#### MAGRUDER *v.*DRURY.

Equity; Accounting; Trustees’ Commission; Auditor; Res Judicata; Decrees.

1. The matter of the allowance of commissions to trustees in an equity cause is within the sound discretion of the court, and in most cases compensation for their services is gauged by a certain percentage on the amount of the estate.

2. A report of the auditor which has been confirmed should be permitted to stand unless there is some obvious error or mistake therein (following *Richardson*v. *Van Auken,*5 App. D. C. 209; *Grafton*v. *Paine,*7 App. D. C. 255; *Smith*v. *American Bonding & T. Co.*12 App. D. C. 192; *Hutchins*v. *Munn,*28 App. D. C. 271, s. c. 209 U. S. 246, 52 L. ed. 776, 28 Sup. Ct. Rep. 504, and *France*v. *Coleman,*29 App. D. C. 286); and this rule applies to an award by the auditor of compensation to court trustees for their services.

3. A decree confirming a report of the Auditor in an equity cause, allowing court trustees compensation for their services of 5 per cent of the principal of the personal property, and 10 per cent of the collections from both the real and personal property of a trust estate of over $400,000, was *affirmed*on the ground that, while the allowance was a liberal one, it was not obviously excessive, or shown to be founded on mistake, where it appeared, among other things, that the estate was in the charge of the trustees for many years, during which time they made several accountings, in which they were allowed 10 per cent commission on the income without objection; that the bulk of the personal property consisted of second trust notes for small sums, many of them payable monthly, involving approximately three thousand transactions by the trustees in collecting them; and that the trustees collected the rents of the real estate, looked after repairs and kept the property insured, paid oflt thirty-three trusts, aggregating $100,000, acquired twenty-four parcels of land by foreclosure and one parcel without foreclosure, sold sixteen parcels and two party walls, bought four parcels, secured the cancelation of taxes, and perfected the title to one parcel,—all of which transactions involved great responsibility and extensive services.

4. The adjudication of the domicil of a decedent by the probate court of a foreign jurisdiction, involved in the granting by that court of letters testamentary on his estate, is not conclusive of the fact of domicil *520in the proper proceedings in the courts of this District, or of their right to administer such of the estate as is actually within this jurisdiction. (Following *Overby*v. *Gordon,*13 App. D. C. 392, s. c. 177 U. S. 214, 44 L. ed. 741, 20 Sup. Ct. Rep. 603; and citing *Richmond & D. R. Co.*v. *Gorman,*7 App. D. C. 91.)

5. Where executors who had qualified in Massachusetts and whose accounts there had been settled without objection, turned over the estate in their hands to trustees subsequently appointed in this jurisdiction in an equity cause here, in which it was determined that the testator was domiciled here when he died,.and not in Massachusetts, less the sum of $18,800 allowed them as commissions by the probate court in Massachusetts, and the auditor of the equity court in the trustees’ first account, without objection, charged them with the-net balance so received from the executors, it was *held*on an appeal from a decree confirming a report of the auditor, stating a subsequent account in which the auditor, over objection, refused to charge the trustees with the $18,800, that the parties interested were estopped to impeach the settlement by the Massachusetts court of the executors’ account, and also that, although one of the trustees was also one of the executors, the allowance for executors’ commissions was not an element for consideration in fixing the trustees’ commissions.

6. A trustee should not deal with himself, and in any transaction with the trust estate in which he has made a loss by such dealing, he should be held to the strictest account, and if he has realized profits he should1 be made to account fully for them.

7. Where trustees, in investing trust funds in their hands, buy trust notes. at their face value, with accrued interest, from a real estate brokerage firm of which one of the trustees is a member, and it- appears, that the firm had. received commissions from the makers of the notes on making the loan evidenced by the notes, but it does not appear that the trustees received any part of such commissions, and that the-notes are all good, being worth their face value with accrued interest,, the trustees are not chargeable with any part of the commissions so received by the brokerage firm.

8. A decree confirming a report of the auditor, stating the final account of court trustees, properly provides that when the trustees shall file vouchers showing the distribution and final disposition by them of the trust funds in their hands or shown by the auditor’s report, they shall be and are discharged of and from their office of trustees under their appointment in the cause.

9. Where a final decree confirming a report of the auditor, stating the final account of court trustees and discharging the trustees, was open to the' erroneous construction that it also terminated the administration of a different trust in the hands of the same trustees, an *521appeal from the decree was remanded with directions to the lower court to correct the decree accordingly.

No. 2265.

Submitted October 12, 1911.

Decided December 4, 1911.

Hearing on an appeal from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, ratifying' and confirming a report of the auditor stating the final account of the court trustees.

*Affirmed.*

The Court in the opinion stated the facts as follows:

This is an appeal from a decree confirming the auditor’s report settling the final account of the trustees of the estate of William A. Hichardson, deceased, and ordering their final discharge.

Judge William A. Hichardson died in the District of Columbia, October 19th, 1896, leaving a will executed August 9, 1895. He had resided in the District for many years, being, at the time-of his death, chief justice of the court of claims. The will recites that he is a citizen and inhabitant of Cambridge, in the county of Middlesex, Commonwealth of Massachusetts. After making certain special bequests, he devised and bequeathed all the rest and residue of his estate to his executors upon the following trusts: To collect the income of the principal, pay taxes, insurance, repairs, and other expenses. To expend so much of the income (and of the principal, if necessary, in case of an emergency) to be used as may be required for the support of his daughter, Isabel Hichardson Magruder, and for the support and education of her children. If the daughter live until a child' marries, has a family, or cease from any cause to live with her, then the income shall be apportioned among her and her childdren by the executors, in such proportion as they deem best. The executors are authorized to permit the daughter and children to occupy the residence in the city of Washington, and to use the household goods, etc., or provide another residence for them, if, in their discretion, they should conclude to sell or lease the homestead. Provision was made for advancements to the *522•children under certain conditions. It was provided that at the decease of the daughter the whole trust estate, including what remains of the original investments, real or personal, made by the executors, and all personal chattels not used by his daughter in the maintenance of herself and family, should be given to the children of the daughter then living, or to the issue of any ■deceased child, free and discharged from any further trusts, provided that one half shall be turned over to such child at the age ■of twenty-three, and the other half at the age of twenty-six years.

The executors were empowered to sell at private sale, and to ■convey any part of the real and personal estate; to execute any ■agreements to convey real estate, and any declarations of trust made by the testator which may be outstanding at the time of his decease.

George F. Richardson, of Lowell, Massachusetts, and Samuel A. Drury, of Washington, District of Columbia, were appointed executors of the will, and no bond was required of them. A .grandson, Alexander R. Magruder, was named to be appointed by the probate court an additional coexecutor when he attained the age of twenty-one years.

When ever a vacancy should occur in the office of executor, it was directed that in the place of George F. Richardson a Massachusetts man be appointed; in the place of Samuel A. Drury a business man of the city of Washington, or one of the loan and trust companies of the said city. It was provided that the ■executors shall be paid each for the actual services rendered by himself only, and they shall not be responsible for each ■other’s acts.

The final clause was: “Whatever powers, authority, or discretion I have given to my executors I give to whosoever shall ■settle my estate, and I see no reason why my executors may not perform all the duties of the trust under their appointment -as executors, without being specially bonded as trustees.”

■ Pursuant to the request of the testator, the said will was filed for probate in the probate court of Middlesex county, Massachusetts, and duly admitted to probate there. The testator left one child, his daughter, Isabel, then the wife of Alex*523ander F. Magruder. She died in the District April 4th, 1898, leaving as her heirs at law and next of kin Alexander E. Magruder and Isabel E. Magruder. On December 30, 1898, the said Alexander E. Magruder and Isabel E. Magruder, by their father and next friend, Alexander F. Magruder, filed a bill in the supreme court of the District naming George F. Eichard.son and Samuel A. Drury, defendants. Samuel Maddox, one of the appellees, filed the bill as solicitor of complainants. After reciting the facts relating to the will, and the relationship •of the complainants to the testator, and the death of Isabel E. Magruder, the bill charged that said William A. Eichardson had been a resident of the State of Massachusetts up to the 11th -of April, 1872, at which time be became Assistant Secretary -of the United States Treasury, and removed with his family to the city of Washington, where he thereafter made his home until his death. During that period he was Secretary of the Treasury from the 17th of March, 1873, to 2d day of June, 1874; associate justice of the court of claims from July 2d, 1874, to January 20th, 1885, and chief justice of that court -from January 20th, 1885, to the date of his death. During .al that time he continued to live with his family in the city -of Washington, which he repeatedly declared was to be his home for the rest of his life. After removing to the said city, he did not exercise any of the rights of citizenship in the State -of Massachusetts, and did not even return to the said State more than a few times, and then only for short visits.

In September, 1876, he bought a burial lot in the District of •Columbia, and had his deceased wife buried therein. At his ■request his body was also interred in said lot.

Early in the year of 1885, he purchased a lot in the city of Washington and erected a dwelling at a cost of $35,000. In this house he lived until his death, and his daughter, Isabel, made said house her home after his death by permission of defendants.

In pursuance of his intention to make the city of Washing-Ton his home, William A. Eichardson soon began to close out .his investments in the State of Massachusetts, and invested all *524of Ms money in the city of Washington, principally in real estate securities. At the time of his death, he had no property whatever in said State, except one or two parcels of unproductive real estate of trifling value. At the time of his death he was seised of considerable real estate in the District of Columbia, and possessed of personal estate consisting principally of loans on real estate security in said city, aggregating' upwards of $300,000. That notwithstanding these facts, the defendants, as executors of said will, yielding to a recital at the commencement thereof, to the effect that the testator was-a “citizen and inhabitant of Cambridge, in the .county of Middlesex, in the Commonwealth of Massachusetts,” caused the-said will to be filed for record and probated in one of the probate courts in said county and State.

Complainants charge that the said court of probate was without jurisdiction in the premises, and has not, and cannot-have, any authority or. control whatever over the said estate. They fear that unless they are protected in their rights, they will be subjected to inheritance and other taxes and dues in said State, although their said grandfather, William A. Richardson, had many years before established his permanent residence and home in the District of Columbia.

That, under and by virtue of the powers and authority in said' will contained, the defendants, as executors thereof and trustees thereunder,' will have full and absolute control over said property and estate, until the plaintiffs obtain the age of twenty-three and twenty-six years, and that they will receive and', disburse large sums of money for the objects and purposes in the said will specified. Complainants believe they are entitled to have defendants account in this court for all the property and estate passing under said will, from time to time, and as-often as may be necessary, and that such an accounting will be' a protection to the defendants in the execution of their trust.

Complainants further believe that the said George F. Richardson has filed in the- probate court of Middlesex county, Massachusetts, his resignation, both as executor and trustee-under the will.

*525Prayers of the bill are: That the will and testament of said William A. Eichardson may be construed, and the rights of these plaintiffs thereunder ascertáined and fixed, by a decree •of this honorable court.

That an account may be taken of all the property and estate which have been received by the defendants as executors and trustees under said will, and which, without wilful default, they might have received since they qualified as such executors, without abatement for charges or taxes claimed by the state •of Massachusetts.

That the said executors be required from time to time to file acounts, and as often as may be necessary, showing what moneys they have received and the disposition thereof.

That, if it be true that the said George P. Eichardson has filed his resignation as executor, and refuses and declines further to act as such, some fit and proper person may be appointed in his place and stead, to carry out the wishes and intent of said testator as set forth in his last will.

An amended bill was filed March 6th, 1899. It was averred that since the death of the testator several deeds of trust intended to secure the payment of certain notes belonging to his estate have been foreclosed, and the real estate by them secured bought in by defendants for and on account of said estate, upon which taxes are now charged in the District, and paid out of the estate of said deceased.

The defendant Drury answered the bill admitting the general facts alleged therein. He averred that many years prior to the death of the testator, defendant, with one John T. Arms, had charge of the investment of the money of the testator. A large part of it was invested in what are called second trust notes. During the year 1893, the business depression produced a material decrease in real estate values in said District, which has since continued. In consequence of this depression and decrease, many parcels of real estate given as security for the payment of said notes have been sold since the death of said deceased, at public auction, and bought in for the account of the estate, to save it from loss. Some fifteen or twenty differ*526ent parcels have been sold and bought in with the result that, many thousands of dollars of personal property have been thereby converted into real estate, which is taxable only in-said District.

That before his death the testator deposited his last will with, him, this defendant. That said George F. Kichardson, a resident of Massachusetts and a brother of the deceased, came on to attend the funeral. After the services, the will was handed to said George F. Kichardson, who then stated that it was hiS' deceased brother’s wish that his will should be probated in Massachusetts and his estate there administered. The defendant interposed no objection to said procedure, and consented to said probate and administration, not being then advised that-there was any question of jurisdiction of the Massachusetts court to admit said will to probate, and relying in that behalf upon-his coexecutor, the said George F. Kichardson, who was> a lawyer of learning in that State.

Defendant admitted that George F. Kichardson is not undertaking to manage or control the estate of said deceased, or in any way to interfere with the management of this defendant. He admits that he has had the entire care, custody, and management of said estate since the will was probated, and is rer sponsible for all the money paid out and expended, and now has' in his possession all the personal assets of the estate. The-defendant is willing to account in this court, or in any other court having jurisdiction, for all the moneys and other property received by him, and to hereafter account from time to-time.

On April 1st, 1899, an order was entered appointing Samuel A. Drury and Samuel Maddox trustees, to perform the trust created and to receive from the executors all the property whereof the deceased died seised and possessed. Said trustees were required to give bond, each in the sum of $25,000.

On October 18th, 1899, the court entered an order referring to the auditor to return the amount and character of the estate whereof the late William A. Kichardson died seised and pos*527sessed, and to state the account of the executors and trustees-under the will of said deceased.

The report of the then auditor, James Gr. Payne, was filed December 19th, 1900, and attached thereto are schedules setting forth items of personal property and real estate. The trastees are charged with the personal estate received from the executors, amounting to $270,209.04. Among the credits allowed are commissions to the executors allowed by the probate court of Massachusetts, $18,000. After deducting this and other items of expenditure, etc., they are charged with $221,942.47. A special account is rendered of the Eliza C. Magruder trust, a trust fund in the hands of the testator, to the administration of which the present trustees succeeded. It appears that four other successive yearly reports were made of the administration, but the same are not set out in the record.

January 15th, 1909, an order was made referring the case-to the auditor to state the account of the trustees to January 17th, 1909. Owing to the death of Auditor Payne no report was made.

On June 16th, 1909, Alexander E. Magruder and Isabel E. Magruder filed a petition in said cause in which they set forth the clause of the will directing payment to the said complainants of one half of the fund upon the attainment of the-age of twenty-three, and the remainder at the age of twenty-six years. It was alleged that Isabel E. Magruder, the daughter of the testator, died April 4th, 1898, leaving surviving her the petitioners. It sets out the decree of April 1st, 1899, appointing Samuel A. Drury and Samuel Maddox trustees. It is alleged that on the petition of Drury and Eichardson under the will, the same had been admitted to probate in the county of Middlesex, Massachusetts, and that on April 11th, 1899, the said court had ordered Drury and Eichardson to pay over said property of said estate to the said Drury and Maddox, trustees as aforesaid. Afterwards, on April 25th, 1899, said executors filed in said probate court their first and final account, which was approved by said court. *528A copy of the inventory filed in the probate court is attached :as an exhibit to the petition.

It is further alleged that one of the petitioners, Alexander E. Magruder, when he became of age, made application to the ■court to be appointed a cotrustee with the said Samuel A. Drury and Samuel Maddox, and by order he was duly appointed to act in connection with said Drury and Maddox as a trustee, and gave bond as was required by said decree. But ■since the receipt by the trustee of the property transferred and ■delivered to them by the order of the said probate court of Middlesex county, Massachusetts, on the 25th day of April, 1898, said trustees Drury and Maddox have had the possession, management, and control of the assets and property of said estate. The petitioner Alexander R. Magruder has had no active participation in the management thereof, nor in the execution of the aforesaid trusts. That said trustees have from time to time filed their accounts in this court,—five in number, —which have been referred to the Auditor and passed by him. There is now before the Auditor their sixth account, which is under consideration.

Alexander R. Magruder attained the age of twenty-three years on the 17 th of January, 1906, and under the terms of the said will, became entitled to receive from said trustee, and to have and hold in his own right, one-fourth part of the assets of said estate; but he made no request therefor and allowed the same to remain in the custody of said trustees.

The petitioner Alexander E. Magruder attained the age of twenty-six years on the 17th day of January, 1909, and then became. entitled under the terms of the aforesaid will to have turned over to him one half of said estate and of all the property and funds constituting the same, and he thereupon, and before said 17th day of January, notified said trustees in writing that he desired to have his proportion of said estate at once transferred and conveyed to him.

The petitioner Isabel E. Magruder attained the age of twenty-three on the 20th day of April, 1909, and thereupon became entitled, under said will, to have turned over to her *529one quarter of the said estate and of all the properly and ■funds constituting the same, and notified said trustees in writing before the 20th day of April, 1909, that she desired to have her proportion or part of said estate at once turned over, transferred, and conveyed to her.

The said trustees Samuel A. Drury and Samuel Maddox have made and presented to the petitioners a paper writing headed, *“A*list of assets comprising estate of William A. Richardson, deceased, in possession of Samuel A. Drury and Samuel Maddox, trustees, January 17th, 1909,” which is hereto attached ■ and marked Exhibit “C.” In said statement or schedule are notes supposed to be good and well secured; real estate, the title of which is supposed to be good; stocks supposed to be good; property to be held jointly by Alexander R. and Isabel R. Magruder.

Petitioner caused Messrs. Baker and Addison to make a valuation of each item of said property, and to present a plan of division between petitioners. Acting upon the advice of Messrs. Baker and Addison, and with the approval of said trustees, subject to the approval of this court, the petitioners have agreed upon and elected to make a distribution of the property in said statement. Alexander R. Magruder is to have turned over to him all the notes and pieces of ground and stocks described and enumerated in said allotment R. Under the terms of said will, all the notes described in said allotment A, and also the pieces and parcels of land therein described, are to be held in trust. This is estimated to be one fourth of the said trust estate.

The said petitioner Isabel R. Magruder is to have turned over and conveyed to her all the other pieces and parcels of land and properties described in the said exhibit B, under the heading allotment A.

Several other items of property are to be held jointly by her and Alexander R. Magruder, as tenants in common.

Petitioners are informed that said trustees are willing and prepared to turn over and convey the said properties as herein indicated and provided, and to resign from and be devested *530of the trusts, powers and title imposed and vested in them under the said will and the aforesaid order of this court, so far as the same relate to and affect the notes and the said two-pieces or parcels of land aforesaid; and that the American Security & Trust Company may be substituted in their place- and stead as trustee, to bold and execute said trust in respect of said remaining notes and parcels of land, in accordance with the requirements of the said will and testament.

the petitioner Isabel R. Magruder, by an indenture of this-date, has conveyed to the American Security & Trust Company, trustees, in trust, and upon the trust therein set forth, all her right, title, and interest in and to all the properties-described in said allotment A.

Wherefore the petitioners pray: That the said trustees Drury and Maddox, and Alexander R. Magruder, may be-authorized' and directed to set over, assign, transfer, convey, and deliver to the said Alexander R. Magruder, by proper indorsement and conveyances, all the trust funds and property described in said Exhibit B, under the beading of allotment R.

That the American Security & Trust Company may by this-court be appointed trustee in the place and instead of the-Samuel A. Drury and Samuel Maddox and Alexander R. Magruder, in respect" of and for the said notes described in. Exhibit B, under tbe-beading allotment A, to be held in trust under said will for the said Isabel R. Magruder. That the said trustee may be directed to convey and deliver to Isabel R. Magruder all the property described in said allotment, except the property herein above last described, and that the trustees be authorized to turn over to the petitioners as tenants in common all the notes, properties, and real estate described in said allotment, to be held jointly. That the cause be retained in-this court for the purpose of having stated and settled the-Accounts of said trustees.

On July 9th, 1909, the court entered a decree on said petition, granting the prayers thereof and directing the trustees to make conveyances and disposition of the property in accordance with the prayers. February 3d, 1910, the former order *531not having been carried out, the court made another order directing that the cause be now referred to the auditor to state the final account of the trustees, and the distribution of the estate in their hands, and to report such commission or compensation as may be appropriate and proper; also to state the account of the said trustees in respect of what is known as the Eliza C. Magruder trust.

March 16th, 1910, a report of the auditor was filed, and it is on the exceptions to several items of that report on which the decree was entered that this appeal has been prosecuted.

In regard to the item of $18,800 allowed to the executors by the probate court of Massachusetts, to which objection was made by the petitioners, the Auditor stated that this item had been included in the report of his predecessors, heretofore referred to and made December 19th, 1910, which was confirmed, and he had no authority to reopen the account therein without specific direction of the court; and further stated that the allowance, having been made in the probate court of Massachusetts, could not be reviewed in this court.

Respecting the objection of the allowance of commissions', for the collection of rents in the third, fourth, and fifth reports of the auditor, the same conclusion with respect to his. authority to surcharge the previous account of the auditor was; renewed.

As regards the allowance of the trustee of 5 per cent commission on the principal, and 10 per cent commission on the-income of the trust estate, the report reviews at length the-nature and character of the services performed. It states that the bulk of personal property consisted of notes for small sums,. many of them payable monthly. He says that the transactions - with respect to these notes were almost innumerable, the total 1 number of the same approximating three thousand.

' As regards real estate, he reports that the trustees collected’ the rents, looked after repairs, and kept the property insured. That they have paid off thirty-three trusts, aggregating over-$100,000, including the trust upon the homestead; acquired, twenty-four parcels by foreclosure, and one parcel by, deed.1 *532without foreclosure; sold sixteen parcels and two party walls; bought four parcels; secured the concelation of taxes, and perfected the title to one parcel; all of these transactions involving great responsibility and extensive services on the part of the trustees. The trustees have given the services of a trained and experienced business man in real estate matters, and a trained and experienced member of this bar, during these years in the execution of this trust,—services which have been highly creditable to them and beneficial to the estate in every respect. He states that they are well entitled to the 5 per cent commission on the principal, and the 10 per cent on the income, and the same were allowed. In respect to the objection based on certain profits alleged to have been made by Arms and Drury, of which partnership the trustee Drury was a member, he reports that no profits were made by trustees in said transaction. It appeared that they had, from time to time, in making investments of the funds of the estate, purchased certain notes of Arms and Drury, which said notes were secured by trusts upon real estate, and were in the nature of builders’ loans. They represented advances made by Arms and Drury, and from which in making the loans the said firm realized from 1 to 2 per cent commission.

He found that Arms and Drury out of their own- money made loans secured by these notes, and received from the borrowers the customary commission of 1 and 2 per cent.

The report denied the claim of Alexander E. Magruder to .any share of the allowance made to the trustees Drury and "Maddox, because, as heretofore shown, Magruder, though appointed an additional trustee, never took any part in the management of the estate or the execution of the trust, and as a matter of fact has not resided in Washington since his appointment.

The report is accompanied with schedules showing several items of account and property distributed to the beneficiaries -of the trust; also separate schedule of the administration of the jEiza C. Magruder trust.

It appears from the report that the testator died possessed *533of 3,040 promissory notes; 118 secured by first deed of trust; 2,055 secured by second deed of trust; 322 partially secured; 487 security worthless; 58 of doubtful value. That during the period of the auditor’s first report, 849 collections had been made on the principal of notes amounting to $127,467.81; 937 collections of interest on notes amounting to $13,939.99; rein-vestments in the purchase of 49 notes, $74,307.40; reinvested by paying off trusts on real estate, $28,816.57.

During the period of the auditor’s second report, 428 collections of principal, amounting to $54,893.10, were made; 1,105 payments of interest on notes amounting to $20,046.99; collection from the sale of three parts of the real estate, $12,-004.83; reinvested in the purchase of 51 notes, aggregating $33,776; reinvested by paying off trusts of 13 pieces of real estate, $35,513.08; reinvested in the purchase of two parcels of real estate, $20,450.13.

During the period of the auditor’s third report, 360 collections on the principal of notes amounting to $60,384.68 were made; 716 collections of interest on notes amounting to $17,-589.20; collections from five parcels of real estate, $20,200; reinvested in the purchase of 40 notes $17,240; reinvested by paying off ten trusts upon real estate, $51,659.54.

Duirng the period of the auditor’s fourth report, 75 collections on the principal of notes $23,568 were made; 281 collections of the interest on notes, $10,733.49; five sales of real estate, $17,939.59; reinvested in the purchase of 14 notes, $15,000; reinvested by paying off two trusts on real estate $18,000.

During the period of the auditor’s fifth report, 121 collection of the principal of notes, $29,293; 248 collections of the interest of notes, $11,250.60; collected from the sales of three parcels of real estate, $8,930.42; reinvested in the purchase of ten notes, $35,150; reinvested by paying off one trust on real estate, $6,000; reinvested in the purchase of one parcel of real estate, $150.

*534The following general summary of the five reports of the auditor is given, as follows:

Collected from principal of notes in 1,833 payments ..................................$295,705.59

Collected interest on notes in 3,287 payments..... 72,560.27

Collected from fifteen sales of real estate........ 58,074.84

Total collections from all three sources......$426,340.70

Reinvestments.

In the purchase of 164 notes..................$175,473.40

In paying off 43 trust notes................... 139,989.19

In the purchase of three parcels of real estate..... 20,600.13

Total reinvestments.....................$336,062.72

Besides these there were many other transactions in real estate which were acquired under foreclosure sales, or direct deeds from the owner where foreclosures had been had, or the deeds •obtained on account of second trust indebtedness.

In the record there appears a certified copy of the proceeding in the probate court of Middlesex county, Massachusetts. The first among these is an order dated February 16th, 1897, .appointing appraisers of said estate. Among the items therein •scheduled are notes secured on real estate in the District of •Columbia, amounting to $216,755.05. Notes payable monthly secured by second deed of trust in Washington, District of Columbia, $76,961. Notes partially secured, $9,750. Doubtful notes amounting to $5,995. Notes considered as of no value, $32,619.78.

The real estate appraised consisted of lands in the District •of Columbia, Massachusetts, Missouri, and Colorado.

Next follows the petition filed April 4th, 1899, by Richardson and Drury, executors, representing the probate of the will of the deceased and the acceptance by the executors of the *535trust imposed. It set out that since the granting of said letters, there had been no personal property of the estate of the testator in the Commonwealth of Massachusetts; that since the granting of letters testamentary, Isabel R. Magruder, the only surviving heir, has deceased; and sets out the interest of her surviving children by the terms of the will. That they were the only living parties interested as beneficiaries of the trust at the time of the probate of the will, and they have since resided in the District of Columbia. That Samuel A. Drury and Samuel Maddox have been appointed by the equity court of the District of Columbia to administer the trusts created by said will. That Alexander F. Magruder has been appointed by said court guardian of said minors, and has duly accepted said trust.

William A. Richardson, at the time of his decease, was not a resident of the State of Massachusetts, but was a resident of the said Washington, and that all the parties interested under the trust in said will lived in the District of Columbia, and that said will should not have been probated in said probate court, but should have been probated in the District of. Columbia.

Wherefore, your petitioners, without waiving their rights as to the jurisdiction of this court to probate said will, but insisting that the same was probated in this court by accident and mistake, and should have been probated at said Washington, pray that they may be authorized to pay over said trust funds to said trustees appointed in said supreme court of the District of Columbia as aforesaid, and that upon such payment they may be discharged from further responsibility by decree of this court.

Alexander F. Magruder, of the District of Columbia, reciting himself as the duly appointed guardian of Alexander R. Magruder and Isabel R. Magruder, indorsed said petition, and signified his consent to the granting of the above petition, and requested that said authority be given the executors to pay over the trust funds in their hands to the trustees appointed by the supreme court of the District of Columbia.

*536The petition came on to be heard, and it was decreed that the said executors be, and are hereby authorized and directed to pay over said trust fund to the said Maddox and Drury, trustees. The executors were ordered to present an account of their administration of the estate, for the period beginning with the 24th of November, 1896, and ending with the 24th of April, ,1899. They filed an account charging themselves with the several items received, as stated in the schedule, aggregating $415,458.37. The items therein are set out in Schedule A. In Schedule 23 appears the list of the payments, charges, losses, and distributions of the property turned over to the trustees, amounting in the aggregate to $415,458.37. This was accompanied by a receipt of Maddox and Drury, trustees, of the items stated in the account as turned over to them.

One general item in Schedule B is as follows: The expenses of administration, including the care of property, the payment of debts, the collection of notes amounting to $226,607.54; investment of interest notes, $166,958.21; the collection from interest and other sources, $58,168.94; the payment of about $50,000 for repairs on real estate, including also the payment of moneys to Isabel 23. Magruder and Alexander R. Magruder, counsel fees in Massachusetts and in Washington, etc., $18,800.

It appears that during the administration of the estate in Massachusetts, that Commonwealth levied taxes upon the personal property for two years,. 1897 and ?98, amounting to about $7,500 per year. Collection of these taxes was resisted by the executors on the ground that the property was in the District of Columbia, and therefore not subject to taxation in Massachusetts. In that litigation the executors were represented by Samuel Maddox and the Hon. William H. Moody, then a member of the bar of Massachusetts. The fees of counsel were paid by Drury out of the item allowed for expenses, the said Richardson declining to accept any part thereof. The litigation terminated in favor of the estate, after the settlement of the account.

In reporting a settlement of this final account, the auditor *537charged the trustees with all the commissions received by thereunder the former annual reports.

A number of exceptions were entered to said report. Those that have been relied on relate to the allowance of the 5 percent commission on principal, and 10 per cent on income; ■to the $18,800 item allowed by the Massachusetts court; and to alleged profits made by the trustees in the purchase of notes for reinvestment.

The exceptions were all overruled, the report confirmed, and the trustees ordered to turn over the funds of the trust to the beneficiaries, and in part to a substituted trustee, and to be finally discharged on filing proper vouchers and receipts.

*Mr. Nathaniel Wilson*and *Mr. Clarence R. Wilson*for the appellants.

*Mr. J. J. Darlington*for the appellees.

Mr. Chief Justice Shedpard

delivered the opinion of the-Court:

1. The first exception to the auditor’s report is to the allowance to the trustees of 5 per cent commissions on the principal, and 10 per cent on the income of the estate. There is no statute in the District regulating the compensation of trustees, and the matter of allowance therefor is within the sound discretion of the equity court. The rule prevailing in the United States in this respect is different from the rule governing in England. Here “it is considered just and reasonable that a trustee should receive a fair compensation for his services; and in most cases it is gauged by a certain percentage on the amount of the estate.” *Barney*v. Saunders, 16 How. 535-542, 14 L. ed. 1047—1050. The commissions allowed in that case-were 5 per cent on principal, and 10 per cent on income. Discussing the rate, Mr. Justice Grier said: “The allowances as made by the Auditor in this case are, we believe, such as are customary in Maryland and this District, where the trustee *538has performed his duty with honor and integrity.” The commissions allowed in this case being within the power of the Auditor, it was his duty to determine from the evidence before him regarding the character of the services performed by the trustees, what would be a reasonable and fair compensation therefor. It is a well-established doctrine that the report of an Auditor, that has been confirmed, should be permitted to stand unless there is some obvious error or mistake therein. *Richardson*v. *Van*Auken, 5 App. D. C. 209—218; *Grafton*v. *Paine,*7 App. D. C. 255, 256; *Smith*v. *American Bonding & T. Co.*12 App. D. C. 192-198; *Hutchins*v. Munn, 28 App. D. C. 271, 279, S. C. 209 U. S. 246-250, 52 L. ed. 776-778, 28 Sup. Ct. Rep. 504; *France*v. Coleman, 29 App. D. C. 286-293.

It appears that it had been the practice of the testator for some years before his death,- to invest his money in loans of comparatively small amounts, secured by second mortgages on real estate in the District of Columbia. Many of the notes were payable monthly. At the time of his decease these investment notes constituted the larger part of his entire estate, and the bulk of his personalty. The first report of the former Auditor, in 1900, to which no exception seems to have been taken, allowed the trustees 10 per cent commission upon the income of the estate. The grounds upon which this allowance was made were thus stated in the report :

> “These collections and their disbursement form but a part of the service imposed upon these trustees and a much smaller part of their responsibility. I have taken into consideration the magnitude of the principal, personal estate, and its shifting character as illustrated by the conversion of more than one half of the promissory notes into money during the period of this account, and the reinvestment of the funds in other safe, interest-bearing securities, as well as the discharge of nearly $30,000 of liens upon the real estate. The compensation allowed in this report is less than the value of the service, but no more is claimed by the trustees.”

*539Like reasons were assigned by the Auditor in the report under consideration.

Without consuming time with the review of the evidence relating to the administration of the trust, we think it suffi■cient to say that while the allowance was a liberal one, it is not obviously excessive, nor has it been shown to be founded •on a mistake that, under the rule before stated, would justify .the setting aside of the report on the exception taken.

2. The next exception relates to the item of $18,800 allowed in the settlement of the final account of the executors by the probate court of Massachusetts. This amount is scheduled in the first report of the Auditor, returned December 17 th, 1900, as deducted from the trust estate charged to the trustees. In •other words, they were in effect charged with the net balance ■shown by that account as received from the executors. In the final report, the Auditor expressed the opinion that he had no ■power under the reference to reopen the account settled by his predecessor. Another ground assigned was that the equity •court had no power to inquire into, or set aside, the settlement made by the probate court. This report was based on the consideration that the administration and the responsibility of the “trustees, under the appointment of that court, extended only to the net balance ordered to be delivered to them by the probate court.

Appellants contend that the probate court of Massachusetts Lad no jurisdiction to probate the will, because the testator was ■domiciled in the District of Columbia; that its proceedings are void, and that the trustees are chargeable with the entire estate as it existed on April 1st, 1899, when the decree appointing the trustees was entered. It appeared that the testator had some real estate in Middlesex county, Massachusetts, and this gave jurisdiction to its court to probate the will, and, at least, to .•administer such of the estate as was in that state. A prima facie ground of jurisdiction was afforded by the recital in the will that the testator was both a citizen and an inhabitant of Massachusetts, which fact the executors confirmed by offering the will for probate. Whether this is a collateral attack on the *540judgment of this court, which will not be entertained (see *Richmond & D. R. Co.*v. *Gorman,*7 App. D. C. 91-106), is a question that does not necessarily arise. However that may be, the adjudication of domicil was not conclusive' of that fact in a proper proceeding in the courts of the District of Columbia, or of their right to administer such of the estate as was actually within their jurisdiction. *Overby*v. *Gordon,*13 App. D. C. 392-413, S. C. 177 U. S. 214-227, 44 L. ed. 741—746, 20 Sup. Ct. Rep. 603. There were no creditors in the District, and the only persons interested were the child and grandchildren of the testator, for whose benefit the trust was-created. No offer was ever made to probate the will in the District of Columbia, which was necessary to confer power on the executors to administer the estate therein. The only source of their authority was the order of the Massachusetts court admitting the will to probate, and issuing the letters testamentary which they received. They, submitted the entire personal estate (consisting chiefly of loans evidenced by notes and secured by mortgages in the District) to the appraisers appointed by that court, and administered the same under its-authority from the date of probate,—October, 1896,—until delivered to the trustees appointed by the decree of the equity court in April, 1899. Whether this voluntary submission by the executors of the personal estate in their actual possession, which was acquiesced in by the adult beneficiary and the guardian of the infant beneficiaries, to the administration of the Massachusetts court, constituted such an actual removal of the same to that State so as to bring it under the complete jurisdiction of that court, suggests another question that we need not decide. There is no conflict of jurisdiction between the probate courts of the two jurisdictions, for, as we have seen, there has never been an attempt to probate the will in the District. It is to be remembered that the immediate purpose of filing the bill to procure administration of the trust was to escape from taxation in the state of Massachusetts for the new taxing year about to begin. The allegations of the bill-- that testator was domiciled in the District, that his personal estate *541was situated there, and that the probate court of Massachusetts had no jurisdiction to probate the will and administer the estate, were in line with the main purpose and contentions in the pending suits in that state for the taxes of the two preceding years. There was no denial of these allegations by the executor, Drury, who- was the only defendant before the court. The reason assigned by him for the probate was that immediately after the burial of the deceased, he delivered the will to George F. Eichardson, a brother of testator and one of the executors nominated by him, who stated that it was testator’s wish that his will should be probated in Massachusetts. Defendant consented thereto, not being advised that there was any question of jurisdiction, and relying in that behalf upon the said Eichardson, who was a lawyer of learning and distinction in that state. Assuming it to be true, as alleged, that said George F. Eichardson had declined to act as trustee of the estate, he -consented to the appointment of another in his stead. No attack was made in the bill upon the administration of the estate for the intervening period. The prayers were that the will may be construed and the rights of plaintiffs thereunder ascertained; that an account be taken of all the property and assets which have been received by the defendant Drury as “executor and trustee” under the will, since he qualified as such executor, without abatement for assessments and taxes claimed by the state of Massachusetts; that defendant, as “executor and trustee,” be required to file accounts from time to time; that some fit person be appointed in stead of George F. Eichardson to carry out the trusts created by said will; and that defendant be restrained, in the meantime, from paying out any money in his hands for dues and taxes to the state of Massachusetts. The restraining order was at once issued. The decree rendered thereon continued the restraining order. It then recited that the testator was last domiciled in the District of Columbia, that the beneficiaries are there domiciled also, and then appointed Drury and Maddox trustees to perform the trusts created by said will, empowering them to receive from “the executors named in said will all of the property whereof the *542said deceased died seised and possessed.” No express adjudication was.made as to the jurisdiction of the Massachusetts, court, or as to the acts of the executors in offering the will for-probate there, and subjecting the personal property to appraisement and administration thereby. That there was no such, intended adjudication was the construction put upon it by all of the parties interested. The then appointed substitutetrastee, Maddox, had filed the bill as solicitor for the plaintiffs. Within the month thereafter Drury and Richardson, as executors, filed an account in the probate court showing their administration of the estate. Their petition recited the facts concerning the probate of the will, the interests of beneficiaries, and the-decree of the equity court aforesaid appointing trustees. It further stated that at the time of his decease the testator was not domiciled in Massachusetts, and that his will, instead of' being probated in Massachusetts, should have been probated in. the District of Columbia; and that the probate was the result of mistake. They prayed an order authorizing them to deliver the trust funds in their hands to the said trustees, and that they be discharged from further responsibility. The account rendered, among other items of credit for collections, payments,, etc., contained the item for expenses of administration, *aggregating*$18,800, that is now in question. An indorsement on; said account to the effect that the same had been examined, and was requested to be allowed without further notice, was signed-by the then infant beneficiaries, by their guardian, Alexander-F. Magruder, who was also their father, and by Maddox and Drury, trustees. Drury, it is true, was approving his own account, but Maddox had no special concern therein, save as representing the beneficiaries. The court entered an order approving the account and directing the executors to deliver the-estate to the trustees. On the back of this account, Maddox and Drury, trustees, executed a receipt to the executors for the items of cash and other personal property shown by the account to be in the hands of the executors. Thereafter, on October 18,. 1899, the order was made by the equity court requiring the Auditor to report the amount and character of the estate of.' *543which the testator died seised and possessed, and to state the-account of the executor and trustees under the will of the-deceased.

The auditor’s report, heretofore referred to as made December 19, 1900, returned an account showing the credit made by the Massachusetts court, and'charging the trustees with the balance shown by that account. No exception was made to this-report, and it stood confirmed under the rules of the court. Four other reports were made, and no exception was taken to-the recognition of the old account as the basis of the liability of the trustees. No attack was made upon the settlement of the account in Massachusetts, and no complaint made that the trustees were responsible for the entire estate of the testator-without diminution to the extent of the allowances made to the-executors in the settlement of their account by the probate court.

It is to be noted, too, that the active administration of the estate had been in the hands of the executors for more than two-years prior to the settlement of this account. Many collections of debts had been made and many reinvestments of money. The real estate was also being looked after, taxes were paid,, and litigation had been maintained with the state of Massachusetts on her claim for taxes for the years 1897 and 1898,— litigation that finally ended in favor of the executors after the settlement of this account. While it is contended that under the decree of the equity court the executors were required to turn over all of the estate of which the testator died seised and. possessed, and that the trustees became responsible therefor, all of the credits allowed in the account were accepted as-determining the amount for which the trustees should be held-to account, save and except the item of $18,800, allowed them for expenses of administration. The first objection made to this item, as we have seen, was in the exceptions to this final report and settlement.

In this connection another point suggests itself as entering-into the consideration. Under the law in force when the testator died, there was no provision for the probate of a will as-*544to real estate, in this jurisdiction; but wills of personalty were .authorized and required to be probated. The equity court had no jurisdiction to probate a will, and to establish and enforce one as to personalty. Whatever may be the latitude of the rights and powers of executors of unprobated wills by the rules of the common law, or whatever may be the limitations thereof resulting from our probate statutes, it is quite certain that they had no power to administer a trust of personal property created by will, without its probate in due form. As there was no probate in the District, the authority of the executors necessarily rested in the probate and letters testamentary of the Massachusetts court; and it was as such executors that they were brought before the court, and directed to deliver the property to the trustees appointed to administer the trusts in that will. The conditions recited, and the acquiescence of all the parties at interest in the proceedings and orders of the Massachusetts court, are sufficient, in our opinion, to stop them now to impeach the settlement made by that court of the accounts •of the executors, and of the balance required to be delivered to the trustees. We think the auditor and the court were right, therefore, in refusing to review that account, reject the allowance therein made, and charge the item to the trustees as part of the trust fund received by them.

This disposes also of the contention that this allowance for •expenses of administration should have been considered as an ■element of the amount of compensation allowed to the trustees in the final settlement, the basis of which was the net balance received by them from the executors as shown in the Mass; achusetts settlement. No credit was made them, or to Drury, for services prior to the commencement of administration under the appointment of the equity court of this District.

3. The only attack made upon the fairness of the administration of the trustees occurs under the exception to the auditor’s report, on the ground that he failed to ascertain and charge the trustees, as he should have done, with certain profits alleged to have been realized by them in the purchase of certain notes for reinvestment of the trust funds.

*545The facts upon which the contention is founded are these: That Drury was a member of the partnership of Arms and Drury, and that, for the purpose of reinvesting the funds of the trust, the trustees purchased many notes, aggregating large sums, from said partnership. The evidence shows that these purchases were made at par with any accrued interest, that the notes were good, and nothing had ever been lost on them. It appears that- Arms and Drury had been engaged, as part of their real estate business, in lending money of their own to parties engaged in building houses, taking notes therefor secured by building contracts and mortgages. Upon these loans they made a profit varying from 1 to 2 per cent. No money of the trust was used in such loans. The profits of Arms and Drury from the transaction were derived from the original borrowers. No profits were made in selling the notes, which were all well secured, to the trustees, and the latter took them, at their face value, obtaining no profits therefrom.

It is true that a trustee should not deal with himself, and in any transaction with the trust fund, in which he has made a loss by such dealings, he should be held to the strictest account. If, on the other hand, he realized profits, he should be made to account fully for them. No principle is better settled than that a trustee shall not make a personal profit from the use of trust funds. We would not be understood as qualifying this salutary rule in the slightest degree; but we cannot perceive that it applies here. Grant that it would have been better for Drury not to make purchases for reinvestment from a partnership of which he was a member, and thereby avoid opportunity for criticism, yet it is clear that the notes were bought at their face and actual value, that no profit was made by the trustees, and that not a dollar was lost to the estate. Drury knew the character of the notes, and there was less trouble and expense in the investigation of titles than there would have been in the purchase of similar securities from others; nor does it appear that like securities could have been readily obtained from others. Moreover, the other trustee Maddox, had no connection with the partnership of Arms and *546Drury. He was entirely disinterested, and there is no complaint against him other than that he concurred in the purchase of the securities.

Should the trustees jointly, or Drury singly, be charged in the settlement of their final account with any profit that Drury may have realized as a member of the partnership of Arms and Drury, from the original loans of the money of that firm, which formed the basis of the notes subsequently purchased in good faith by the trustees for the reinvestment of the trust funds ?

The trustees lost nothing on the notes and charged themselves with the exact amount paid for each. They paid no more than they would have done in the purchase of like notes from other persons engaged in the same business as Arms and Drury,, which persons would have realized a similar profit from their borrowers. We do not think that Drury, under any principle of equity, can be called on to surrender to his beneficiaries his profit made in previous transactions with other persons and at their expense, simply because he and his eotrustee subsequently purchased the paper in the securing of which those profits had been made, and in which purchases no profit was made, or expected to be made, at the expense of the estate. Dealings with the partnership of Arms and Drury by trustees, one of whom was a member of the partnership, call for the closest scrutiny of each and every such transaction, but when that scrutiny has disclosed no actual wrongdoing, no advantage taken of the situation, no profits made, and no possible injury to the-interests of the beneficiary, there is nothing calling for restoration by the supervising court. A pecuniary charge therefore, in the settlement of the account, would, under such circumstances, not be a restoration, but could be inflicted only by way of fine and punishment.

4. The last assignment of error relates to the decree of the-court which provides that when the trustees shall file vouchers showing the distribution and final disposition by them of the trust funds in their hands or shown by the auditor’s report, they shall be and are hereby discharged of and from their said *547office of trustees under their said appointment by the court in this cause. Upon the confirmation of the auditor’s report, this was the proper decree to be entered. The objection to it, however, is that it also discharges them as trustees of what is known as the Eliza C. Magruder trust. It appears that prior to his decease, the testator had executed an acknowledgment of a trust in certain property in his hands, consisting of stocks and of real estate in the District of Columbia and the State of Missouri, for the benefit of Eliza C. Magruder, the beneficial estate to go at her death to the children of Alexander F. Magruder, who are the plaintiffs in this proceeding. By the decree of April 16, 1899, Maddox and Drury were also appointed trustees of this trust. Separate accounts of the administration of that trust have always been kept and reported. The account was before the auditor in this reference, and he settled the same separately. No exception was taken to that part of his report. It is evident that the court, in entering the decree, did not irr tend then and there to terminate the administration of that trust; but the form of the decree may be objectionable as warranting the construction given it by the appellants. The case has not been finally closed in the equity court, and its power to correct the decree in that respect is fully recognized.

So far as the decree confirms the auditor’s report of the account of the trustees of the administration of the trusts created by the will, it is affirmed, with costs. So far as the Eliza C. Magruder trust is concerned, the cause will be remanded, with leave and direction to the court to amend the decree in so far as it may relate thereto, and take such final action, regarding that trust estate as may be expedient and proper.

*Affirmed.*

An appeal to the Supreme Court of the United States was. allowed December 21, 1911.