CASES ARGUED AND DETERMINED IN THE HIGH COURT OF ERRORS AND APPEALS FOR THE STATE OF MISSISSIPPI. OCTOBER TERM, 1854. JAMES SHIRLEY et al. vs. DAVID O. SHATTUCK et al. A trustee cannot acquire an interest in the trust property, adverse to the interest of the cestui que trust, during the continuance of the trust; yet when the trust is at an end, and a new trust created, to which he is a party, it is competent for him to make new terms and stipulations, for his own security in undertaking the trust. Held, that the rights and relations of the parties in this case were fixed, and are to be governed by the new arrangement, by which S. was to have the entire control and management of the property conveyed, until the debt due W. was paid, as well as the expenses and services of S. in relation to the trust, discharging him from his liabilities incurred in the execution of the trust. The original trust was thus suspended until these things were done, and then only partially to be restored. S. held the legal title to the property embraced in the arrangement with W., with all the rights and powers declared in the instrument executed by him, and S. is accountable for the execution of his trust only according to those terms. The rule has been sanctioned both in England and in this State, to allow persons acting in a fiduciary capacity, all reasonable counsel fees, paid in prosecuting or defending suits for the estate, in the bonâ fide assertion or protection of its interests; and this rule is equally applicable to trustees. Held, that the sound and just rule is, that although compensation may be allowed 2 VOL. VI. Shirley et al. v. Shattuck et al. to a trustee who performs such service for the estate in his hands as an attorney or solicitor, yet it should never be allowed unless it be clearly shown beyond a doubt, that the legal proceedings were undertaken and conducted in good faith, and with an eye single to the best interests of the estate, and were necessary to protect its rights. It would be a very strong justification of such services, that they were rendered at the instance of the cestui que trust. The reasonableness of the allowance to S. for his services is shown, and he certainly was entitled to an allowance for the amount his services were worth in transacting the business. Held, that there is no such gross negligence shown on the part of S. as trustee, as would charge him with wages paid to C., as overseer of the property conveyed in the deed in trust. S. had a right to place the slaves, for the forthcoming of which he was bound, in the custody of the law, if he thought there was danger of their not being forthcoming to discharge his liability for them. The power was expressly conferred by the trust upon S., the trustee, to dispose of the property for the payment of the expenses and debts he had incurred on account of the property held in trust. Held, that the sale of the slaves by S. to pay his claim, was valid, and they cannot be reached by the complainants, in the hands of parties who purchased them from S. for a valuable consideration. The decree subjecting the slaves in S.'s hands to the payment of a judgment rendered against him, in one of the suits brought by him to recover possession of the slaves levied upon by the sheriff of the county of T., was properly rendered. ON appeal from the northern district chancery court at Carrollton; Hon. Henry Dickinson, vice-chancellor. The opinion of the court contains a sufficient statement of the facts of the case. Enloe, for appellants. 1. The court below erred in not sustaining the demurrer to the cross-bill. See 2 Amer. Chancery R. 346; 1 Smith's Chancery Practice, 459, note B. 2. The court erred in ordering an account to be taken of the matters prayed for in the cross-bill, because there was no proof to sustain the same, and because no fact charged in the crossbill, if true, could entitle the complainant to the relief sought. It was ordering an account unauthorized by the pleadings or proof. 10 Peters, R. 177; 6 Johns. R. 543. 3. Shattuck, one of the trustees, could not transfer or en Shirley et al. v. Shattuck et al. cumber the trust estate, with any liability to pay damages to Alford, without the concurrence of Caruthers, the other trustee. Trustees have all equal power, interest, and authority, and cannot act separately as executors may. Fonbl. 436. He could not transfer the trust property, because the title of the property was vested in both trustees, and one alone could not divest it. He could not transfer the trust property, because the deed of trust creating his interest, gave the beneficiaries the right of possession of the same, of which the subpurchasers had notice. Shattuck admits, in his answer, his fraudulent and tortious possession. He admits that he obtained possession of the same, by making oath that he was entitled to the possession of this property; upon which he obtained a writ of habeas corpus, under which he took possession of the property, and that the writ has never been returned. Mr. Barr's deposition shows, that only three days previous to the issuance of this writ, Shattuck told witness that he had no further control or management of this property. The facts presented show that, in law, he never had any right to the possession of the same. His avarice seems to have triumphed over all his sense of moral obligation, and to have impelled him, at the hazard of his eternal soul, to take possession of this property, by making a corporal oath that he was entitled to the possession of the same. But the property belonged chiefly to minors, and the law is well settled that where the cestuis que trust are infants, there is no means by which the trustee can become possessed of an interest in the trust property. A subvendee of the vendee of an infant of personal property, even though a purchaser for a valuable consideration without notice, cannot hold the property as against the infant. See 5 Smedes & M. 216. 4. The interest of the complainants could not have been divested by any contract they could have made, even by the consent of the husband or father. The consent of an infant or married woman to a contract which is a breach of trust, will not prejudice them. See Hill on Trustees, 57. 5. If the trust estate by the levy, verdict, and judgment on Shirley et al. v. Shattuck et al. the trial of the right of property was vested in Wilson, freed from the limitations and restrictions of the deed of trust, still the purchase of it by Shattuck, one of the trustees, and the payment for the same with the effects of the trust estate, revested it in the trustees, subject to all the limitations fixed on it by the original deed of trust. 11 Smedes & M. 78; 2 Iredell, Eq. R. 304. 6. After the trial of the right of property, Shattuck placed an inexperienced overseer in possession of the trust estate against the consent of the complainants, who had the right of possession of the property secured to them by the deed of trust. The testimony shows that this overseer, Cobb, while in possession of the same under Shattuck, damaged the property to the amount of two thousand dollars. Shattuck is liable for all the damage done by him, or resulting from the insufficiency of the overseer. Fonbl. 434. It was a condition precedent to his title to commissions, that his services should have been faithfully performed. If he was guilty of gross neglect or misconduct, he not only thereby became liable to the principal, for any damages which they thereby sustained, but he thereby forfeited all commissions. Story on Agency, § 331. A trustee cannot be allowed compensation for counsel fees. See 1 Johns. Ch. R. 37. A trustee cannot be allowed compensation, but is allowed for daily wages. 1 Johns. Ch. R. 27. Shepherd, for appellees. This case comes before the court on an appeal from decree of vice-chancellor on exceptions to report of commissioner. Exceptions to the report are in the nature of a special demurrer; the party excepting must put his finger on the error; the part not so excepted to is admitted to be correct both as to principles and evidence on which it is founded. Wilkes and wife v. Rogers et al. 6 Johns. Rep. 591; Story v. Livingston, 13 Peters, 366. This court will only review the very point raised and decided by the court below. Doe v. Natchez Insurance Co. 8 S. & M. 205. The first, second, and third exceptions are taken on the same ground, because no allowance could be Shirley et al. v. Shattuck et al. made to the trustee for professional services. According to the rule, as above stated, it is only necessary to examine this cause of objection, there being no objection that the proof was insufficient. This objection is taken upon the rule long recognized in England, that the service of a trustee was honorary, and no allowance would be made. However firmly this rule may have been recognized in England, it is believed that it has no place in American law. There is but a single case recognizing it in the court of chancery of New York. This rule, in England, extended to sergeants, and barristers, and physicians, on the basis that their services were honorary. It stands opposed to the utilitarian spirit which characterizes the present organization of society. The rule now acted upon by all is, that the "laborer is worthy of his hire." There is no objection in principle or practice to allow a trustee commissions in connection with allowance for specific services. Rathburn v. Cotton, 15 Pick. 484. The highest rate allowed to others who perform like services should be allowed trustees. Barrell v. Joy, 10 Mass. 229. A trustee is entitled to commissions for risk and expense in the usual course of business; when taken out of that course a reasonable allowance for services should be made. Miller v. Beverly, 4 Hen. & Mun. 420. The fourth exception was not well taken, because from the testimony of Shirley before the commissioner, it appears that it was necessary to raise money to pay the second instalment to Wilson; and Shattuck made the second trip to New Orleans to procure money for that purpose, which he obtained, and paid the debt at maturity. The fifth and sixth exceptions were taken to the payment to A. Cobb, "because his services were of no value." On this point the testimony is conflicting. Zealot, the overseer of complainants, and S. D. Bell, both swift witnesses, condemn Cobb; another witness of plaintiff says he was pushing and industrious, but unskilful; on the contrary, J. Cobb, Col. Leflore,. and J. Kings, say that he was a fair overseer. But apart from this, it became necessary to employ Cobb in order to obtain security on the bond to Wilson. The arrangement with |