal, to which reference is *205made in the present circuit decree, several questions were made on the subject of commissions. William Eavenel, who was one of the executors of Eliza Kohne’s will and a defendant in the cause, had also been a *trustee*for her and others under an agreement or deed executed by her in Pennsylvania, by the terms of which deed no provision was made for compensation to the trustee. One of the questions made disputed the right of the trustee (the *cestui que trust*being an adult and *sui*juris) to retain commissions on his receipts and payments. The deed creating the trust having been executed in Pennsylvania, where most of the parties were then resident, “ with no reference or stipulation as to performance elsewhere,” it was held that the claim of the trustee to commissions must be determined by the law of Pennsylvania, according to which law, it appeared from the evidence, commissions were in such cases allowed under the equity of an Act of Assembly. A wholly distinct question was made upon the administration, by the then defendants, as *executors*of the estate of Eliza Kohne, which came to their hands under the appointment of her will. The plaintiff, Prances Moore, was sole residuary legatee under this will. She filed her bill in July, 1853, for an account of the administration, and payment of the residue. Pending the proceedings, she received from the executors, while the event of her suit, so far as respects the *amount*of the recovery was not only unascertained but also uncertain, various public securities, at an appraised or estimated money value, some at par and others at a discount, and gave them a receipt for the aggregate value as of so much money, to wit, *“*twenty-six thousand one hundred and forty-seven dollars and ninety-nine cents, on account of testatrix’s bequest of the residue of her estate,” with a stipulation that if, as the result of the accounting which was in progresss, this sum should prove to be in excess of the residue to which she should be found entitled, *206she would make good and pay to them the balance in excess. The' .right of the executors to charge and retain commissions on the sum so paid was disputed by the plaintiff but affirmed by the Court. This seems to be in strict conformity with the principle settled by the previous cases.

Such has been the construction of our statutes on the questions made in the argument of the present cause. But the Acts of Assembly which settle the allowance to be made to persons sustaining certain fiduciary relations for their care and trouble in the administration of their trusts, do not supersede the right of parties who are thereto legally competent to make their own contracts in this ’particular. If they agree upon a different form or rate of compensation, their agreement will constitute the law of the particular case, and as such be enforced. Only when the particular law is silent, the general law speaks. In the creation of *Baynard’s*trust’ the parties have exercised this right and made the law for themselves. The Act of 1745 has, therefore, here no place for operation, and the question, whether, under that statute, trustees generally, without discrimination in reference to the legal competency of their *cestui que trust,*are entitled to the commissions therein allowed, cannot arise. It need scarcely be said that it is contrary to the rule of this Court, as it would be indeed in violation of the proprieties of its office, to go outside of the case to ascertain and affirm a general rule of law for the satisfaction of the community at large or of the profession. It-is, moreover, a familiar fact, that an expression of opinion by the Court, on a point not necessarily involved in the adjudication of the particular case before it, does not carry conviction or satisfaction to the mind of the profession, as to the final settlement of the particular question which is the subject of such expression.

The trust created by the Baynard deed consists of two parts — one, the - management of the property conveyed *207during the residue of the settler’s life, and the other, its disposition immediately upon his death; and for the care and trouble of the trustees involved in each of these parts, a different rate of compensation and a different basis of its calculation is established. The second part of the trust requires the trustees, immediately upon Baynard’s death, to transfer and deliver to the Charleston College the one hundred and sixty-six thousand (166,000) dollars in the city of Charleston six per cent, stocks, which by the deed had been conveyed to them, and to convert all the other trust property into money by “ conveying the same for the best prices that can be obtained,” which is only another form of expression for *selling.*The compensation allowed them for their care and trouble in the execution of this part of their trust is five per cent, on the proceeds of such sales. The delivery and transfer of the city stocks, in conformity with the direction of the deed, is not a sale; there is no single distinguishing element of a sale in such, a transaction. But if, by any latitude of interpretation, such a transfer could be embraced under the description “ sales,” what are the proceeds of such sale ? These constitute the only basis for the calculation of the five per cent, commissions. When a sale proper is effected, the money, or the thing received in exchange for the specific article sold, constitutes the proceeds of the sale. Such a use of the term “ proceeds ” is appropriate and familiar. ' But what was received by, or proceeded to the trustees, from the transfer of this stock ? Nothing whatever. This was a mere donation, a gratuity. Of such a transaction, from its very nature, there could be no "proceeds.” The appeal claims to calculate the commissions upon, and deduct them from, the stock itself in kind. But there is clearly no authority in the deed for such a proceeding as this. By its terms the whole stock— the very one hundred and sixty-six thousand dollars city six per cent, stocks, identical with that described in the *208conveying part of the deed — is to be "delivered and transferred.” There is no warrant for any deduction or diminution. The donee is to have the whole. But only the *net*proceeds of the residue of the property is to be divided among the fourteen nephews and nieces. The net proceeds must be the proceeds after subtracting therefrom some sum chargeable upon the gross proceeds, and in this case that sum clearly is whatever commissions, costs and charges are authorized to be retained at all, as a compensation for the care and trouble of the trustees in the premises.

If *all*the donations in a deed are *specific,*and compensation by commissions on the whole property is expressly provided for, or, in the absence of such express provision, is under the general law chargeable, the charge in such case can only be satisfied by a proportional abatement of all the gifts, or a *quasi*taxation upon each of its share of the charge; for, by the supposition, there is no other fund to satisfy the terms. But this deed provides for one specific gift, and then a distribution of the net residue, converted into money, after the deduction of commissions, costs and charges. If the view of the intention of this deed which the appeal urges could be entertained, and the trustee be held entitled to commissions on the par or other value of the stock transferred, and it were doubtful whether in such view the commissions are not expressly charged on tbe residue, yet, reasoning to the proper interpretation of the deed from the analogies to be found in the construction of the statute law, the fund chargeable with such commissions would be not the specific gift itself, but the other property of which only the net residue is given, for such residue must bear all the charges unless expressly relieved. So, also, if the terms of the deed left any room for doubt whether the settler intended that the trustee should take'commissions on the stock transferred, analogies drawn from the same source would conduct to a conclusion unfavorable to the claim of the *209trustee. *Ruff*vs. *Summers.*But the language of the trust-deed itself clearly enough evinces the intention of the settler, and resort to such extraneous aids is not necessary. The Court is well satisfied that the trustee is not entitled to the commissions which are claimed by this appeal, either as against the specific stock or against the general estate.

The decree of the Circuit Court is affirmed, and the appeal is dismissed.

Dunkin, C. J., and "Wardlaw, A. J., concurred.

*Appeal dismissed.*