O'Riorden

Apr 12, 1923

Reporters:
Before:: Braley

Braley, J.

The commissioners were appointed May 7, 1920, and June 23, 1921, under St. 1917, c. 279, § 12, now G. L. c. 241, § 12, to make partition of sixty-six parcels of real estate “ aggregating in value $600,000,” which “ran the gamut from cheap lots and shabby buildings to high class expensive apartment houses.” ‘The commissioners having made partition filed their report, to which the appellants while not objecting to the valuations of the parcels, or of the division, or to the expenses incurred in making partition, contend, that the sum of $30,000 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍awarded for services which under the statute they must pay, is excessive. St. 1917, c. 297, §§ 17,23. See Potter v. Hazard, 11 Allen, 187. The evidence was taken by a commissioner, and at the request of the appellants the judge made certain findings of fact, which are open for revision on the appeal. Martell v. Dorey, 235 Mass. 35, 40, Danforth v. Chandler, 237 Mass. 518, and cases cited. The commissioners .after several informal meetings to consider the nature of the ■property, and to discuss the mode of procedure, held their first formal meeting June 9, 1920, and from that date to August 19, 1921, inclusive, on approximately two hundred and forty-eight ■days, they were engaged either singly, or collectively in conferences between themselves, or with the heirs and their counsel, .and in the preparation of their report as well as supervising the numerous details of the partition, which included a careful examination of the property with estimates of value and the preparation of plans. While in some instances perplexing and difficult questions had to be carefully considered, they were satisfactorily adjusted without the employment of experts or counsel. The record also states that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍after August 19 two of the commissioners, “the third having died, rendered services which are not included in -their bill for services as shown in the commissioners’ report. But even if one of the commissioners whose evidence was not contradicted, testified that he “actually spent about six to seven *476weeks on the report, worked early and late,” which necessarily was voluminous, and “We have worked until nine and half past, nine, after working about all day. Sometimes we would start at ten in the morning and work until twelve or half past twelve, and come back in the afternoon, and work again at night, ’’the number of hours actually spent at all the meetings and conferences does not appear, nor can it be inferred that either of them wholly relinquished his occupation or practice of his profession, and devoted himself exclusively to the performance of his duties as commissioner. The commissioners nevertheless are entitled to reasonable charges for their services, to be determined by the court. St. 1917, c. 279, § 23. G. L. c. 241, § 22. ’ It was said in Barrell v. Joy, 16 Mass. 221, 229, where ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the compensation of a trustee was considered, “We know of no better rule to guide our discretion . . . than the usage which exists among merchants, factors, and others, who undertake to manage the interests and concerns of others; and . . . the highest rate, at which those . services are paid for, ought to be allowed . . .,” and five per cent on the gross amount of all property which had come into his hands was allowed for his care and distribution of it. See Gibson v. Crehore, 5 Pick. 146, 161; Tucker v. Buffam, 16 Pick. 46, 51. Where a trust is created which contemplates the performance of services not ordinarily required of a trustee, his compensation may in the court’s discretion be increased accordingly. Turnbull v. Pomeroy, 140 Mass. 117, 118. See Blake v. Pegram, 101 Mass. 592, 600; May v. May, 109 Mass. 252, 258; Loring v. Wise, 226 Mass. 231, 235. A trustee, executor, administrator, guardian or conservator “shall be allowed his reasonable expenses incurred in the execution of his trust,” and he is to receive such compensation as the court may allow. R. L. c. 150, § 14. G. L. c. 206, § 16. But even if it properly may be estimated on the basis of a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍commission, the compensation must be reasonable “under all the circumstances of the case.” Urann v. Coates, 117 Mass. 41, 44. The commissioners however do not come within the classification of the statute; nor of referees as in Russell v. Page, 147 Mass. 282, where it was held that upon acceptance of the award they could recover in an action at law their reasonable fees from the parties to the submission; nor do they seek compensation where no report has .been accepted and partition made, and their *477charges -and expenses have not been determined by the court of probate, as in Potter v. Hazard, 11 Allen, 187. While proposed by the parties, they were selected and appqinted by the court, and acted under its authority and decrees. The duties with which they were charged are very closely analogous to those of a receiver to marshal assets and make distribution among creditors; and their report has been accepted, partition made, and their compensation determined. It was said in Grant v. Bryant, 101 Mass. 567, 570, “The court does not regulate the compensation of its officers upon the basis of a fixed compensation upon the amount of money passing through their hands, but allows ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍them such an amount as would be reasonable for the services required of and rendered by a person of ordinary ability, and competent for such duties and services.” The case at bar seems to us to come within the application of this practical rule, and after full consideration of all the circumstances, and giving due weight to the decision of the judge, we are of opinion that the allowance should be reduced to $18,000. Frost v. Belmont, 6 Allen, 152, 165. It follows that the decree should be modified accordingly, and as thus modified it is

Affirmed.