Irene Ii Holloway during her lifetime, to wit, on September 17, 1915, conveyed to the Hawaiian Trust Company, Limited, certain shares of the capital stock of the John Ii Estate, Limited, in trust among other things to pay all of the net income of the trust estate to the trustor during the term of her natural life and after her death to pay the same to the person or persons appointed or entitled to receive the same by her will. The trust deed is not revocable by the trustor until the expiration of ten years from the date thereof. It provided: "This trust deed shall not be subject to revocation by said Irene Ii Holloway until the expiration of ten years from the date hereof * * *." The compensation which the trustee was entitled to receive for its services as such was fixed by the trust deed. It provided: "The trustee shall receive as compensation as said trustee two and one-half per cent. (2 1/2%) of the gross income of the trust estate and at the termination of the trust a sum equal to two and one-half per cent. (2 1/2%) of the present par value of the capital stock hereby placed in trust." On January 5, 1922, she made her will. This she amended by two codicils dated January 6, 1922, and April 10, 1922, respectively. The testatrix died August 26, 1922. Her will and codicils were admitted to probate in the first circuit court on October 2, 1922, and letters testamentary issued to the Hawaiian Trust Company, Limited. The will and codicils after making certain specific bequests and devises devised and bequeathed all the rest, residue and remainder of the estate of the testatrix to the Hawaiian Trust Company, Limited, and in the exercise of the power of appointment reserved under the trust deed and by virtue of every other power her thereunto enabling the testatrix appointed the Hawaiian Trust Company, Limited, its successors in trust and assigns *Page 345 forever to receive the income and principal of the trust estate created by said trust deed according to the terms and provisions thereof upon certain uses and trusts, the details of which I deem immaterial to the present issues.
Administration was duly had upon the estate of the decedent and distribution made to the Hawaiian Trust Company, Limited, as trustee. On May 20, 1924, the trust company as trustee under the will filed its first and annual account. By schedule "A" of the account the trustee debited itself with the sum of $32,662.50 as deposits "by trust created by Irene Ii Holloway" from October 2, 1922, to September 29, 1923. This sum represented the net income from the trust estate created by the trust deed after the deduction and retention by the Hawaiian Trust Company of 2 1/2 per cent. of the gross income of the trust estate as compensation for its services rendered as trustee under the trust deed of September 17, 1915. By schedule "B" it credited itself with and prayed to be allowed commissions as trustee under the will upon the amount of such receipts computed on the basis of ten per cent. on the first thousand, seven per cent. on the next four thousand and five per cent. upon the amount in excess of the first five thousand dollars. Upon reference of the accounts to a master that officer recommended that the trust created by the trust deed of September 17, 1915, be declared to have terminated upon the death of the trustor on August 26, 1922; that the trustee thereunder be disallowed the commissions on income after said date and that the trust estate held thereunder be transferred to the trustee under the will and of the estate of the trustor. The probate judge having doubts upon the points raised by the master and deeming the questions sufficiently important to reserve them to this court under the statute reserved eight questions for our opinion. These questions take a wide range. In *Page 346 view, however, of my conclusion that the income from the stock in the John Ii Estate, Limited, is neither "moneys received in the nature of revenue or income" of the trust estate created by the will of the testatrix nor "moneys received representing the estate at the time of the institution of the trust" under the will within the meaning of R.L. 1925, s. 2544, I deem the questions reserved to resolve themselves into but two — first, Did the trust estate created by the deed of trust of September 17, 1915, terminate upon the death of the trustor? and, second, what commissions, if any, the Hawaiian Trust Company, Limited, is entitled to receive upon income accrued upon the stock of the John Ii Estate, Limited, originally conveyed to it as trustee by the deed of trust of September 17, 1915.
The trust deed recites as one of the considerations for its execution by the trustor that her sons, George and Francis, executed at the same time similar deeds of trust to the same trustee. It also provides that the trust is not revocable until the expiration of ten years from the date thereof. It further provides that the trustee have power to manage, control and operate and join with other stockholders in managing, controlling and operating the business and property of the John Ii Estate, Limited, and that it should have and might exercise all the rights and powers of the owners of said capital stock and do every act and thing in the course of or in connection with such ownership, management, control and operation which it might deem necessary or advisable. It is admitted and included in the reservation as a fact, that the three deeds of trust executed by the mother and two sons, respectively, cover two-thirds of the capital stock of the John Ii Estate, Limited, and that those executed by the sons are still in force and effect. While it is true that under the trust deed the trustee had no power of sale *Page 347 or other disposition of the stock except upon the express written consent of the trustor, and now that she is dead and her consent is not procurable it may be said that the trustee holds the bare legal title to the stock, this I do not believe is sufficient in itself to terminate the trust in view of the express agreement that it should exist at least for ten years, during which time it is irrevocable, and that by it and the similar trust deeds of the sons the trustee was empowered to exercise the prerogatives of a majority stockholder in relation to the management and control of the corporation. The trust instrument of September 17, 1915, in my opinion did not terminate upon the death of the trustor but was in full force and effect during the time of the accrual of the income from the capital stock of the John Ii Estate, Limited, statutory commissions upon which are prayed by the Hawaiian Trust Company as trustee under the will.
Next as to commissions. The services for which the trustee claims compensation, in order to its allowance, must have been performed by it as trustee under the will. The statute computes the compensation of executors, administrators and guardians in respect to moneys received accordingly as they are "received representing the estate at the time of the institution of the trust" or "moneys received in the nature of revenue or income of the estate." R.L. 1925, s. 2544, provides that executors, administrators and guardians shall be allowed commissions upon all moneys received and accounted for by them, that is to say: "Upon all moneys received representing the estate at the time of the institution of the trust, such as cash in hand and moneys realized from securities, investments, and from sales of real estate and personal property other than interest, rents, dividends and other profits coming due after the inception of the trust, two and one-half per centum. * * * Upon all *Page 348 moneys received in the nature of revenue or income of the estate, such as rents, interest and general profits, ten per centum for the first thousand dollars, seven per centum for the next four thousand dollars, and five per centum for all amounts over and above the first five thousand dollars." These provisions have been held by this court to be applicable by analogy to trustees. If these moneys were received by the Hawaiian Trust Company as trustee under the will either one of the provisions of the statute applies. If on the other hand these moneys were received by the Hawaiian Trust Company as trustee under the trust deed of September 17, 1915, then the express provision as to compensation of the trustee contained in the trust deed controls and the statute does not apply. I take it that the income which accrued upon the capital stock of the John Ii Estate, Limited, subject to the trust deed of September 17, 1915, was in the form of dividends paid by the corporation upon its outstanding capital stock to the respective owners thereof. As the owner of the legal title to the capital stock of the John Ii Estate, Limited, conveyed to it by the trust deed, the Hawaiian Trust Company received the dividends paid thereon by the corporation as trustee under the trust deed. It was "revenue or income" of the estate created by the trust deed and not "revenue or income of the estate" created by the will. It cannot be considered in any sense as "rents," "interest" or "general profits" of the estate created by the will. Nor is it "moneys received representing the estate at the time of the institution of the trust" under the will. The word "received" imports the transfer of title and possession to the trustee by another. One cannot "receive" from one's self. (Selden v. Equitable Trust Co., 94 U.S. 419, 422.) The Hawaiian Trust Company at the time of the institution of the trust created by the will held the legal title to the capital stock of the John *Page 349 Ii Estate, Limited, subject to the trust deed. As such holder of the legal title dividends paid upon the stock to and received by the Hawaiian Trust Company vested in it as trustee under the trust deed. It cannot as trustee under the will "receive" these moneys from itself as trustee under the trust deed. Whatever service the Hawaiian Trust Company performed in respect to the receipt of income accruing from the capital stock of the John Ii Estate, Limited, subject to the trust deed of September 17, 1915, it performed as trustee under that trust deed. For that service it has received compensation under and pursuant to the provisions of the trust deed. The authorities are uniform that where the parties to a trust instrument expressly agree in advance what compensation the trustee shall receive for his services as such the agreement is exclusive and statutory provisions fixing the compensation of trustees do not apply. Much less so do the statutory provisions applicable to executors, administrators and guardians apply to trustees the compensation of whom is expressly agreed in the trust instrument under which they act.
I concur with so much of the majority opinion as holds that the trust deed of September 17, 1915, was during the period covered by the accounts herein in full force and effect but I respectfully dissent from so much thereof as holds that the Hawaiian Trust Company is entitled to any further and additional compensation under the provisions of R.L. 1925, s. 2544, in respect to moneys paid to and received by it comprising income accrued from the capital stock of the John Ii Estate, Limited, subject to the trust deed of September 17, 1915. *Page 350