Evening star., 1926-06-10

for discharging the duties for which
he was In large part expressly ap-
pointed to perform"
Estate Put to Unusual Expense.
Another reason given by the audi
| tor. as quoted by Justice SiddOns, for
disallowing a commission was that the
estate had been put to unusual ex-
penSe due to the attendance OF coun-
sci engaged by the father Of the ward
at the hearing. TO this, Justice Sid.
dons replied;
IF this be a sound reason for deny
ing compensation to trustee when
submitting his account to the auditor.
| IT means. In effect. that he must he
penalized for accounting. because 9th
.rs who may be interested in seeing
To il that a proper accounting is made
! attend hearing before the auditor
| under circumstances that involve eX
pense to them. On principle. OF
course. no such rule can be recognized
''It is evident that the auditor had
in mind penalizing the trustee in this
case but he does not rest his decision
upon that ground at all.
The court will consider this second
! exception from the standpoint as to
| whether or not under the facts re-
lealed by the evidence all compensa.
| ton should be withheld from Mr.. Fen
! ming because of his action in receiving.
wit hout disc losing or accounting there
| for, the share of bond premium already
dealt with under the first exception to
| the report
No Fraud Nor Negligence.
1T is we'll settled that it is not every
| breach of trust by trustee that
| should bring upon him the forfeiture
or denial OF all compensation for per-
| forming otherwise properly the duty
| he owes to the trust estate.
Actual fraud or gross negligence
might require penalty which. in
addition to the consequences that
might follow criminally the perpetra-
| tion Of fraud or in addition to civil
| liability for gross negligence, would
| take the form OF loss Of all compen-
| sation. The evidence in this ca Sc does
| not. in the opinion Of the court re-
! veal any fraud on Mr.. Jennings part,
| nor does 1t reveal any gross negli-
gence Indeed as to the latter no
such contention Is made. There is
! no evidence in the case that there
| was dollar OF loss 10 the estate Of
| his ward, no evidence that he did not
keep the accounts in clear and
proper manner. and indeed nothing is
revealed in the evidence in the case
that could be said 10 reflect upon the
committees performance of his duties
as such. except that which Is in
volved in the question dealt with
under the first exception"
Auditor Is Cautioned.
Justice Siddons comment on the
presence of representatives OF the
Veterans Bureau before the auditors
hearing on the Adler report Is:
THE Court cannot doubt that the
Veterans Bureau has a vital interest
and concern in all that affects the
welfare OF those veterans to whom
in large measure 1t has to deal for
their advantage and benefit under the
liberal treatment of them by the
Congress Of the United States, In laws
duly enacted for the purpose.
Whatever may have Influenced
the auditor TO extend the invitation
that he did in this case to the repre-
sentative of the Veterans Bureau.
1t must not therefore be inferred or
concluded that the courts authority
to extend the invitation was sought
by the auditor. for II was not. nor
was the court even apprised that the
auditor contemplated taking such
action. Whether 1t was wise thing
to do or not. 1t is not necessaly for
the cour. to determine. If the Vet
erans' Bureau has such an interest
In such a case as makes it desirable
and proper tEat 1t be made a party
thereto, It Is the court and not the
auditor. that alone my 50 order.
"A reference to the auditor TO state
an account must never be regarded
by him as clothing him with authority
to invite to attend and participate in
the hearing on such a reference of
any one other than the parties in in
terest, their counsel or their guar
dians, committees. trustees or creditors
having claims involved in the ac-
counting. The Veterans Bureau does
not appear TO be, under any provi-
sion of law. statutory or otherwise. a
party in interest in such a case.
I'm conclusion. 1t should he re-
marked that what has been stated in
the foregoing is intended as a caution
to the auditor for his future guidance,
and that before undertaking to do
anything Of the same kind, he must
first procure the courts authorization
In the present case his authority was
limited by the terms of the order of
reference to him Of Mr.. Jennings
final report and for the purposes
stated In the order which has been
already quoted, and nothing more"