hope of profitable returns, invest money in trade and adventures of various kinds. In their private affairs they do, and they lawfully may put their principal funds at hazard; in the affairs of a trust they may not. The very nature of their relation to it forbids it.

If it be said that this reasoning assumes that it is certainly practicable so to keep the fund that it shall be productive, and yet safe against any contingency of loss; whereas in fact if loaned upon bond and mortgage, or upon securities of any description, losses from insolvency and depreciation may and often do happen, notwithstanding due and proper care and caution is observed in their selection. Not at all. It assumes and insists that the trustees shall not place the fund where its safety and due return to their hands will depend upon the success of the business in which it is adventured, or the skill and honesty of other parties intrusted with its conduct; and it is in the selection of the securities for its safety and actual return that there is scope for discretion and prudence, which if exercised in good faith, constitute due performance of the duty of the trustees.

My conclusion is therefore that the defendants were not at liberty to invest the fund bequeathed to the plaintiff in stock of the Delaware and Hudson Canal Company; of the New York and Harlem Railroad Company; of the New York and New Haven Railroad Company; of the Bank of Commerce; or of the Saratoga and Washington Railroad Company; and that the plaintiff was not bound to accept these stocks as and for his legacy, or the investment thereof.

In regard to the bonds of the Hudson River Railroad Company and of the Delaware and Hudson Canal Company, it appears by schedule B, given in evidence, that the former were mortgage bonds; but what was the extent or sufficiency of the security afforded by such mortgage, or what property was embraced in it does not appear, nor does it appear whether there was any security whatever for the payment of the canal company's bond.

It is not necessary for the decision of this case; and I am not prepared to say that an investment in the bonds of a railroad or other corporation, the payment whereof is secured by a mortgage upon real estate, is not suitable and proper under any circumstances.

If the real estate is ample to insure the payment of the bonds, I do not at present perceive that it is necessarily to be regarded as inferior to the bond of an individual secured by mortgage; it would of course be open to all the inquiries which prudence would suggest if the bond and mortgage were that of an individual. The nature, the location and the sufficiency of the security and the terms of the mortgage, and its availability for the protection and ultimate realization of the fund, must of course enter into the consideration.

But it is not necessary to pursue that subject. The plaintiff in his complaint rejects the entire investment. The court below held that it was equitable that the plaintiff should be held to receive the whole or none of the stocks and bonds, and to that ruling neither the plaintiff

nor the defendant have excepted; and therefore the question whether the judgment below was correct in that respect is not before us.

It is proper however to say that I do not clearly apprehend the propriety of that ruling, unless it be on the ground that the plaintiff in his complaint did so elect.

The rule is perfectly well settled that a cestui que trust is at liberty to elect to approve an unauthorized investment and enjoy its profits, or to reject it at his option; and I perceive no reason for saying that where the trustee has divided the fund into parts and made separate investments, the cestui que trust is not at liberty, on equitable as well as legal grounds, to approve and adopt such as he thinks it for his interest to approve. The money invested is his money; and in respect to each and every dollar, it seems to me he has an unqualified right to follow it, and claim the fruits of its investment, and that the trustee cannot deny it. The fact that the trustee has made other investments of other parts of the fund, which the cestui que trust is not bound to approve, and disaffirms, cannot, I think, affect the power. For example, suppose in the present case the cestui que trust, on delivery to him of all the securities and bonds in which his legacy had appeared invested, had declared: Although these investments are improperly made, not in accordance with the intent of the testator, nor in the due performance of your duty, I waive all objection on that account, except as to the stock of the Saratoga and Washington Railroad Company. That I reject and return to you. Is it doubtful that his position must be sustained?

The result is, that the main features of the judgment herein must be affirmed.

Nequant

Intermid

III. Compensation and Expenses of Trustee⚫

PERKINS' APPEAL.

(Supreme Court of Pennsylvania, 1885. 108 Pa. 314, 56 Am. Rep. 208.) Appeal from the court of common pleas, Philadelphia county. Appellant filed his account as trustee, in which he claimed compensation "for professional services before his appointment as trustee, including drawing petition, etc., for his appointment," and also compensation for professional services rendered after his appointment in examining the account of his predecessor. These items were disallowed by the court below, and the trustee appealed."

4 For discussion of principles, see Eaton on Equity (2d Ed.) § 211.
The statement of facts is abridged.

STERRETT, J. In his final account as trustee, under the deed of marriage settlement executed in 1838, appellant claimed credit, inter alia, "for professional services, prior to his appointment, $100; for compensation as trustee, $1,500." Exception was taken to each of these credits. To the first it was objected that the professional services in question were rendered not for the benefit of the trust estate, but in the special interest of the beneficiary for life; and, to the second, that the charge was excessive. Both of these exceptions were fully considered by the learned auditor, and by him overruled.

As to the first, the substance of his finding was that the professional services, rendered by appellant before his appointment as trustee, were for the benefit of the trust estate, and in the interest of exceptants and others entitled to the corpus thereof. This satisfactorily disposed of the only allegation of fact on which that exception is based.

As to the second exception, the learned auditor found from the testimony before him that, in view of the services, of a strictly professional character, rendered by appellant, in connection with his duties and responsibilities as trustee, the compensation claimed by him was just and reasonable; and this conclusion of fact appears to have been warranted by the evidence. For the purpose of showing the character and extent of the special services rendered by appellant, the account of his predecessor in the trust, and report of the auditor to whom it was referred, were given in evidence. From these it appeared that the account, exhibiting the administration of the trust for the period of 40 years, was necessarily very voluminous; and, of course, a proper examination of the same required considerable time as well as professional skill and judgment. It was the duty of appellant as successor of the deceased trustee, to cause a thorough examination of the account to be made. Instead of employing counsel for that purpose, as might have been done, he gave his personal attention to the matter. The learned auditor to whom that account was referred says in his report thereon: "The accounts of both principal and interest were very thoroughly examined with the vouchers, receipts, and other evidences of the transactions, both by the auditor and the succeeding trustee (Mr. Perkins), involving on the part of the latter a degree and character of skill and attention such as would ordinarily have been performed by a professional adviser, as being over and beyond the duties strictly pertaining to the office of a trustee."

The question of reasonable compensation to trustees depends largely upon the circumstances of each particular case, and cannot be properly determined by any inflexible rule. Carrier's Appeal, 79 Pa. 230. While in practice it is usually claimed and awarded in the form of a commission, the rate is not determinable by any estab

lished rule. It must be graduated according to the responsibility incurred, the amount of the estate, the nature and extent of the services necessarily performed. Harland's Appeal, 5 Rawle, 323, 330. In that case Chief Justice Gibson says compensation "may be awarded even in a gross sum, according to a common practice in the country, which I take to be the preferable one, as it necessarily leads to an examination of the nature, items, and actual extent of the services, which the adoption of a rate per centum has a tendency to leave out of view." It cannot be doubted that for services of an extraordinary character, rendered by a trustee, he is entitled to extra compensation beyond the usual allowance for receiving and disbursing trust funds. If professional services, necessary to the proper administration of the trust, have been rendered by a trustee in person, he is clearly entitled to such reasonable compensation as he would have paid had he been obliged to employ counsel. If authority for a principle so manifestly just and reasonable as this be required it may be found in Lowrie's Appeal, 1 Grant Cas. 373.

In reaching the conclusion that appellant's claim, as presented, was not excessive, the learned auditor appears to have considered and properly applied the principles above stated to the facts of the case as he found them. He took into consideration the professional as well as the ordinary services of the trustee, and in connection therewith he very properly took into consideration the necessity of yet converting into money, for the purpose of distribution, the securities which represent the corpus of the estate. These securities, consisting of shares in eight or ten different corporations, valued at about $25,000, came into his hands from his predecessor in the trust. It will doubtless be necessary for the trustee to sell these stocks and distribute the proceeds among the twenty or more parties in interest.

In view of all the facts and circumstances of the case, we think the conclusions of the auditor were correct, and the learned court erred in reducing appellant's compensation for all services to 5 per cent. on the amount of the estate. The difference, it is true, is comparatively small, but the record fails to disclose any reason for not confirming the auditor's report, and none has been even suggested by the court below.

Decree reversed at costs of appellees, and report of the auditor confirmed, and it is ordered that the record be remitted to the court below for further proceedings in accordance therewith.

SLATER v. ORIENTAL MILLS et al.

(Supreme Court of Rhode Island, 1893. 18 R. I. 352, 27 Atl. 443.)

Bill in equity by William A. Slater and another against the Oriental Mills and others to establish a charge in favor of the Forestdale Manufacturing Company, of which complainants are stockholders, on the assigned estate of the Oriental Mills. Defendant filed a demurrer to the bill. Demurrer sustained.

STINESS, J. The question raised by the demurrer to the bill is whether the Forestdale Manufacturing Company, of which the complainants are stockholders, has a preferred claim upon the respondent assignee of the Oriental Mills, an insolvent corporation, for funds wrongfully taken from the former company and used to pay liabilities of the latter company, and otherwise, by persons who were officers in control of both companies.

The rule is clear that one has an equitable right to follow and reclaim his property, which has been wrongfully appropriated by another, so long as he can find the property, or its substantial equivalent if its form has been changed, upon the ground that such property, in whatever form, is impressed with a trust in favor of the owner. If the trustee has mingled it with his own, he will be deemed to have used his own, rather than another's, and so to leave the remainder under the trust; and this is a sufficient identification for the owner. But in this case we are asked to go further, and to hold that, where one's property has been wrongfully applied and dissipated by another, a charge remains upon the estate of the latter for the amount thus wrongfully taken, upon the ground that his estate is thereby so much larger, and that the trust property is really and clearly there, in a substituted form, although it cannot be directly traced. This view is pressed with much skill and some authority, but we are unable to adopt it.

While one who has been wronged may follow and take his own property, or its visible product, it is quite a different thing to say that he may take the property of somebody else. The general property of an insolvent debtor belongs to his creditors, as much as particular trust property belongs to a cestui que trust. Creditors have no right to share in that which is shown not to belong to the debtor, and, conversely, a claimant has no right to take from creditors that which he cannot show to be equitably his own. But right here comes the argument that it is equitably his own because the debtor has taken the claimant's mon

• Fr discussion of principles, see Eaton on Equity (2d Ed.) § 214.