53 Vt. 360 | Vt. | 1881
The opinion of the court was delivered by
I. The. commissioner has found that the defendant received annual interest on his ward’s money. He has for that reason charged him with annual interest on the funds in his hands, and allowed him annual interest on his expenses and disbursements. The defendant’s account, as rendered, contains no account of the interest, which he has actually received. It is conceded that the rule is that he is not to make a gain from the funds he holds in trust for the ward. It is not apparent that the method of computing interest adopted by the commissioner makes him chargeable for more interest than he has received. On his failure to account for the interest received, he cannot complain if he is charged with interest cast in the same method which he admits has been used in computing interest on the investments. It is contended, however, that this method allows him nothing for loss of interest on money kept on hand for current disbursements. In the account he is allowed a gross sum for loss of interest in this respect. The rules applicable to a guardian in accounting with
II. The County Court as a matter of law decided that it could not allow the defendant any of his reasonable expenses and disbursements incurred in the accounting in that court. In this, we think, the County Court was in. error. We have no statute giving the County Court such power. The section of the statute (s. 35, p. 374) does not cover nor apply to such expenses and disbursements. But the defendant’s relation to the money and property of his ward was that of a trustee. A trustee is entitled to be reimbursed out of the fund for his reasonable expenses and charges incurred in good faith, in the exercise of common prudence, in administering the trust. Rensselaer & Saratoga R. R. Co. v. Miller & Knapp, Trs., 47 Vt. 146; Moore v. Jones et al., 23 Vt. 737. Expenses and disbursements incurred in administering the trust, and made necessary by the negligence or fault of the trustee, or in resisting the proper and lawful demands of the cestui que trust, are not allowed. The decision of the County Court was without reference to the rules governing such allowances, and placed solely upon the power or right of the court to allow or consider them. Any court charged’with the settlement of the trustee’s account must, as incident thereto, be clothed with power to make all proper allowances for expenses and disbursements made or incurred in the legal administration of the trust. In no other way can such court whether probate or other court, settle the account of the trustee, and ascertain the sum for which he should be chargeable. This power of necessity inheres in the court charged with the duty of making a final settlement of the