The parties interested in this controversy were Henry on the one side, and George, Charles, and Charles' family on the other. The plaintiff also had an interest in his trust capacity, and incidentally a personal interest-arising from *Page 167 prospective compensation for services as trustee. His interest was divided and conflicting. This conflict disabled him from exercising his discretion impartially. In the nature of things, he could not have "an eye single to the interests of the cestuis que trust." Bisp. Eq., s. 143. Under the circumstances, it was his duty to refer to the court sitting in equity the question as to the proper course to be taken by him in relation to the compromise agreement.
It appears, as the case is understood, that all parties to the controversy directly and indirectly interested in the question, understandingly and in good faith, entered into the agreement. Henry acted through his guardian, George and Charles are of age, as is also Charles' wife. It does not distinctly appear that she was a party to the agreement; but it is inferred that she was, since it appears that she signed the deeds executed by her husband in pursuance of it. It is also understood that Charles' children, through their guardian, were parties to the agreement. Each of the parties had the assistance and advice of able counsel. The matter in controversy was doubtful. The agreement was approved by the judge of probate. It was fairly made and was beneficial to Charles and his family. It is inferred from the general finding that it was also beneficial to Henry. Such being the facts, it is clear that the agreement ought to be carried into effect. If, however, it should appear at the trial term that the interest of William is affected adversely thereby, the trustee is advised not to join in the conveyance until William's rights are protected by a sufficient bond or otherwise. The decree will be modified to accord with this provision.
Since, under the agreement, the plaintiff will not be trustee of the property going to Henry, he will not be entitled to a trustee's compensation. By his appointment as trustee he acquired a right to only such compensation as he would be equitably entitled to for services rendered and risks assumed. As he will render no services nor assume risks as to this property, he is not entitled to any compensation.
Case discharged.
YOUNG, J., did not sit: the others concurred. *Page 168