O'Brien's Estate

Opinion by

Head, J.,

It is doubtless true many cases may be cited which speak of the commissions or percentage due to an executor or trustee for services rendered in the discharge of official duty. But it is equally clear that whenever it has been necessary to define the legal status of a trustee in this respect, the courts have uniformly held that what such trustee is by law entitled to receive is compensation for responsibility necessarily assumed and services performed in the execution of the trust: Harland’s Accounts, 5 Rawle, 323; Montgomery’s App., 86 Pa. 230; Harrison’s Est., 217 Pa. 207. In the case last cited Mr. Justice Mestrezat reviews the decisions and clearly points out the reasons on which the true rule rests. It follows the major proposition advanced by the able counsel for the appellant, to wit, “The executor of this estate, who is also a testamentary trustee, is entitled to a commission of five per cent of the corpus of the estate, etc.,” cannot be accepted as a strictly accurate statement of the rule.

We may concede that in most respects, save perhaps in the probable duration of the trust and the difficulty of ascertaining the heirs who might ultimately be entitled, Davis’s App., 100 Pa. 201, resembles the case at bar. There the learned orphans’ court, in view of all of the circumstances, fixed the compensation of the executor trustee at a sum equal to five per cent of the corpus of the estate. On appeal, the Supreme Court said: "In view of all of the circumstances it is not clear that the amount allowed was unreasonable.”

So in the present case, where the learned court below fixed the compensation of the appellant at less than five per cent, we are compelled to say, after an examination of the entire record and arguments of counsel, it has not been made clear to us that there has been any abuse of discretion or that the compensation fixed by the court below is unreasonable.

The decree is affirmed.