D. C.]

Syllabus.

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 off 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

in 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. Gorden, 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 should 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

appeal 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. Richardson, deceased, and ordering their final discharge.

Judge William A. Richardson 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 Richardson 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

Statement of the Case.

[37 App. 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

'D. C.]

Statement of the Case.

ander F. Magruder. She died in the District April 4th, 1898, leaving as her heirs at law and next of kin Alexander R. Magruder and Isabel R. Magruder. On December 30, 1898, the said Alexander R. Magruder and Isabel R. Magruder, by their father and next friend, Alexander F. Magruder, filed a bill in the supreme court of the District naming George F. Richardson 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 R. Magruder, the bill charged that said William A. Richardson 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.

At his

In September, 1876, he bought a burial lot in the District of Columbia, and had his deceased wife buried therein. 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 Washington his home, William A. Richardson soon began to close out his investments in the State of Massachusetts, and invested all