Evening star., 1926-05-22

premiums received by the committee
/ were taken as an agent of the United
! States Fidelity md Guaranty Co. but.
! rather. that he has taken cogniza nee
| of this relation which is derogatorN
Of the trust imposed uon the com
| nittee to look after the interests of
his ward. How analogous are the
duties imposed upon trustee 10
| those Of an agent or other hduciaIN'
and nothing Is better settled tnan
that a man cannot be agent ot ooth
the seller and the hu"er In the same
ira nsa ction without the intelligent
consent Of both. So careful is the
law in guarding the fduciary relation
that 1t will not allow an agent 10
act.'for himself and his principal. nor
TO act for two principals on Opposite
sides in the same TRANSACTION. 10
he secretly in the service of the op-
posite party while an agent is acting
ostensibly for the principal only. salu
the court in Ferguson VS.. 'ioocn, -
Va. /. lis fraud upon the iato~'
and a breach Of public morals tha'
The law will not permit.
Says Court Should Have Know"
The committee in the case at bar. as
a n officer of the court. acts IN accoiu'
ance with the instructions OF the
court and is charged with the dutH
of rotectins the interests OF his IN
conpetenl ward who IS also 2 ware
or the court 1t is his duty TO make
known to the count every httei'A i.
fact concerning the subject matter ~
his trust. and in submitting ms ac
count TO the court II was as much his
duty to apprlse the court Of the tact
that he had received a fina ncial hene-
fl as the result Of the purchase Of the
hond as II was for him to set forth
that he had paid A premium on
hord. or rendered legal or other serv-
ices. in order that the court could
determine the extent and value OF the
services rendered in fixing the COM
pensation due the committee.
The attention of the court is dl.
rected to the well-reasoned opinion oil
the court in the case of Magruder VS..
Drurv. 23a United States 1T makes
no difference that the estate was not
loser in the transaction or that the
commission was no more than the
services were rea soma bly, worth. 1t is
the relation Of the trustee to the
estate which prevents his dealing in
such way as TO make a personal profit
for himself.
Denies Auditor Restricted.
1T is further charged that the audi
tor so misconceived the evidence in
the case as TO find that there was SUCH
wrong doing on the part OF the com
,nittee as to Justify penalizing him 10
the extent of disallowing not only All
commissions on the bond premium,
hut the entire premium. The attention
Of the court is invited to the recon-
mendation of the auditor SET forth
under item - Of his report. to the
effect that the court Is not interdicted
from requiring Mr. Fenning to pay
the current premium on his surety
bond from his own individual funds
No reference can he found OF aanv
recommends tion made by the auditor
that the committee he also disalloWed
| the commission received from the sure
| IT, conpanN on the premium paid on
the hond.
| III. To so much of the exception
which involves the province of the
auditor in recommending to the court
the allowance or disallowance of any
item OF expense incident to the &C.
f, count of the committee and the sub,
! seouent ORDER of the court uDor the
: recommendation of the auditor Ia
natter slpgularly confined 10 the
| courts discretionl. 1t is respectfully
urged that there is no limitation what
| ever upon the recomme ndation Of the
| auditor. and that the discretion Of the
court Circumvents the allowance or
| disallowance Of any or all of the items
! of expense and disbursement claimed
/ in the account Of the committee.
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