Russell's Ex'rs v. Passmore

127 Va. 475 | Va. | 1920

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The following questions presented for pur decision by the assignments of error and cross-error will be disposed of in their order as stated below.

1. Are the facts set out in the bill, and is the evidence in the cause, sufficiently unequivocal, explicit, clear and convincing to establish the parol trust alleged in the bill, which was for the exclusive benefit of George E. Passmore, Jr.; and if so was the interest vested in the latter under that trust as originally created irrevocable by the donor after the creation of the trust?

[1] The standard of proof required by the authorities to establish a parol trust of personality, as said in 3 Pomeroy’s Eq. Jur. (3d ed.), sec. 1008, “demands clear and unequivocal evidence”—citing a great number of cases. The standard is certainly no higher than that applicable to parol trusts of real estate. As to the latter, the rule is that the declaration of the trust must be unequivocal and explicit and established by clear and convincing testimony. Fleenor v. Hensley, 121 Va. 367, 93 S. E, 582; Taylor v. Delaney, 118 Va. 203, 86 S. E. 831.

[2] We have no hesitancy in holding that on demurrer thereto the facts set out in the bill are sufficient to establish that the trust as alleged in the bill was created and accepted by the trustee, Russell, as therein alleged. And the same is true of the evidence in the cause, as appears from the statement preceding this opinion.

[3] Answering the second branch of the question under consideration, we must also hold that the interest vested in George E. Passmore, Jr., under the trust as originally ■created, which is alleged in the bill, was irrevocable; but that such trust as disclosed by the evidence was not irrevocable; that the latter was on the contrary, revocable by the donor at any time after the creation of such trust up until his death.

[4] The latter conclusion necessarily results from the character of the trust now under consideration, as it appears from the evidence. The gift of the beneficial ownership of the bank stock to the eldest child, George E. Pass-more, was not a complete unconditional gift inter vivos, as would have been the case if the facts had been as alleged in the bill. The proof discloses that this was a gift conditioned by necessary implication upon its remaining unrevoked at the death of the donor,' so that, under well settled principles, by the terms of the declaration of trust, the beneficiary, George E. Passmore, Jr., took indeed a vested equitable interest thereunder, but subject to be divested by revocation by the donor at any time thereafter previous to his death.

[5] It is true, as said in 1 Perry on Trusts (6th ed.), sec. 104. “A completed trust without reservation of power of revocation can only be revoked by consent of all the cestuis. If a voluntary trust for the benefit, wholly or partly, of some person or persons other than the grantor, is once perfectly created, and the relation of trustee and. cestui que tmst is once established, it will be enforced,, though the settlor * * has attempted to revoke it by making a second voluntary settlement of the same property, or otherwise, or if the estate, by some accident, afterwards becomes revested in the settlor. In all these cases the first perfectly created trust will be upheld, with all its consequences * *. A trust once created and accepted without reservation of power can only be revoked by the full consent of all parties in interest; if any of the parties are not in being, or are not sui juris, it cannot be revoked at all.” But. in the case before us there was not created a completed trust without reservation of power of revocation, nor was. such a trust accepted by the trustee. By the very terms of the declaration of trust, the beneficial interest which was vested in the object of the trust was necessarily subject to be divested upon the happening of the event of subsequent revocation by the donor prior to his death, and hence was conditioned upon the trust in favor of such object remaining unrevoked until that time.

[6-8] Such a gift, although by parol, is recognized by the authorities as good, as a gift causa, mortis (1 Perry on Trusts, section 87 and authorities cited), or as good as a gift by way of an express trust, and in the absence of fraud, mistake or misunderstanding, is enforceable after the death of the donor if left unrevoked at his death (1 Perry on Trusts, note (a), on p. 114; Idem, sec. 104, at p. 137). As said in the learned work last cited, at p. 137: “Although the power of revocation is reserved, the trust is as good and effectual as if irrevocable, until the power is exercised.’.’ See to tiie same effect 39 Cyc., p. 94. The last cited authority (Cyc.), at p. 92, does state that “a trust completely created and containing no express power of revocation, is not revocable by the creator without the consent of the ben:eficiary.” (Italics supplied.) But on principle, and in accordance with the authorities, it is not material that the power of revocation be express. If it exists by necessary implication under the terms of the gift, it may be exercised just the same as if expressly reserved. This -indeed is expressly held in Sterling v. Wilkinson, 83 Va. 791, 3 S. E. 533. That case, however, does go too far in the expressions in the opinion (not necessary for the decision of that ’ case) to the effect that a gift of a subject deposited in the hands of a third person conditioned to take effect i,n absolute right in case of the death of the donor is testamentary in its character and cannot be enforced unless evidenced as required by the statute of wills. So broad a holding, as applicable to a gift where the subject of it is as of the time of the gift (the creation of the trust), deposited into the custody or possession of a third person as trustee, the trust having been perfectly created by action which includes the acceptance of the trust by the trustee in the lifetime of the donor, is not in accord with the authorities on the subject, as we have above seen, nor is it correct on principle, and to that extent the case just cited is hereby disapproved. Im the case of Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415, 27 L. Ed. 500, which is made the basis of that part of the opinion of the court in Sterling v. Wilkinson, supra, which is above disapproved, the deposit of the subject of the gift was not made at the time of the gift, so as to create a complete equitable assignment or transfer of the subject. What is said by the Supreme Court in its opinion must be read with this fact in view. That opinion itself refers with approval to the holding in Bromley v. Bruton, L. R. 6 Eq. 275, to the effect that “if a banker accepts the check, or otherwise subjects himself to liability as a trustee, prior to the death of the donor, the gift is complete and valid;” and in substance holds that any action of a donor which makes a complete equitable assignment in his lifetime creates a valid gift of the subject of the assignment as between the donor and donee.

[9] A valid equitable assignment, may, of course, be conditional. And if the condition be a subsequent condition, although it has power to divest the equitable title to the gift, yet if that condition does not arise, the title, by relation, is regarded as complete and absolute from the time of the gift. And when such condition involves a possible revocation of the gift by the donor in his lifetime, on his death without having exercised such power, upon the same principle as that which is involved in gifts causa mortis (Basket v. Hassell, supra), the equitable title does not await until after the death of the donor to pass to the beneficiary, so as to become a testamentary disposition, but is regarded as having passed in the lifetime of the donor at the time of the gift—where the gift is in proper form to be effectual, as, of course, is unquestionably true where possession of the subject ’of the gift is given by the donor to a trustee who accepts the trust, all in the lifetime of the donor.

In Sterling v. Wilkinson, indeed, the donor revoked the gift in his lifetime in favor of certain creditors of his, "and that fact was all that was needed to support the decision of the court that the gift was invalid pro tanto. And besides, as is elementary law, all gifts are invalid as against existing creditors of the donor, and will be set aside at their suit; and the court in the case just cited also held that, “whether the deposit with Wilkinson in 1876 was intended to take effect before Irick’s” (the donor’s) “death or not, which is not clear, this gift to his children was voluntary and cannot be upheld against his .creditors.”

[10-11] Now it is, of course, well understood that a gift causa mortis may be revoked by the donor after it is made at any time before his death, and it will also be revoked by operation of law if the’donor recover from the particular illness or peril which existed at the time the gift was made and was the cause of the gift, or if there occurs a deficiency of assets necessary to pay the debts of the deceased donor. Basket v. Hassell, supra; 8 Am. & Eng. Ency. Law (1st ed.), p. 1851. See also other authorities cited in Shankle v. Spahr, 121 Va. at pp. 607-8, 93 S. E. 605; 2 Story’s Eq. Jur. (14th ed.) section 813, 815, 821. However, the proof in the cause before us does not disclose the existence of the peril or the illness of the donor at the time of the gift requisite to enable the plaintiffs or the said eldest one of them to rely on the gift in question being good as a gift causa mortis. But in any case, as we have just seen, the initial gift of the bank stock made on September 8, 1910, as disclosed by the evidence, as set forth in the statement preceding this opinion, must be regarded as having been a gift which was revocable by the donor at any time thereafter in his lifetime.

[12, 13] 2. Is the parol declaration of the donor made on his death bed, as per the testimony of the witness, Peters, set out in the statement preceding this, opinion, to the effect that (a) up to that time the character of a trust, previously imposed upon the gift of the bank stock which was. placed by the donor in the hands of the trustee, Russell, had not been changed; but that (b) the donor had partially re.voked the gift as first made to his oldest son exclusively, by subsequently (between September 8, 1910, and the time of the deathbed utterance in question), having in some way, the precise method being undisclosed by the evidence, directed the trustee to hold the bank stock for the benefit of all of his children, admissible?

We are of opinion that the evidence in question is admissible on the subject (a) stated, as forming a part of the res gestae. 10 R. C. L., pp. 974-980; Keister’s Ex’rs v. Philips’ Ex’x, 124 Va. 585, 98 S. E. 674. The main fact here involved is whether a trust relationship, unquestionably previously established, did or did not at a given subsequent time continue to exist. On that subject the bona fide conduct and accompanying declaration of one of the parties to that relationship are themselves facts which have a legitimate bearing, and are admissible in evidence. The proper weight to be given to it is another matter and depends, of course, upon all the other facts and circumstances. of the case.

We are also of opinion that in this case the evidence in question was also admissible as against Russell's estate on the subject (b) stated. If the character of a trust, previously unquestionably imposed on the gift of the bank stock in the hands of Russell, continued, whether the object or objects of the trust had been changed or even whether they had been so ineffectually declared as to be wholly unascertainable, so that the trust had become incapable of taking effect, were matters which in no way affected Russell or his estate. Even in any such case Russell could not, nor can his executors hold the subject of-the trust. It.would pass to those who would take under the disposition of the law. Sims v. Sims, 94 Va. 580, 27 S. E. 436, 64 Am. St. Rep. 772; Fitzsimmons v. Harmon, 108 Me. 456, 81 Atl. 667, 37 L. R. A. (N. S.) 400; Lewin on Trusts (1 Am. Ed.) top p. 1489.

[14] 3. Is the evidence in the cause sufficiently unequivocal, explicit, clear and convincing to establish that, after September 8, 1910, and prior to the death of the donor, the trust of the bank stock a,s originally created on the former date had been partially revoked by the donor and a different and enlarged trust, as to its objects, had been created by the donor by direction to the trustee to hold the subject of the trust for the benefit of all of the children of the donor, and that the trustee had, during such period, accepted such trust ?

[15-18] We are of opinion that this question must be answered in the affirmative.

We have in evidence the admission to this effect of Russell, as shown by the testimony of Smithson, ■ set forth in the statement preceding this opinion, when that admission is considered in connection with the conduct of Russell in making the remittances after the donor’s death for the benefit of a daughter of the donor. Conduct is in its nature a convincing character of proof. While the mere testimony of Smithson giving his recollection of a statement-made by Russell, who was dead at the time Smithson testified, although admissible as evidence, must be received with great caution (39 Cyc. 84-5; Garrett v. Rutherford, 108 Va. 478, 62 S. E. 389), and would have but little convincing force merely of itself; yet when that testimony is corroborated by the conduct of Russell in his lifetime in making remittances of substantial sums of money on three separate occasions, under circumstances which cannot be reasonably explained upon any other theory than that Russell then recognized the continued existence of the original trust of the bank stock accepted by him, with a change and enlargement of the objects of the trust, and as further corroborated by the deathbed declaration of the donor aforesaid, the cumulative evidence becomes unequivocal and clear and very convincing.

[19] It is urged in argument for the defendants, with much force and ability, that the evidence in the cause showing the character of Russell for integrity, his pledging of the bank stock as collateral for personal obligations, his inclusion of it in the financial statements made by him of his assets, his failure to make any record of the trust, the fact that he did not leave at his death any memorandum on the certificate of the stock or among his papers or on his books, when he knew some six months before his death that his end was near, furnish convincing evidence that he left no unsatisfied trust existing at his death; although the trust as alleged in the bill may have been originally created and accepted by Russell as therein alleged. And what is said by Mr. Justice Story, in the opinion of the Supreme Court in Prevost v. Gratz, 6 Wheat. 481, 5 L. Ed. 311, as to the presumption of fair dealing which will be drawn after a lapse of time and the loss of evidence by the death of parties, is urged upon our consideration. It is there justly said that, “Fraud or breach of trust ought not lightly to be imputed to the living; for the legal presumption is the other way; and as to the dead, who are not here to answer for themselves, it would be the height of injustice and cruelty to disturb their ashes and violate the sanctity of the grave, unless the evidence of fraud be clear beyond a reasonable doubt.” And again: “If after the lapse of forty years and ■the death of all the original parties, we were to- come to a different conclusion, it would be pressing doubtful circumstances with uncommon rigour against unblemished character; where the confidence reposed was so intimate, that the whole evidence could not be presumed to be before us. We would indulge in opinions which might be erroneous and might, in an attempt to redeem the plaintiff from conjectural fraud, inflict upon others a most gross injustice. We think, therefore, that the true and safe course is to abide the rule of law which, after a lapse of time, will presume payment of a debt, surrender of a deed, and extinguishment of a trust, where circumstances may reasonably justify it.” The cogency and justice of this deliverance is irrefutable. It is because of the considerations thus suggested that while the statute of frauds and the statute of limitations will not bar a suit in equity to enforce an express continuing trust, although dependent upon parol evidence for its establishment ; yet prescription, or laches in the assertion of it, or lack of sufficient evidence of an unequivocal and convincing character to clearly and satisfactorily establish the trust will operate to defeat its enforcement. These considerations have been all borne in mind by us in weighing the evidence in the cause before us. And it is a very different case from that last mentioned. In the case before us we have not alone parol evidence of the admission of the trustee shortly before his death that the trust continued to exist in the changed and enlarged form, as aforesaid, but conduct of the trustee in making remittances every time he was called upon prior to his death, which we feel cannot be reasonably accounted for except the hypothesis that they were made on account of and in recognition of the existence and of the continuance of the trust in such changed and enlarged form. And we have the existence of the pregnant fact that Russell never mentioned to Osborne or to Peters that the trust no longer existed. It is not a case involving any breach, of trust on Russell’s part. The evidence to our minds is clear and convincing that he never in his lifetime repudiated the trust. While under ordinary circumstances his failure to make any record, or leave at his death any memorandum, etc., as above mentioned, in view of Russell’s business habits and high character, would carry great weight as evidence that the trust had terminated before his death, such considerations are, under the peculiar facts of this case, stripped of most, if not all of their evidential value in such direction. The very reason for the trust demanded the utmost secrecy consistent with the knowledge of it by the donor and donee, and by those to whom the donor confined its existence. Before his death the trustee knew that he was leaving behind him at least one living witness, Peters, who knew of the existence of the trust; and also, as Osborne had been present and took part in the original creation of the trust, it was natural for Russell to suppose that Osborne would supply another witness to establish it after his, the trustee’s death. The conduct of the trustee under consideration, so far from being inconsistent with the continued existence of the trust, was wholly in accord therewith. And touching the pledging of the bank stock and the inclusion of it in the financial statements of the trustee as his individual property, the following circumstances render that conduct, to our minds, entirely consistent with his integrity and with his recognition of the continued existence of the trust. As appears from the statement of the facts preceding this opinion, the subject of the trust as first created was in fact money. The elaborate and specific action of, first, the delivery of the money by the donor to the trustee through the hands of the witness, Osborne, secondly, the purchase by the trustee of the donor of the bank stock by the use of this same money, could not have been intended by experienced, practical business men, as these were, to have been meaningless. In truth, what was done evidenced that the subject of the trust was indeed money. ' The transaction created a debt of the trustee, a debt fiduciary in its character, a trust debt, but nevertheless a debt, the primary obligation of which upon the trustee was that he should hold in trust and eventually pay out money. The real obligation, might therefore most naturally have been regarded as a. money obligation, as a holding in trust of the money—as Russell in fact regarded it, according to Smithson’s testimony. And this too may well account for Pettus’ testimony, even if admissible as, evidence (which it is unnecessary for us to decide upon), to the effect that if he was not mistaken “Russell said something to him about having bought the stock.” In .Osborne’s mind, the investment of the money in the bank stock made the greater impression so that he naturally attaches to that transaction, the terms of the trust, which were primarily, according to his own testimony, attached also to the gift of the money. That is immaterial, however, since under well settled rules of equity the beneficiaries in such case have the option to hold the trustee or his estate liable for the money with interest, or the property in which it was invested, with all actual profits, where the rights of no third person intervene. I Lewin on Trusts, top p. 340; 2 Perry on Trusts, section 835. That is to say; equity, in such case, at the option of the beneficiaries, will impress upon such investment the same trust as originally adhered to the money which was used to make the investment. But this does not at all affect the fact that Russell doubtless regarded the transaction as a money obligation and the investment in. the stock as but an investment subject to change at his will, since he was solvent and his estate amply sufficient to satisfy the trust. Hence, it is'plain that Russell regarded the bank stock as his own and dealt with it accordingly. And doubtless also he regarded the provision in his will for the payment of his just debts—which indeed the law would have made in any case—as all that was necessary to hold his estate responsible for the trust debt.

[20] The only subject which-could be said to be left open to any reasonable doubt is that of whether the youngest son of the donor was by the second declaration of trust excluded from the benefit of it. The testimony on this subject is outlined in the statement preceding this opinion. And it must be frankly admitted that if the case rested alone on the testimony of the witnesses bearing on what were the precise terms of the second declaration of trust, this subject would be left in doubt. But here again we have in evidence the conduct of three actors in the matter—that of the donor on his deathbed including the subject of this trust among other assets about which he then made certain evidentiary declarations of trust and of gift, embracing the declaration that the subject of this particular trust was held “for his children” by Russell, with no limitation appended to that specific item, and with Peters’ testimony in explanation of what the donor did later on in the deathbed statement say as to not wanting the boy “to have anything;” that of Peters subsequently, who, the evidence leaves no room to doubt, was actuated at the time by the sole motive of faithfully putting into effect the terms of the trust as it existed at the time of the death of the donor as then evidenced by the deathbed statement of the latter, aiid that conduct evidenced that the youngest son of the donor was not excluded, but was included as one of the objects of the trust by the terms of it as it existed at the time of the death of the donor as then declared by the latter—and we have the conduct of Russell, the trustee, aforesaid, which, in effect, also evidenced such existence of the same trust. The cumulative effect of such evidence is very convincing; and we are of opinion that the evidence on the subject, when all of it is considered, measures up to the standard of the character of proof required in such cases stated in a preceding part of this opinion, and establishes the fact that the trust, as it existed at the death of the donor, was for the benefit of all of his children.

[21]' 4. But if it were conceded that the evidence left it in such doubt as to render the fact unascertainable from the evidence whether .the youngest son is included among the objects of the trust, would the trust be, for that reason, incapable of enforcement?

[22] The certainty as to the designated objects of a trust which the law requires to make the trust enforceable in a court of equity, as contemplated in the authorities, notwithstanding what is said in those cited for defendants on this .'subject—(39 Cyc. 34-5, 58, 59, 60, 70-2, 80; 2 Pomeroy’s Eq. Jur. (3d ed.), sections 997-98, 1009 and notes; Doan v. Ascension Parish, 103 Md. 662, 64 Atl. 314, 7 L. R. A. (N. S.) 1119, 115 Am. St. Rep. 379; Hill on Trustees (3d ed.), star pp. 44, 59)—is not certainty as to all of the objects or beneficiaries of the trust.

As held in Hill’s Ex’rs v. Bowman, 7 Leigh (34 Va.) 650, at p. 657, of a trust created by a will, per opinion delivered by Judge Tucker: “No authority in point has been produced to show that a declaration of trust, in favor of certain definite objects of the testator’s bounty, is avoided because in the same clause there is a limitation to persons not certain and ascertainable. Reason and authority, on the other hand, conspire to say, that so far as the testator’s will is legal, intelligible and certain, it shall be effectuated, and what is illegal, insensible and uncertain shall be rejected.” Accordingly, the court in that case held the trust good as to the designated beneficiaries of the trust, although the trust was held to be void with respect to certain beneficiaries not designated with sufficient certainty to identify them. This holding is. equally applicable to other express trusts, such as that involved in the. cause before us..

[23] 5. Is the statute of frauds (Code 1887, section 2840, sub-section 7; Code 1919, section 5561) applicable to an express parol trust, such as that involved in this cause, the duties of which are not to be completely performed within a year?

It is well settled that the statute of frauds is not applicable to an express trust in personalty, although created by parol. Riggan’s Adm’r v. Riggan, 93 Va. 78, 24 S. E. 920; 1 Perry on Trusts (6th ed.) section 86; 1 Lewin on Trusts (1st Am. ed)., top p. 54; 3 Pomeroy’s Eq. Jur. (3d ed.) section 1008; Berry v. Berry’s Ex’r, 119 Va. 9, 89 S. E. 242. It was at one time open to contention in this State that the statute of frauds was applicable to an express parol trust in realty; but it has been for some time settled with us that such statute is not applicable even to express parol trusts in realty. Young v. Holland, 117 Va. 433, 84 S. E. 6, 637; Fleenor v. Hensley, 121 Va. 367, 93 S. E. 582.

As said in Perry on Trusts, supra (section 86): “Personal chattels are not within the terms of the statute” (of frauds) “and trusts in personal property may be declared and proved by parol. * * * It has been so ruled in express decisions in the United States”—citing a great number of authorities. To the same effect is Lewin on Trusts, supra (top p. 54), and 3 Pomeroy’s Eq. Jur, supra (section 1008). The principle on which this doctrine rests is, as is especially developed in the American authorities, not upon the determination of whether the duties imposed on the trustee are or are not to be performed within a year; but upon the consideration that to apply the statute in favor of a trustee who has obtained the custody of the subject of a trust upon the faith of his promise, express or implied, to perform the duties of the trust, would facilitate rather than prevent fraud; “that the statute is intended to prevent not to facilitate fraud;” and that, “the rule in equity always has been that the statute is not allowed as a protection of fraud, or as a means of seducing the unwary into false confidence, whereby their intentions are thwarted or their interests are betrayed.” See American note to Lewin on Trusts, supra (bottom p. 66). The same principle permits the showing by parol evidence, notwithstanding the statute of wills, that what is on the face of a will an absolute devise or bequest is in truth a trust, where the provisions of the will in that form were induced by the confidence reposed by the testator in the nominal beneficiary, in reliance upon the promise of the latter that he would execute the trust. Sims v. Sims, 94 Va., at p. 588, 27 S. E. 436, 64 Am. St. Rep. 772; 1 Lewin on Trusts, top pp. 64-5. On the same principle too, courts of equity enforce parol contracts for the sale of real estate, notwithstanding they fall within the express terms of the statute of frauds, where there has been such part performance that not to do so would in effect operate to sanction rather than to prevent fraud.

We need not here go into the differences between the English statute and our statute of frauds,' as they are immaterial to the case we have in hand.

[24] 6. Is the statute of limitations applicable to a continuing express parol trust, such as that involved in this cause, of which there has been no unequivocal denial or repudiation by the trustee?

This question must be answered in the negative.

It is true that the statute of limitations is applicable in favor of the- trustee to certain trusts other than express trusts. Supervisors v. Vaughan, 117 Va, 146, 83 S. E. 1056; Berry v. Berry’s Ex’r, 119 Va. 9, 89 S. E. 242. But as’to express trusts, which have not terminated, the rule is different.

As said in Wood on Limitation of Actions, section 200, p. 418: “It is well settled that a subsisting, recognized and acknowledged trust, as between the trustee and cestui que trust, is not within the operation of the statute of limitations.” See also, Idem, section 201, where trusts in personal property created by parol are classed as trusts falling within the rule just quoted, if they are subsisting, recognized and acknowledged trusts.

In the same learned work, in section 212, it is said: “* * * So long as the trust subsists, the right of the cestui que trust will not be barred by the possession of the trustee, however long continued, as the possession of the trustee is treated as the possession of the cestui que trust, and although he does not execute the trust, his mere possession and inactivity as to the trust, of themselves, afford no indicia of an adverse claim by him. But if the trustee denies the trust, and assumes absolute ownership of the trust property, in such a manner that the cestui que trust has actual or constructive notice of the repudiation of the trust by the trustee, the statute attaches and begins to run from that time-against the cestui que trust, unless the latter is at the time under some one of the statutory disabilities, or is under undue influence proceeding from the trustee. Such denial of the trust, and assertion of an adversary claim in himself, is an abandonment of the fiduciary character in which he has stood to the property, and from that time the claim of the cestui que trust is subject to the operation of the statute. But in order to put the statute in motion, it must appear that the cestui que trust had, or ought to have had, knowledge of the trustee’s denial, repudiation, or adverse claim, and that the trustee has been guilty of no fraud in that regard.” To the same effect, see 2 Perry on Trusts (6th ed.), section 868; Hammond v. Ridley’s Ex’r, 116 Va. 393, at p. 399, 82 S. E. 102; Bargamin v. Clarke, 61 Va. (20 Gratt.) 544; Hogg’s Eq. Principles, section 567.

[25, 26] 7. Can -the plaintiffs maintain this suit, or can it be maintained only by a substituted trustee appointed by court in the place and stead of Russell?

The first branch of this question must be answered in the affirmative and the latter branch in the negative.

This is not an action at law, but a suit in equity, in which' forum the parties beneficially entitled are the proper parties to be before the court. The appointment of a substituted

trustee in the place and stead of the deceased trustee is a matter wholly foreign to the right of the plaintiffs to institute and maintain the suit. The appointment of a substituted trustee is in every case a matter of discretion in the court, having in view the consideration of whether the circumstances render such appointment necessary or desirable. Hill on Trustees (4th Am. Ed;), p. 298. It is a matter which does not go to the jurisdiction of the court to take cognizance of the cause, but pertains to its action in the course of its exercise of its jurisdiction. And in the instant case, when the guardian can, under the guidance of the court if need be, exercise all of the powers which were conferred on the deceased trustee, even those involved in the discretion given him of using the fund as he “saw fit” for the benefit of the cestui que trust (1 Lewin on Trusts, top pp. 613-15), there is manifestly no necessity for the substitution of a trustee.

[27] 8. Is the decree under review erroneous in that, while it establishes the same trust as that alleged in the bill, in so far a.s the trustee and the subject of the trust is concerned, it establishes it for the benefit of more persons as objects of the trust than are alleged in the bill? And, if so, is that reversible error?

The first branch of this question must be answered in the affirmative; the latter in the negative. .

The bill should have been amended under the statute in such case made'and provided (Acts 191.4, p. 641; Code 1919, section 6104), so as to make its allegations of fact conform to the proof in the cause in the particular in question, before the decree was entered. From what we have said above, however, it is obvious that this failure to amend the pleadings did not “affect the substantial rights of the parties.” It did not affect the substantial rights of the defendants, for they have no right to. hold the assets in question, regardless of whether one only or all, or indeed none of the plaintiffs may be entitled to enforce the trust. It did not affect the substantial rights of the oldest of the plaintiffs, since the proof shows that he is entitled to recover only as a beneficiary of the trust which is established by the decree. And it did not affect the substantial rights of the other plaintiffs, since in our opinion, as above set forth, these plaintiffs are entitled to take only under a triist which is for the benefit of all of the plaintiff’s.

The. error was, therefore, under the statute just cited, • harmless, and hence it is not reversible error. Standard Paint Co. v. Vietor, 120 Va. 595, 91 S. E. 752.

[28] 9. Is the decree under review erroneous in that it denied all allowance of commission, on his receipts to the trastee or his estate, except five per cent, on his dividends collected on the stock by the trustee in his lifetime and by his executors ? And is the decree erroneous in that it makes the last-named allowance?

The1 English -rule at common law was very strict on the subject of commissions, and under it a trustee is not entitled to any compensation for his personal or professional services, in the absence of express provision for compensation in the terms of the trust. 2 Lewin on Trusts 630-1; 39 Cyc. 480. But, as laid down in the authority last cited (39 Cyc. 480), “The accepted rule in this country at the present time, however, is, in case the matter is not otherwise regulated by statute, for courts of equity to exercise just discretion, and make or withhold allowance as they consider the peculiar circumstances require.” Again, the authority last quoted, at p. 483, says: “For what services allowed. * * * commissions are allowed to a trustee only as a compensation for services actually rendered in the execution of the trust * * * The mere fact that he is a trustee will not support a demand on his part for compensation * * And again, Idem, p. 487: “As a general rule commission on the principal sum coming into the hands of a trustee will not be allowed; but if services are rendered for the collection of the corpus, the court has power to make an allowance out of the fund.”

Such is the general doctrine on the subject under consideration, when, as in the case under consideration, there is no statutory provision for the commissions. And, without meaning to hold that such doctrine may not be modified in the sound discretion of the courts in cases of active trusts, we think that it is applicable to a trust such as that involved in the cause before us, where the execution of the trust beyond the amount actually disbursed as aforesaid has to be enforced by the court.

[29] We think, therefore, that the court below properly exercised its discretion in allowance of commissions only to the extent of five per cent, commissions on the $300 of disbursements which were actually made by the trustee in part execution of his trust; and that the decree under review is erroneous in so far as it makes any further allowance of commissions; as the residue of the trust was not executed by the trustee or his executors, nor intended to be executed by the latter.

[30] 10. Should the trustee, Russell, or his estate, have been charged with compound interest on the dividends on the bank stock received by Russell and his executors?

The plaintiffs rely on 1 Lewin on Trusts (1st Am. Ed.), pp. 277, 340, 341, 342 and 343 to sustain the position that such compound interest should have been charged.

We find nothing in this authority going beyond reference to the holdings of the court in certain cases, that compound interest will be charged against an executor or trustee where “a testator expressly directs an accumulation,” or where trust moneys are used by a trustee for his own benefit in carrying on his own trade. There is no such case before us. We think there is no error in the decree in its. failure to charge compound interest against the trustee or his executors.

The decree under review will be modified so as to deny all allowance of commissions to the estate of Russell, except to the extent of five per cent, commissions on the $800 credit above mentioned, and as so modified will be affirmed.

Affirmed.