LEWIS, V. C.

Suit by John Edward Marsh against Rolph Marsh and others. On application to fix a trustee's final commissions. Commissions fixed as stated.

Cornelius Doremus, of Ridgewood, for complainant John Edward Marsh.

William D. Edwards, of Jersey City, for Charles Capron Marsh.

Alfred F. Skinner, of Newark, for Cordelia Bibb.

Albert C. Wall, of Jersey City, for Rolph and William Y. Marsh.

Frank G. Turner, of Jersey City, for Frieda Marsh Young.

Harlan Besson, of Hoboken, as special guardian for Lawrence Copley Shaw.

LEWIS, V. C. The application in this matter is for the court to fix final commissions for the trustee in the estate of John Edward Marsh. The trustee has devoted his entire time to this large estate, which started with a corpus of $900,000, and has been brought to the point where the total passing through his hands has amounted to approximately $5,000,000. It is true that the heirs, some of them, have urged the earlier closing up of the affairs, and distribution of the proceeds; but the trustee has, under the powers given him by the will, used his judgment, and held the bulk of the estate until it has become very valuable. There is no charge of dishonesty or betrayal of trust. The trustee and those associated with him, both of whom have died, have received from time to time commissions, and under the statutory allowances, taking a maximum, the figures as now due are the sum of $42,052.75. This would be upon a basis or percentage as follows: Upon corpus, 2 1/2 per cent; upon income, 5 per cent.; upon income upon special trust fund, 5 per cent.

It is urged by the solicitors of the defendants that the trustee is not entitled to this, because of the large commissions previously allowed; and the court is constrained to agree with them. Reference Was made during the argument upon commissions to a discussionover a compromise allowance of $18,000. This was merely tentative, and never consummated. The trustee is not bound nor affected by this, as he was not present at the conference, and declined to accept the suggestion. In fixing the allowance by way of compensation the court does not consider that conference, and is in no way affected by it; but the allowance is based entirely upon what is deemed to be proper compensation, as gathered from the amount of work done, as shown by the trustee's accounts, the amount of income and principal handled, and the results obtained.

While the maximum rates of commission are fixed by the statute, in this case the maximum rate being 5 per cent. nevertheless the actual rate allowed is within the discretion of the court; and the rate allowed depends upon the actual pains, trouble, and risk incurred by the executor; each case is to be determined upon its own facts and circumstances. Metcalfe v. Colles, 43 N. J. Eq. 148, 10 Atl. 804; Fluck v. Lake, 54 N. J. Eq. 638, 35 Atl. 643.

In Lyon v. Bird, 79 N. J. Eq. 157, 80 Atl. 450, the inventory showed corpus $72,000; the increase was $9,000. Held, that 5 per cent. was excessive; that 1 per cent. on inventory, and 2 1/2 per cent. on increase, was sufficient.

In re Hibbler Estate, 78 N. J. Eq. 217, 78 Atl. 188, the executor and trustee was allowed 3 per cent. on $106,000 as executor. After managing the estate for 12 years he resigned, and asked for 2 per cent. on the corpus for compensation as trustee. This was denied. The 3 per cent. allowed to him as executor was held excessive, and the court held that it should be deemed to cover commissions as trustee also.

Taking all the facts into consideration in this case, I think the following computation would be equitable: 1 1/4. per cent. on the total principal; 2 per cent. on the total income; and 2 per cent. on the total income, special fund; making an allowance of $18,332.35.