Woodruff v. Snedecor , 68 Ala. 437 ( 1880 )

STONE, J.

The receipts and disbursements by the trustee, Woodruff, aggregate about $4,350. The nature and character of the trust and trust property show that, in executing the trust, rather unusual trouble and annoyance were to be encountered. Five per cent, on each side of the account, debit and credit, should have been allowed to the trustee.—Magee v. Cowperthwaite, 10 Ala. 966; Gould v. Hayes, 25 Ala. 426; Pinckard v. Pinckard, 24 Ala. 250; 1 Brick. Dig. 978, § 907.

The testimony scarcely justified the charge of one hundred dollars per annum, as rent for the old printing-office. We are not convinced by the testimony set out that the trustee did not employ reasonable diligence to procure a paying tenant, nor that the property could have been let at a rental of one hundred dollars per annum. Trustees are required to employ that degree of diligence which an ordinarily prudent man bestows on his own similar business interests ; and if he do so, he acquits himself of blame. We send this question back for further testimony.

Under the rule declared in Smith v. Kennard, 38 Ala. 695, we think this a case for division of counsel fees between the trust fund and. the trustee personally. Let the register ascertain what would be a reasonable fee for services rendered in this case, including services on this appeal, and let one-half of such sum be allowed the trustee as a credit against the trust liability.

Beversed and remanded.