The opinion of the court was delivered by
Mr. Justice McIver.The facts out of which the questions made by this appeal arise are, substantially, as follows: The plaintiff having become trustee of the defendant under a marriage settlement executed by her in contemplation of marriage with her late husband, R. D. Brunson, commenced an action against James B. Griffin, the guardian of the defendant, and his sureties, to recover the amount due by such guardian, which resulted in judgments against the guardian and one of his sureties, as well as against the heirs at law, legatees, and devisees of another surety to whom lands had descended. This ivas done in accordance with one of the provisions of the marriage settlement, by which the trustee “is required, and shall have power, to make settlements with James B. Griffin, guardian, or with any person for said James B. Griffin, in whose hands the property, estate, and funds of said Margaret C. Hollingsworth (now Brunson) may be. * * * And the said trustee * * * is further empowered to bring suits, and take such steps for the collection and preservation of the property, money, and estate of said Margaret C. Hollingsworth, as he may deem proper and fit, and proceed against any person or persons who may be liable or bound to said Margaret C. Hollingsworth for any property, money, or estate appertaining or belonging to her, and as a compensation for such labor and trouble, the trustee shall be entitled to retain a reasonable sum from the trust funds to pay expenses and charges.”
It seems, therefore, that one of the objects contemplated by the parties in executing the marriage settlement was to provide for the collection of the money due to the defendant by suit if necessary. Accordingly, as we have said, suit ivas brought by Lanier, in which he joined with him as plaintiffs the defendant and her husband. The latter, however, died October 1st, 1870, after the suit was commenced; but it does not appear that any notice was taken of that fact in the future progress of the case. Some time subsequently to the recovery of the judgments above mentioned a compromise was effected with John H. Hollingsworth, one of the parties against whom judgment was recovered, whereby he was to be dischai’ged upon the payment to the defendant of five thousand dollars and her counsel fees and costs, *47estimated at the amount of two thousand and sixty-one dollars, and accordingly a paper was drawn up, of which the following is a copy:
“State oe South Carolina, County of Edgefield. In Common Pleas.
“James A. Lanier et al., plaintiffs, against James B. Grieein et at, defendants. — Bill for account, &c.
“A decree having been made by the Supreme Court in this case, and judgment having been entered thereon, and a compromise having been made in the case between John H. Hollingsworth and M. Cornelia Brunson for the sum of seven thousand dollars ($7,000), the said Cornelia Brunson hereby remits to the said John H. Hollingsworth, who is a legatee and takes under the will of D. M. Hollingsworth, all the rights which the law gives to a surety who pays a debt, and further assigns, transfers, and sets over to John H. Hollingsworth all her right, interest, and title in and to said case, and in the judgments in said case, and her right against all the parties thereto against w'hom she may have claims, but all without recourse in any form against her, and without recourse upon her for costs and fees. The balance of attorney costs, $61, to be paid to General Gary by John H. Hollingsworth.
“M. C. BRUNSON.
10th January, 1881.
“J. A. LANIER,
“ Trustee for M. C. Brunson.
“Witness: Thomas Thomson.
“Witness: W. H. Folk.”
In pursuance of this compromise, John H. Hollingsworth paid over to the defendant the said sum of five thousand dollars in the presence of the plaintiff, who then claimed his commissions, but was induced to refrain from pressing his claim at that time, for fear of breaking up the compromise, being told that he could afterwards assert his claim. The testimony of Hollingsworth was that he refused to pay over the money unless Lanier signed the assignment of which the above is a copy. This action was *48then brought by the plaintiff to recover commissions on the said sum of seven thousand dollars, and the defendant, amongst other defences, set up a counter-claim as follows: “That the said James A. Lanier is indebted to her as executor of Robert D. Brunson, deceased, by his note dated May 26, 1869, due at one day, in the sum of five hundred dollars, less a credit of $25, August 30, 1870, for cash loaned to him.” To this counter-claim the plaintiff filed a demurrer upon the ground that it did not state facts sufficient to constitute a counter-claim; and that it is not a countei’-claim to this action, the defendant having no right of action on the same in her individual capacity.
The case came before the Circuit judge upon the master’s report and exceptions thereto, who held, so far as the questions involved in this appeal are concerned, that the plaintiff was entitled to commissions on the sum of five thousand dollars paid to the defendant, but not on the additional sum of two thousand and sixty-one dollar’s to be paid to her attorneys for fees and costs, and that the demurrer to the counter-claim should be sustained, upon two grounds: First, that the answer does not contain a sufficient allegation to support the counter-claim; second, that the note was not a proper subject of counter-claim in this action, not being due to the defendant in the same right in which she is sued; and rendered judgment accordingly.
From this judgment defendant appeals upon two grounds, the third being of too general a nature to require any notice from us, as has been frequently held: “1. Because of error in holding ‘that the plaintiff was entitled to commissions as trustee on the five thousand dollars paid to defendant by John IT. Hollingsworth,’ the said plaintiff never having received nor paid out the same. 2. Because of error in holding ‘that the note set up in discount by the defendant against plaintiff’s claim for commissions was not a good and valid counter-claim or set-off against any and all demands of the said plaintiff.’ ”
The reasons given by the Circuit judge and the authorities which he has cited in support of his conclusions are so entirely satisfactory that we scarcely deem it necessary to add anything to what he has said. It is very manifest that one of the objects in having the plaintiff appointed trustee was to have the claim of *49the defendant against the guardian properly prosecuted, as the marriage settlement not only authorized but required this to be done by the trustee. Now, when this duty was performed, and nothing remained to be done but receive the money which was the fruit of the litigation commenced and prosecuted by the trustee, it would seem strange indeed if the mere fact that the money ivas' paid into the hands of the cestui que trust instead of the trustee, who ivas present and ready to receive it, should deprive the latter of his claim to the usual compensation. The testimony shows that Hollingsworth refused to pay the money unless the trustee executed the assignment, which he accordingly did, and the case is, therefore, very much like the case suggested in the argument of respondent’s counsel, of money being deposited in bank to the credit of a trustee, which, of course, could only be drawn out upon his check. Certainly, in such a case, if the trustee, accompanied by his cestui que trust or her agent, went to the bank, signed the check, and allowed the money to be paid directly into her hands, instead of his own, this would not deprive him of his right to commissions.
It is argued, however, that upon the death of Robert D. Brunson the trust terminated, and the plaintiff was no longer trustee, and the defendant had a right to receive directly her own money. Even if this were so, it would seem a little strange that no such suggestion appears to have been made until the trustee comes to claim compensation for the performance of the very duty for which he was appointed. But is it so ? The marriage settlement contains no such provision; on the contrary, that instrument vested the legal title of the estate of the defendant, consisting solely of choses in action, personal property, in the trustee for the ver.y-purpose of enabling him to convert such choses in action into money; and even if there had been nothing further for the trustee to do, the property being personalty, the statute of uses would not apply, and until he had delivered possession, or in some other way divested himself of the legal title, the trust would continue. Harllee v. Platts, 6 Rich., 315, and other cases cited by the respondent. When he did turn over the assets to his cestui que trust, whether in the form of money or in the form *50of bonds or judgments, he would be entitled to commissions,under the authorities cited by the Circuit judge.
Again, it is argued that when Judge Carpenter rendered judgment in the original case of Lanier and others v. Griffin and others, he rendered judgment in favor of M. C. Brunson byname and not in, favor of the plaintiffs in that action, and, therefore, she alone, and not the trustee, had the right to enforce such judgment and receive the money. While it is true that the judgment is, in form, in favor of Mrs. Brunson, who was the real party in interest, yet it must be manifest that this was not done under the view that the trust had terminated, or with the purpose of excluding any of the rights of the trustee. Nothing of the kind appears in the decree. Indeed, it does not even appear in that decree, as reported in 11 S. 0., 567, when it was filed, or when Robert D. Brunson died, and it is quite clear that nothing whatever was intended to be adjudged as between the plaintiff, Lanier, and his co-plaintiff in that suit, Mrs. Brunson. The decree in that case ivas, in effect, though not in form, a decree in favor of the plaintiffs in that case, as it should have been. We do not think, therefore, that appellant’s position derives any strength from the fact that the judgment in that case was nominally in favor of M. C. Brunson.
The second ground of appeal cannot be sustained. There was no sufficient allegation that the defendant was the duly qualified executor of Robert D. Brunson, deceased, and therefore the counter-claim was open to the demurrer interposed. But in addition to this, it would seem from the authority cited (Pom. Rem., § 751) that the note set up as a-counter-claim, not being due to defendant in her own right, could not be pleaded as a counterclaim. Mrs. Brunson individually and Mrs. Brunson as executrix of the will of her husband are in law two distinct and different persons. Besides, 'even if the demurrer should have been overruled, the Circuit judge states that there was no evidence that the defendant had ever been appointed or qualified as executrix of her husband’s will, and this statement is fully sustained by an examination of the testimony set out in the “Case”; and in the absence of such evidence, it is quite clear that the counterclaim could not be sustained.
*51Whether the defendant could not, by proper allegations and proofs, have obtained the benefit of the note .set up as a counterclaim, or whether she may not still subject the amount recovered in this action to the payment of that debt, as intimated by the Circuit judge, are questions which are not now before us, and cannot, therefore, be considered or adjudged.
The judgment of this court is that the judgment of the Circuit Court be affirmed.