(concurring specially) :
In regard to point one, the appellants, in essence, contend that since the unprofessional conduct statute prohibits a licensed embalmer or funeral director from engaging in direct solicitation, the activities of the respondents are merely a subterfuge whereby the appellants may enjoy the fruits of solicitation and avoid the statutory prohibition. Plaintiffs maintain that the statutory provisions are violated because the defendants are acting as agents, employees and representatives of a particular licensed funeral director. Basically, plaintiffs argue that the principal, the funeral director, although originally unidentified, when he later agrees to perform as provided in a pre-need contract, ratifies the contract previously procured by the corporate agent.
This argument is without merit and completely misapprehends the facts as presented. The mortuary is selected by the purchaser or his survivors, and it is the duty of the defendants, acting on behalf of the funeral purchaser, to present the contract for acceptance or rejection by the selected mortuary. It is difficult to comprehend how defendants, who are by statute desig-' nated as trustees with all the correlative obligations by virtue of this relationship, including the duty to act solely in the interest of the beneficiary, can be characterized as agents of the mortuaries.
In regard to point two, plaintiffs contend that a provision in defendants’ contract, which revocably appoints them as agents of the purchaser with the right to demand and receive the earnings of the trust funds.for their own use in exchange for their agreement to guarantee the services and facilities recited in the agreement, regardless of price increases, violates the statutory provisions of Chapter 4, Title 22, U.C.A.1953.
Any agreement which falls within the . description o-f services recited in § 22-4-1, U.CA.1953, must necessarily comply with all the provisions of Chapter 4, -Title 22. Any payment of money is designated as trust funds, and any person so receiving them is a trustee. The chapter further prescribes certain duties that the trustee must . undertake; these provisions are therefore incorporated into and control any prearranged funeral agreement.
Section 22-4 — 4, U.C.A.1953 provides in effect that the prearranged funeral plan is a revocable trust and that the payor is entitled to receive all or part of the said funds plus all interest and earnings upon his demand upon the bank and his surrender of any pass book evidencing the same.
*236In the instant case, seller has had the purchaser revocably appoint him as his agent to demand and receive the earnings of the trust fund. Seller’s designation of himself as the purchaser’s agent is in direct violation of § 22-4-1, which declares him to be a trustee. Seller cannot comply with the statutory provisions and at the same time act in a dual capacity as both a trustee and agent.1 A seller, within the provisions of Chapter Four, remains at all times a trustee, and regardless of the power of the payor to demand and receive the trust funds, the seller cannot subvert the express provisions of the statutes by inserting a provision in the agreement appointing himself the purchaser’s agent.
The seller, as a trustee, is under a duty to the beneficiary to administer the trust solely in the interest of the beneficiary. The trustee violates his duty to the beneficiary where he uses the trust property for his own purposes.2
However, there is nothing within the statutory scheme that prohibits the seller, as trustee, from receiving compensation for his administration of the trust agreement.3 Although it is definitely within the police power of the legislature to regulate and control prearranged funeral agreements,4 there would be grave constitutional implications if the statute were interpreted as prohibiting the seller, who is engaging in a lawful business, from receiving any compensation for his services. I conclude that it is not violative of the statute for the payor and trustee at the inception of their agreement to provide for compensation to the trustee for the administration of the trust. However, in accordance with the legislative intent to create a fiduciary relationship, the provision providing for compensation for the trustee’s services should be clearly stipulated and understood and not be disguised under an agency relationship. The legislature has not elected to limit this compensation; so it is within the power of the parties to determine the amount.
HENRIOD, Chief Justice (Not participating) :*237I have trouble with the main and concurring opinions’ reasonings and logic and thus take a bye because neither is dead right in this case, — as the litigants respectively say they are.
. See Restatement of the Law of Trusts 2d, § 8, for the distinctions in an agency and trust relationship.
. See Restatement of the Law of Trusts 2d, § 170(1) and Comment 1. Also see §§ 169-185 for the duties of a trustee.
. Restatement of the Law of Trusts 2d § 242, p. 605. “Except as stated in § 243, the trustee is entitled to compensation out of the trust estate for his services as trustee, unless it is otherwise provided by the terms of the trust or un- . less be agrees to forego or waives compensation. * * *
“Comment: f.
If by tlie terms of tlic trust it is provided that the trustee shall receive a certain amount as compensation for his services as trustee, he is ordinarily entitled to that amount and, unless it is otherwise provided, he is ordinarily entitled only to that amount. * * * ”
. See Messerli v. Monarch Memory Gardens, Inc., (1964) Case Nos. 9447, 9448, 88 Idaho 88, 397 P.2d 34, 40, 41.