I respectfully dissent from so much of the opinion of the majority as affirms the action of the trial judge in sustaining the exceptions of the trustees to the findings and recommendations of the master in respect to expenses incurred for bookkeeping, clerk hire, collection commissions and bond premiums. Nor do I subscribe to any notion that the decree of November 15, 1920, constitutes res adjudicata and forecloses the attorney general from challenging those items in this case.
Due to the action of the 1943 legislature in amending the law (R.L.H. 1935, § 3793) in respect to the compensation of trustees and the reimbursement of expenses of administration where the trust created is for charitable purposes,1 I hesitate to express my opinion upon the subjects of disagreement. But I am not satisfied that the *Page 446 statute as now amended relieves trustees of charitable trusts of the duty of personally keeping books of account or of personally performing other clerical services. These matters, in my opinion, are still open and my views upon the subjects of expenses of bookkeeping and clerk hire as applied to the instant case may be of some assistance in the event that the same or similar questions arise under the amendment or the legislature at some future session may see fit to further amend the law so far as it affects the compensation of or allowances to trustees for their care and management of public charitable trusts.
Otherwise I concur in the conclusions of the Chief Justice.
Bookkeeping: The place of business of the trustees is on Kaahumanu Street, Honolulu. At its place of business it maintains a land department and a general office for the transaction of business. The Kamehameha School for Boys and the Kamehameha School for Girls established and maintained pursuant to the provisions of the will of the testatrix are at Kamehameha Heights, Honolulu. The comptroller of the schools has an office on the grounds of the Kamehameha School for Boys where are kept subsidiary books of account reflecting the internal financial administration of the schools. The books of account of the schools reflecting the cost of their establishment and maintenance are kept at the general office. None of the bookkeeping expenses in controversy involves the expense of keeping books of account in the land department or the books of account of the Kamehameha Schools, whether kept at the schools or at the general office of the trustees. The only bookkeeping expenses in controversy are those incurred in the conduct of the business of the trust in the general office of the trustees on Kaahumanu Street.
The expenses of bookkeeping, the surcharging of the *Page 447 trustees with which was recommended by the master, included in whole or in part the salaries of six employees of the general office of the trustees, viz., the office manager, the chief accountant, two bookkeepers, the cashier and office boy when acting as assistant cashier.
The trustees presented to the master a memorandum of the personnel and duties of all employees, including those employed in the keeping of the books of account of the business of the trustees at the general office. This memorandum may be accepted as a fair presentation of the clerical setup obtaining in the general office. The evidence adduced contains explanations of the system of bookkeeping employed. The trustees contend, first, that the books of account were not within the skill and experience of the ordinary trustee, and second, that even if they were within the skill and experience of the ordinary trustee, the expenses of bookkeeping are chargeable against the trust estate for the reasons that (a) from the terms and provisions of the will of the testatrix and other extrinsic facts, it appears that it was not her intention to impose upon the trustees personally the duty to perform clerical services, including that of keeping the books of account of the trust; (b) in the absence of express statutory provisions to the contrary, the trustees are by implication entitled to be reimbursed for all necessary and reasonable expenses incurred in the administration of the trust; (c) the trustees are entitled to an allowance for all such clerical assistance as may be necessary to employees in performing their duties and effecting the purposes of the trust in accordance with the nature and condition of the trust property; and (d) the trustees upon principles of equity are entitled to reimbursement for expenses necessarily incurred in the management of the trust property.
During the periods involved in the accounts under review the law applicable to compensation of trustees was *Page 448 Revised Laws of Hawaii 1935, section 3793, as amended by Session Laws 1935, Act 124, Series C-95.2 The trustees in each of said accounts credited themselves with the statutory commissions.
The construction of the statute in respect to the allowance of the salary of a "bookkeeper" was before this court in Estate ofMary E. Foster, 34 Haw. 417.
In my opinion the issues of law involved in this case with respect to expenses incurred by the trustees for bookkeeping are controlled by the opinion of the court in the Foster case, and the contentions of the trustees urged under 2 (a), (b), (c) and (d) more properly apply to the surcharges in respect to "clerk hire." The trustees have *Page 449 expressed themselves as being in complete accord with the opinion of this court in the Foster case, disagreeing only with the statement there made "That the books of account *Page 450 or the accounts as filed are lengthy is immaterial. The graduated compensation allowable to trustees under the statute takes care of the increased labor"; asserting that this is mere dicta and to the extent that it conflicts with their contentions as set forth in 2 (a) to (d), both inclusive, is erroneous.
For the present we shall consider the questions involved in the light of the tests enunciated in the Foster case. "The solution of this question necessarily depends upon the character of the system reasonably necessary to keep the accounts involved in the instant trust estate and to render annual accounts to the court of the trustees' appointment for under the law accordingly as they were beyond or within the skill and experience that might be *Page 451 reasonably expected of the ordinary trustee, the trustees are or are not entitled to reimbursement."
The evidence overwhelmingly sustains a finding that the system of bookkeeping reasonably necessary under the provisions of the will of the testatrix and the provisions of law prescribing the legal duties of trustees is a simple double-entry set of books containing a simple segregation of corpus and income, the former to contain the further segregation of "cash principal" as that term is used in Revised Laws of Hawaii 1935, section 3793, as amended, and "final payment" as that term is employed in said section and as construed by this court in the case of Smith v.Lymer, 29 Haw. 169.
What system of bookkeeping is reasonably necessary to the observance by the trustees of their legal duties to keep full and accurate accounts is not a mere matter of discretion, with the exercise of which by the trustees, equity will not interfere. On the contrary, where trustees claim the right to reimbursement of the salaries paid accountants upon the ground that the services performed by them are beyond the skill and experience ordinarily possessed by trustees, the burden rests upon the trustees to show that the necessary premise exists for the assertion of the right to reimbursement, to wit, a trust estate, the keeping of the accounts of which reasonably and necessarily include the bookkeeping complications and difficulties for the handling of which the accountants were employed. To make discretion of the trustees the sole test of the necessity of the system of bookkeeping required would substitute the discretion of trustees for that which was reasonably necessary under the facts.
I say a double-entry set of books for the reason that it is undisputed that a double-entry set of books is a system of bookkeeping uniformly employed in the Territory in business concerns of any size. And I say a simple segregation *Page 452 of corpus and income because the provisions of the statute in respect to the computation of the compensation of trustees admit of a simple segregation, one that the trustees themselves could intelligently apply and the court to which the accounts are presented could easily understand.
By the thirteenth paragraph of her will, hereinafter quoted, the testatrix, after devising and bequeathing unto her trustees all the rest, residue and remainder of her estate upon trusts, among others, to erect and maintain the schools to be known as the Kamehameha Schools, directed that her trustees should annually make a full and complete report of all receipts and expenditures to the chief justice of the supreme court or other higher judicial officer in the country, and also to be filed before him annually an inventory of the property in their hands and how invested. Under existing law the circuit judge, at chambers, is the court to which such annual report must be made. This provision of the will of the testatrix is complete and comprehensive and no doubt includes all the statutory duties in respect to annual accounting required by the Revised Laws of Hawaii 1935, section 4713, as amended. If these requirements exceed the requirements of the statute it is immaterial. They must be obeyed. Moreover, the will of the testatrix created a perpetual public charity, the beneficiaries of which, through the appropriate officer of the Territory, are entitled at all times to the information which regular and accurate accounts afford.
The assets of the Bishop Estate are mainly lands vested in the trustees in fee simple. In the aggregate they exceed eighty-five per cent of the value of all the assets of the trust. The principal business of the Bishop Estate is the rental of lands, the fee of which is in the trustees. Its average annual income derived from that source exceeds ninety-two per cent. Rentals, except where value of the *Page 453 use is computed upon produce, are based upon the value of the fee, plus territorial real property taxes. Its remaining assets are bonds, mortgages, notes, stocks and certificates of deposit. The character of its assets and income admits of simple books of account.
The system of bookkeeping employed in the general office of the Bishop Estate embraces the principles of the system usually referred to as a double-entry system. This system of bookkeeping is too well and generally known to require comment.
The only books included in the set of books kept in the general office of the Bishop Estate other or in addition to those ordinarily included in a double-entry set of books are tenants' cards, reflecting tenants' debits and credits on account of rents and real property taxes, and a tenants' journal. The tenants' cards and tenants' journal are merely convenient substitutes for the usual and customary general ledger and journal.
The only accountancy imposed upon the trustees other than, or in addition to, that usually involved in the keeping of a double-entry set of books is the duplication, for the purposes of its annual report to the court, of receipts and vouchers of book entries of cash receipts and disbursements, the preparation in inventory form of its assets, and conformation to the segregations effected by the auditor in 1931 of capital assets into corpus and income accounts and the segregation of both accounts into respective subsidiary accounts.
What skill and experience in bookkeeping might be expected of the ordinary trustee was not decided in the Foster case,supra. The question of the bookkeeping qualifications of the hypothetical trustee was left open. But the test remains.
To determine what skill and experience in bookkeeping may be expected from the ordinary trustee, it is legitimate *Page 454 to consider the types and sizes of estates reasonably admitting of the creation of trusts, the ordinary legal duties of trustees, the educational facilities provided by the public schools of the Territory, including instruction in bookkeeping, and the education and business experience of the average member of the class from which trustees are selected.
A private trust necessarily implies the conservation of the assets of the trustor for a determined period within the limitations imposed by law and its use during that period for the benefit of the cestuis. Experience and observation tell us that the assets of an estate to admit of its creation into a trust should be substantial. In the absence of an estate of substantial size, the purposes of the trust may prove abortive. This is peculiarly so in the case of charitable trusts. The usual routine in the case of charitable trusts is to preserve and conserve the endowment and to devote income only to the purposes of the charity.
The duties imposed by law upon trustees are important considerations in determining the general qualifications of the class from which they are selected, and the qualifications of a trustee are tested by reference not to the degree of care and prudence which he uses in the management of his own private affairs but by the average standards of the ordinary trustee.3 A person is not qualified to act as a trustee who does not possess the skill in and knowledge of the art of bookkeeping possessed by the ordinary trustee.
But how much skill in and knowledge of the art of bookkeeping is possessed by the ordinary trustee? Although the trustees contend that the books of account of the trust are not simple but on the contrary are complicated and beyond the skill and experience of the ordinary trustee, no effort was made by them to establish any *Page 455 standard. And the burden rested upon them to establish that standard. It was not sufficient for them to show if they could that the books of account of the estate were complicated but also that they were beyond the skill and experience possessed by the ordinary trustee. And in the absence of such additional proof their contention in that regard has no basis for its support.
It might be said that the qualifications of the ordinary trustee are a matter of common knowledge and the establishment of a standard is within the exclusive province of the trier of the facts similarly as the qualifications of the hypothetically careful and prudent man. If this be so, from a careful analysis of the system of bookkeeping employed, I am convinced that the books of account of the trust did not require skill and experience beyond what might be expected of the ordinary trustee.
It is a matter of common knowledge that the education of the average youth of the Territory of Hawaii includes a high school education and that instruction in elementary bookkeeping is included in the curricula of all high schools in the Territory. It is also a matter of common knowledge that the members of the class from which trustees are selected are usually men who have had considerable business experience succeeding the completion of their school education. Experience and observation teach us that most trustees are connected with big business either directly or indirectly and have a working knowledge of double entry bookkeeping. It, therefore, may be said that the average member of the class from which trustees are selected in the Territory of Hawaii has had at least a high school education or its equivalent, including instruction in elementary bookkeeping, followed by considerable business experience including experience in keeping or supervising the keeping of a double-entry set of books, and from education or experience, or both, is qualified to keep a simple double-entry set of books. *Page 456
The system of bookkeeping employed in the general office of the Bishop Estate is simple. Due to the source of the greater portion of its income and the character of its assets there is no great variety of transactions. The number of subsidiary accounts presents no problem. If subsidiary accounts are multiplied, the system of bookkeeping of which they are a part is not changed. "Subsidiary accounts may be doubled or some omitted and the system would remain the same. It is merely a difference of degree." The volume of entries is not sufficient to complicate matters. No complexities are involved with the possible exception of conformation to the segregation of corpus and income accounts initiated by the auditor in 1931 and of the afterclosing journal entries made consistently therewith preparatory to striking a final trial balance at the close of the fiscal year. It is well within the definition and concept of the term "double entry system."
The complexities allegedly involved in the journal entries pertaining to the segregation accounts are more fanciful than real. They are nothing more than a repetition of the same entries made each year pursuant to the instruction of the auditor in 1931. These accounts were set up by him and the necessary journal entries made by him as of June 30, 1930, and the same segregation has been persisted in ever since. As suggested by the auditor in his report that they might be, these segregations were "used as a guide for final adjustment purposes in subsequent years" including June 30, 1938 and June 30, 1939. He advised, "With the appropriation accounts showing the divisions and subdivisions of the Estate capital set up and in working order, annual adjustments to give effect, in summary form in these appropriation accounts, to the changes in the asset groups during the year, will cover all the requirements." His lead was simply followed. As observed by this same auditor, as a witness called on behalf *Page 457 of the trustees, bookkeeping is principally a matter of repetition. Moreover, a segregation of corpus into corpus realized and unrealized, and the further segregation of those accounts into corpus appropriated for Kamehameha School grounds or for Kamehameha School fixed assets becomes important only as it might assist in the computation of trustees' commissions. One of the reasons assigned for the inauguration of the accounts segregating capital assets was to segregate surplus income and unappropriated income, the former account being again subdivided into appropriations for Kamehameha School fixed assets and appropriations for other fixed assets. Appropriations of income have nothing to do with the computation of trustees' commissions and if devised for that purpose upon the authority of Bishop v.Kemp, 35 Haw. 1, were misconceived. It is doubtful whether any useful purpose is served by the ability to ascertain from the books whether appropriated surplus income had been appropriated for desks at Kamehameha Schools or for an automobile, except as appropriations might constitute final payments.
The contention that these segregation accounts rendered the books of account of the trust complicated and beyond the skill and experience of the ordinary trustee presents an amusing nonsequitur. The trustees of the Bishop Estate, as far as the record discloses, possess no greater bookkeeping skill and experience than that possessed by the ordinary trustee and yet the segregation accounts were installed pursuant to their instruction for the primary purpose of the computation of their commissions. It affirmatively appears from the report of the auditor who installed the segregation accounts that these accounts were not installed by him to meet the exigencies reasonably and necessarily arising from keeping accurate books of account of the trust but in compliance with the *Page 458 instructions of the trustees themselves. If the system of segregation is as contended and the making of journal entries in conformity thereto not within the skill and experience of the ordinary trustee, it is a matter of conjecture why the present system of segregation should have been installed at all, its main purpose being to assist the trustees in computing their commissions; and the trustees themselves protest that the system is not within the skill and experience of the ordinary trustee.
There is no evidence in the record showing or tending to show that in order to comply with the bookkeeping task imposed upon them it was reasonably necessary for the trustees to segregate capital assets and surplus income to the extent required by the elaborate system set up. Further than segregating corpus so that statutory commissions on corpus and final payments might be computed, the system does not seem to serve any useful purpose. It also appears that the same information is otherwise readily available.
Moreover, even if it were conceded that the journal entries in respect to the segregation accounts presented complications beyond the skill and experience of the ordinary trustee, the presence of this element of complication would not render all the books complicated and beyond the skill and experience of the ordinary trustee. The expense that might be involved in having the journal entries made by others is readily separable from the total bookkeeping expense. Even if upon occasion complications or difficulties in the keeping of accounts may arise and the employment of expert assistance becomes necessary, I see no reason for the continued employment of expert bookkeepers competent to meet such contingencies. The books of account of the trustees are audited quarterly by independent auditors at the cost of the estate. These auditors are certified public accountants. A part of their duties *Page 459 as auditors is to make such corrections in the books and such recommendations as to future conduct as the exigencies in the keeping of the accounts suggest. Before it may be said that expert accountants can be employed continuously by trustees, it must appear that the necessity is continuous. The test is what an ordinarily careful and prudent trustee would do under similar circumstances. It does not appear that those instances upon which, as claimed by the trustees, the bookkeeping task involved exceeded the skill and experience possessed by the ordinary trustee, were sufficiently frequent to justify the employment of expert accountants continuously.
Another instance in the keeping of the books of the trust which the trustees contend is beyond the skill and experience of the ordinary trustee, is the operation of the mechanical bookkeeping machine used in the general office of the trustees. It appears that this machine operates similarly as a typewriter, except that differently from a typewriter the frame and not the carriage moves over the typed page and in consequence more physical exertion is required than is ordinarily necessary in the operation of the typewriter. This machine also includes a mechanical calculator admitting of the entry of balances. Similarly as with a typewriter, duplication is effected in one operation and duplicate entries are made where the same entry may be appropriately entered in the same form in more than one book of account. The absurdity of the contention is obvious. The legal test is whether the system of bookkeeping necessary to keep the accounts of the trust is within or beyond the skill and experience that may be expected of the ordinary trustee and not whether the trustees possess sufficient skill and experience to operate a mechanical labor-saving device used in keeping such books. The entries which the device records are but the simple entries necessary to record the receipt and expenditure of *Page 460 moneys and but a repetition of the same information contained in receipts and vouchers and possess no inherent difficulties or complications. It is the skill and experience required in operating the machine and not the skill and experience involved in the making of the entries against which the trustees protest. If the system of bookkeeping necessary is within the skill and experience that may be reasonably expected of them, then it is the duty of the trustees, within the decision of the Foster case, supra, to personally keep the books of account themselves, and they cannot avoid that duty by the simple expedient of substituting for their own labors a mechanical labor-saving device which they claim is not within their skill and experience to operate.
The trustees complain that under the provisions of the trust created in the instant case there are other and additional duties required of the trustees not present in the ordinary private trust justifying employment of others to perform delegable duties. Duality of duties may be said to exist. Ordinarily, the trustee of a private trust is concerned merely with the administration of the trust res. The ultimate disposition of the corpus or income devolves upon others. In the instant trust, in addition to the administration of the trust res, the trustees are required to maintain schools. All the actual work of conducting the schools is performed by others at the cost of the estate, but the responsibility therefor rests with the trustees. The duties imposed upon the trustees in respect to the maintenance of the schools, however, are those imposed by the will of the testatrix. The duality of duties imposed by the will upon the trustees does not entitle the trustees to additional compensation.4 The testatrix made no provision *Page 461 for the compensation of her trustees. Consequently they are relegated for their compensation to the provisions of the statute. And the provisions of the statute control. Unless the statute admits of additional compensation for the additional duties imposed, or provides for allowance to the trustees by way of reimbursement of the expense of the performance by others of services which the trustees are required by law to perform themselves, the only agency that may afford relief is the legislature. The courts are powerless in the premises.
Nor does the number of entries in the books of account per se affect the question. No complications appear as a result of the volume of entries. Whether a given set of books are within or beyond the skill and experience of an ordinary trustee is not measured by the number of entries. It is the character of the system employed that controls. It was so held in the Foster case, supra, and the language of the court to which the trustees take exception was not dicta but in response to the contentions advanced by the trustees in that case. The trustees in the Foster case contended, similarly as the trustees here, that the number of entries necessary in keeping the accounts of a trust of the magnitude of the Foster trust should be considered in determining whether the keeping of the accounts was a duty which they should perform themselves or for which they could, at the expense of the estate, employ a bookkeeper. Moreover, the action of the court in amending its opinion in the Foster case in respect to remand does not detract in the slightest particular from the statement of the court. In their motion in that case to amend the opinion, the trustees declared: "That they acquiesce in the ruling of this Honorable Court to the effect that the services of a bookkeeper in keeping the books and preparing the annual account for the year 1935 constitutes duties to be performed by them, and that they are not entitled *Page 462 to reimbursement for the sums paid to a bookkeeper for the performance of such work. That in the annual account under review the items appearing under the designation `bookkeeper's salary,' * * * are payments not only for the actual keeping of the books and the preparation of the annual account but also for the performance of many duties necessary to the proper administration of the trust, which services, your Trustees are advised by counsel, are, notwithstanding the ruling of this Honorable Court relating to the salary of a `bookkeeper,' proper items of expenditure by the Trustees for which they may properly be reimbursed out of the trust estate consistently with the opinion of this Honorable Court." If this were true and the salary of the bookkeeper included services rendered other and in addition to that of bookkeeping, to the reimbursement of which said trustees were legally entitled, obviously the trustees were entitled to make that showing upon remand. Hence, whereas the court in its original opinion had disposed of the case by ordering that "Reimbursement of the appellants was properly denied. The decree appealed from, so far as relates to a monthly salary paid to a `bookkeeper,' is accordingly affirmed," the court amended the opinion by adding after the word "affirmed" the additional words "with leave, however, to the trustees, if they so desire, to amend the accounts filed to include compensation paid by them to the person occupying the position of bookkeeper during the accounting period for services rendered by her other and in addition to that of bookkeeping, to the reimbursement of which said trustees may be legally entitled."
Clerk hire: I deem it unnecessary to detail the items involving clerk hire with which the trustees were surcharged, nor do I deem it necessary to enter into a discussion of the clerical services involved. In my opinion none of the services required skill and experience not possessed *Page 463 by the ordinary trustee. The argument that the operation of a typewriter is beyond the skill and experience of the ordinary trustee may be disposed of similarly as the same contention made in respect to bookkeeping machines.
Whether or not a fiduciary is entitled to reimbursement for clerk hire is determined in my opinion by the same test applied to the expense of keeping the books of account of the trust. The only difference is that, whereas, the test applied in respect to bookkeeping is predicated upon the specific legal duty on the part of the trustees to keep regular and accurate books of account, the same test when applied to the expense of clerical hire is predicated upon the general duties that may be expected of the ordinary trustee in the execution of the trust.5 Of course the same qualification in respect to skill and experience applies to both.
By the thirteenth paragraph of the will of the testatrix, it is provided: "I give, devise and bequeath all of the rest, residue and remainder of my estates real and personal, wherever situated unto the trustees below named * * * to hold upon the following trusts, namely: to erect and maintain in the Hawaiian Islands two schools * * * to be known as, and called the Kamehameha Schools. I direct my trustees to expend such amount as they may deem best * * * in the purchase of suitable premises, the erection of school buildings and in furnishing the same with the necessary and appropriate fixtures, furniture and apparatus. I direct my trustees to invest the remainder of my estate in such manner as they may think best, and to expend the annual income in the maintenance of said schools; meaning thereby the salaries of teachers, the repairing of buildings and other incidental expenses * * *." By the seventeenth article of the first codicil to the will *Page 464 of the testatrix, it is provided: "I give unto the trustees named in my will the most ample power to sell and dispose of any lands or other portion of my estate, and to exchange lands and otherwise dispose of the same; and to purchase land, and to take leases of land whenever they think it expedient, and generally to make such investments as they consider best; but I direct that my said trustees shall not purchase land for said schools, if any lands come into their possession under my will, which in their opinion may be suitable for such purpose; and I further direct that my said trustees shall not sell any real estate, cattle, ranches, or other property, but to continue and manage the same, unless in their opinion the sale may be necessary for the establishment or maintenance of said schools, or for the best interest of my estate."
The trustees contend that by the language quoted the testatrix intended that the net income of the trust estate, after the payment of all costs and charges of its management, should be made available and be expended for the continued support and maintenance of the schools, and that hence the necessary and reasonable expenses of management, including bookkeeping and clerk hire, are proper charges against the gross income of the estate.
The word "income" as employed in the will unquestionably means net income. But against gross income may be charged only those items of expense which are legally chargeable. The word "maintain" is defined in the will and includes only those expenses incidental to the maintenance of the schools. The meaning of the word "manage" construed in connection with powers granted trustees has a legal significance well-appreciated and understood.6 Neither by the use of the words referred to nor by any of the other terms or provisions of the will may there be attributed to the testatrix an intention to provide *Page 465 a different rule of compensation than that legally applicable to fiduciaries where the instrument creating the trust is silent upon the subject. At the respective times of the execution of the will and codicils of the testatrix, the provisions of section 1281 of the Civil Code of 1859 providing for the fees of executors, administrators and guardians were applied by analogy to trustees.7 Then and since, up to the amendment of 1927, the substantive rule of law obtained that where the instrument creating the trust is silent upon the subject of compensation, the trustee, nevertheless, is entitled to compensation for his services rendered in the execution of the trust, the determination of the amount thereof being committed to the appropriate court having jurisdiction over trusts. It is not unreasonable to assume that the testatrix purposely and intentionally made no provision for the compensation of her trustees, deeming the applicable statutory provisions in that regard to be ample and relying upon their terms to sufficiently recompense her trustees for services to be rendered by them.
Section 1281 of the Civil Code of 1859 contained a provision for the reimbursement of the fiduciaries named therein for their "actual expenses as the judge or court shall deem just and reasonable." The text of the section has been heretofore quoted.8 To what extent fiduciaries under the statute were entitled to reimbursement "for their actual expenses" under the statute need not be decided. As hereafter pointed out, the section has been amended so that the provision for reimbursement of actual expenses was deleted. But it must be also assumed that the testatrix appreciated that the statute applicable to trustees' commissions was subject to legislative amendment and that amendments might be effected upon the instigation *Page 466 of the trustees as well as others. The action of the last legislature is an instance in point.
Considerable evidence was adduced by the trustees to the effect that the original trustees were men of affairs and that it certainly could not have been the intention of the testatrix that they perform the actual clerical work of the administration of the trust. The language of the will is clear and unambiguous and neither artificial rules of construction nor extrinsic evidence can alter its plainly expressed terms and provisions.
The local statute fixing the compensation of fiduciaries issui generis. Its counterpart does not exist elsewhere. Its construction lies in its own terms and provisions construed in the light of its legislative and juridical history.
Not only do the applicable provisions of section 3793 explicitly and implicitly provide that the commissions allowed trustees are by way of compensation in full for all services that are ordinarily performed by trustees in the execution of their trusts but this court has in effect so held in cases where that phase of the construction of the statute has been directly or indirectly involved.
The statute explicitly provides that the "fees and expenses" of trustees be the commissions on principal and income therein provided. Section 3793, as amended, is not one confined to the subject of compensation of or allowances to fiduciaries alone. On the contrary, the statute refers to the costs in probate courts and is subdivided into subdivisions with appropriate headings of the subject matter to which each subdivision refers, viz.: "Schedule." "Fees and expenses of executors, administrators, trustees and guardians"; "Fees of commissioners and appraisers"; and "High sheriff's or sheriff's fees"; and is in pari materia with all of the sections included in chapter 108 upon the subject of costs in the district, circuit and supreme courts and the respective officers thereof, including attorneys, *Page 467 high sheriffs, sheriffs or police officers, executors, administrators, trustees and guardians, and commissioners and appraisers. The headings of these subdivisions are not to be confused with head notes expressing the substance of the subdivision but are an integral part of the subdivision itself. If they were omitted the subdivision would be textually incomplete.
These subdivisions with their respective headings were carried forward from the original Act of 1848 into the several compilations in which, as originally enacted or as subsequently amended, they appear. In the original Act the provision pertaining to compensation and allowances to fiduciaries was headed "Fees of Executors, Administrators and Guardians." This was repeated in the Civil Code of 1859, the Compiled Laws of 1884, the amendatory Act of 1893, the Civil Laws of 1897, and Revised Laws of 1905. But in the compilation of 1915 (§ 2542) the word "expenses" was added to the heading, so as to read: "Fees and expenses of executors, administrators and guardians," and in 1927, when the statute was amended9 to include trustees and to make provision for allowances for special services, the heading appearing in the revision of 1915 was adopted by the legislature and the heading in the amendatory Act reads: "Fees and expenses of executors, administrators, trustees and guardians," and in that form was carried into the succeeding compilation (1935). (Emphasis supplied.) Moreover, the commissions are implicitly by way of compensation for and reimbursement of all services performed by the fiduciary personally or by his agents. The amount of the statutory commissions are fixed and absolute, irrespective of whether services involved in the execution of the trust are arduous or otherwise. The income from a single piece of improved real estate might equal in amount the aggregate income from *Page 468 a great number of less valuable properties, and the labor and expenses involved in the latter far exceed those of the former, yet the commissions are the same. No discretion is reposed in the court to adjust the fees to the risk and trouble involved. The amount of expense to be incurred in the employment of others to do his work is left to the fiduciary. His compensation covers such expense.
As heretofore pointed out, the original statute relative to compensation of executors, administrators and guardians permitted allowances for their actual expenses as deemed just and reasonable by the judge or court having jurisdiction over the accounts. Though, prior to the amendment of 1927, compensation of trustees was upon a quantum meruit, the statute applicable to executors, administrators and guardians was applied to trustees by analogy. The extent to which trustees are entitled to reimbursement for their actual expenses within the meaning of the statutory provision referred to requires no discussion. We may even assume arguendo that by its terms the trustees were not required personally to perform clerical services and that the salaries of clerks were allowable expenses against the estate. But in 1893 the Hawaiian Legislature amended section 1281 of the Civil Code of 185910 by deleting the provision in respect to expenses. Otherwise, the statute remained substantially the same. The fact of deletion indicates a legislative intent to discontinue allowance to trustees of expenses which required express statutory authority for their reimbursement. The legal effect of the deletion was to exclude allowance for the expense of the performance by others of delegable duties which the trustees were required by law to perform themselves.
The construction placed upon the statute by the trustees is the same as though the deletion had not been made. *Page 469 This is contrary to the presumption arising from a legislative amendment of a statute. Presumably the legislature intended to make a change. Of course it could not by the deletion affect the common-law right of a trustee to be reimbursed for expenses necessarily incurred in the administration of the trust, considered as expenses of the trust. While as a general rule, in the absence of express provision to the contrary, a trust estate must bear the expenses of its administration,11 where provision is made for the compensation of a trustee, a trust is not liable for the services of others employed by the trustees to perform services which the trustees are ordinarily expected to perform themselves. The expenses of such services are not expenses incurred in the care, management and settlement of the estate but are the trustees' own expenses. I agree with counsel for the trustees that even in the absence of statutory provision therefor, expenses incurred in the administration of the trust as expenses of the trust are properly chargeable against the trust estate, but the expenses for which trustees are impliedly entitled to reimbursement do not include the trustees' own expenses for the performance by others of services which they should personally perform themselves. The Restatement of the Law of Trusts observes the distinction: "The trustee can properly incur expenses which are necessary or appropriate for performing his duties as trustee. Thus, he can properly incur expenses necessary or appropriate to get in the trust property, or to preserve it, or to make the trust property productive, or to perform any other duties which he may have as trustee." Restatement, Trusts § 188, p. 491, Comment a. "The trustee can properly incur expenses in employing attorneys, brokers or other agents or servants so far as such employment is reasonably necessary in the *Page 470 administration of the trust. He cannot properly incur expenses, however, in employing agents to do acts which the trustee ought personally to perform, as where it would be an improper delegation of his duties or powers to act through an agent, * * * or where although it would not be an improper delegation to employ an agent yet the service of the agent is one which is covered by the trustee's compensation." Restatement, Trusts § 188, p. 492, Comment c.
In my opinion the reasons advanced by the trustees why they should not be required to perform any greater services than are usually performed by the directors of a mercantile establishment might be material where the statute fixing their compensation expressly allows reimbursement, but it has no application in a statute such as ours which is not alone silent upon the subject of the allowance of expenses but is the result of the amendment of a pre-existing statute which expressly made such allowance.
An additional reason for the conclusion here reached is the amendment of 1927. In addition to making the statute applicable to trustees eo nomine, it was further amended by the legislature of that year to provide "such further allowances may be made as the court shall deem just and reasonable for special services." Otherwise the statute, as amended by chapter 98 of the Laws of 1893, remained substantially the same except for an amendment made in 1909, which is immaterial to our consideration. This is the first time that any mention is made of special services. The implication that the statutory rates of commission covered all ordinary services is obvious. Additional allowances for special services by trustees had been recognized by the courts prior to the amendment. But the amendment furnishes the key to the intention of the legislature regarding the character of the services for *Page 471 which the regular commissions were allowed. The only logical conclusion to be drawn from the terms and provisions of the statute fixing the compensation of trustees, construed in the light of its legislative history, is that the legislature intended that the fixed commissions allowed should be by way of full compensation for all services within the skill and experience of the ordinary trustee, reasonably necessary in the execution of the trust, and that the extent to which others should be employed to perform those duties which the trustee should personally perform himself lay with each individual trustee accordingly as he was willing or unwilling to absorb the expense of such outside employment.
The juridical history of the statute is also conformative. This court has construed the statute as requiring the fiduciary to perform all services reasonably necessary in the execution of the trust and not beyond the skill and experience possessed by the ordinary trustee.
In Estate of A. Enos, 18 Haw. 542, 549 (1908), this court said: "The amount paid for clerical assistance to the administrators was for making up their accounts, examining account books and reporting on an income tax statement.12 Recognizing that under certain circumstances clerical assistance13 for an administrator may be necessary and should be paid for by the estate, still the ordinary clerical work14 must be performed, or paid for, by the administrator himself. One who becomes an administrator must perform the ordinary work of such or else decline to be appointed."
In Estate of Wichman, 27 Haw. 780, 784 (1924), this court said: "when a trustee who is also an attorney performs *Page 472 necessary professional services on behalf of and for the benefit of the estate he is allowed reasonable compensation therefor in addition to the statutory commissions. The theory upon which such additional compensation is allowed is that the service is aspecial or extraordinary one and is in addition to the serviceusually expected of the ordinarily careful and prudent trustee for which the trustee should receive extra compensation." (Emphasis supplied.) This language was quoted with approval inSmith v. Lymer, supra, at 177 (1926). While it is true that in Estate of Mary E. Foster, 34 Haw. 376, this court considered what might be expected of the ordinary trustee from the standpoint of his specific common-law and statutory duties to keep regular and accurate books of account, the principle of law enunciated applies equally to clerk hire.
This court has always recognized the inherent right of a fiduciary to be reimbursed, in conserving the property of the estate,15 for counsel fees and costs in bills for instructions or similar suits,16 and counsel fees as between solicitor and client.17
The trustees take the further position that although our statute is silent upon the allowance to trustees for their reasonable expenses necessarily incurred in the administration of the trust, such provision is implied, and insist that due to the size of the business of the trust, the number of its accounts, the details involved, the volume of nondelegable duties, their own personal interests and present occupations, and the necessity of their also acting as trustees of the Bishop Museum Trust and the C.R. Bishop Trust, it is a physical impossibility for them, in addition *Page 473 to their other work, personally to keep the accounts of the trust.
It might be stated in passing that there is no provision contained in the will of the testatrix that the trustees of her estate must also act as the trustees of the Bishop Museum Trust or the C.R. Bishop Trust. Hence it is immaterial to a consideration of the issues in this case how the present trustees also happen to be the trustees of the Bishop Museum Trust or the C.R. Bishop Trust.
Further, it is immaterial to the issues in this case the extent to which the trustees of the Bishop Estate are diverted from the performance of those duties which they are required personally to perform, by other interests or other occupations.
Nor are the size of the business of the trust estate, the number of its accounts, the details involved, or the volume of nondelegable duties material if, as I believe, the compensation fixed by the statute is intended as compensation in full for all services, except special services, reasonably necessary in the administration of the trust estate and within the skill and experience of the ordinary trustee. The extent of the expense necessary for clerical services is entirely optional with the trustees accordingly as they decide to perform their delegable duties themselves or have them performed by others at their personal expense.
The provisions of the local statute allowing compensation to fiduciaries fix the amount absolutely upon a percentage basis, leaving no discretion to the court. It contains no provision allowing fiduciaries their necessary expenses in the care, management and settlement of the estate. While, as said before, the absence of such a provision does not necessarily mean that fiduciaries are not entitled to their necessary expenses in the care, management and settlement of the estate as such, it does not mean that the expenses of administration include expenses incurred *Page 474 in the employment of others to perform services which the fiduciary should perform himself. In other words, conceding the inherent right in the fiduciary to reimbursement for expenses incurred in the care, management and settlement of his estate as such, he is not entitled to reimbursement for clerical services which he is expected to perform himself and for which the statute allows him a fixed compensation.
Very little need be said upon the contention of the trustees that they are entitled to reimbursement for expenses necessarily incurred in the management of the trust property upon principles of equity. There is no principle of equity of which I am aware that may be invoked to enlarge the provisions of a statute to include that which, from its terms, is legally excluded.
In Estate of F. Molteno, 3 Haw. 288, an effort was made by the fiduciary to enlarge the scope of the provisions of section 1281 of the Civil Code of 1859 by including within the term "moneys" as used in the statute specific chattels transferred in kind. Mr. Justice Hartwell, in his concurring opinion, held that the court could not authorize anything to be paid the fiduciary beyond the sums fixed by the statute; that whatever policy might be best, it was for the legislature only to say and that the court should interpret the statute literally.
In construing the statute of Missouri which, similarly as our local statute, fixes the compensation of fiduciaries, the court in Matson May v. Pearson, 121 Mo. App. 120, 97 S.W. 983, 990, had this to say: "Now, it is the well-settled rule with us that compensation of administrators and executors is not a matter within the discretion of the courts, but, on the contrary, is a matter fixed by the statute * * *, it is obvious that the statute with respect to the subject of commissions is to be strictly construed for the benefit and in the interest of the estate and that no *Page 475 commissions are to be allowed * * * except they are earned within the spirit or letter of the statute."
A great deal of loose language is found to the effect that trustees are entitled to reimbursement of their necessary and reasonable expenses incurred in the administration of the trust as though necessity were the sole test of the right of reimbursement. The authorities cited, however, to support such statements depend for their rationale upon the statutes locally applicable.
Many cases were cited by the trustees containing language apparently supporting their contentions. These cases, however, are of little or no value, analyzed in the light of the respective statutes obtaining in the States from which they emanate. All of the State statutes to which I have had access, with the exception of those of Connecticut, Delaware, New Hampshire, Mississippi, Pennsylvania and South Carolina, where no general statutory provision for allowance of expenses exists, contain provisions more or less similar in form allowing fiduciaries their necessary expenses in the care, management and settlement of the estate.18 *Page 476
In each instance, however, where the statute allows expenses in the care, management and settlement of the *Page 477 estate, there is, except in the States of Ohio and Vermont, an accompanying provision either in the same or in another statutein pari materia containing express provisions for the compensation of fiduciaries for their services as such.
The statutes of other jurisdictions dealing with the compensation of trustees may be grouped into two general categories: those fixing the amount absolutely, usually upon a percentage basis and reposing no discretion in the court, and those where the amount of compensation is entirely within the discretion of the court, with or without limitation as to the maximum. And as the amount of compensation is fixed and absolute on the one hand or in the sole discretion of the court on the other, whether with or without limitation, the statutes allowing expenses for the care, management and settlement of the estate are construed accordingly.
In the State of New York the compensation of fiduciaries is fixed absolutely, computed upon a percentage basis, leaving no discretion in the court.19 In that State the courts, while adhering to the general rule applicable to allowance of expenses, have construed the statute in that regard as entitling fiduciaries to reimbursement of the expense of clerical help, including bookkeepers, where *Page 478 under the peculiar circumstances involved such clerical assistance becomes necessary.20 The citations given include those cases cited by the trustees. *Page 479
Cases cited by the trustees construing statutes similar to the New York statute are to the same effect.21
On the other hand in New Jersey compensation of fiduciaries is in the discretion of the court having jurisdiction of their accounts, within statutory maximum limits.22 *Page 480 Courts of that State indulge in considerable latitude in the allowance of expenses for clerical assistance. This indulgence is exercised apparently upon the theory that to the extent that expenses are for services which the fiduciary should perform himself, his compensation is correspondingly decreased.23 The cases from New Jersey cited by the trustees are illustrative.24 *Page 481
Cases cited by the trustees construing statutory provisions allowing fiduciaries their expenses in the care, management and settlement of the estate where the accompanying statute allowing compensation commits the amount to the discretion of the appropriate court with or without limitation, apparently follow the same theory as adopted by the courts of New Jersey, construed in the light of the decisions in Dey v. Codman, Babbitt v.Fidelity Trust Co., Metcalfe v. Colles, and Lyon v. Bird, all cited supra note 23.25
In Connecticut, Delaware, New Hampshire and Pennsylvania, where no statutory provision exists for compensation of fiduciaries, or reimbursement for their expenses incurred in the care, management and settlement of estates, compensation is allowed by the respective courts having jurisdiction of settlement of the estate accounts under their inherent equitable powers and the amount of compensation is based upon the reasonable value of the services rendered, including expenses in the care, management and settlement of the estate.26 No case has been called to our attention and personal research has failed to develop any case from those States where fiduciaries have been allowed expenses for bookkeeping or clerk hire. *Page 482
All of the courts of the States referred to observe the distinction between ordinary services which a fiduciary is expected to perform himself and the services which are beyond the skill and experience possessed by the ordinary fiduciary.27
1 "Section 1. Section 3793 of the Revised Laws of Hawaii 1935, as amended, is hereby further amended by inserting therein, following the first full paragraph thereof appearing on page 621 of said Revised Laws, the following paragraph:
"`Notwithstanding any other provisions of this section or of any other law, in the case of an estate of a charitable trust, the commissions of the trustees shall be limited to the following schedule of percentages on all moneys received in the nature of revenue or income of the estate, such as rents, interests, and general profits:
10% on the first ________________________ $ 1,000.00 7% on the next ________________________ 4,000.00 5% on the next ________________________ 100,000.00 3% on the next ________________________ 100,000.00 2% on the next ________________________ 300,000.00 1% on all over _________________________ 505,000.00;
but said schedule of percentages shall be applied not oftener than once a year.
"`Such trustees shall also be entitled to just and reasonable allowances for bookkeeping, clerical, and special services and expenses incidental thereto.'
"Section 2. This Act shall apply as well to future accounting in existing estates as to new estates.
"Section 3. This Act shall take effect upon its approval." Sess. Laws 1943, Act 149.
2 The original statute of Hawaii allowing compensation to fiduciaries is the Act of June 2, 1848, entitled "An Act to Regulate the Costs in the Judiciary Department." (Laws 1848, pp. 4, 9.) It is there provided:
"Fees of Executors, Administrators and Guardians. — For receiving and paying out all sums of money not exceeding one thousand dollars, ten cents for every dollar.
"For receiving and paying out all sums of money exceeding one thousand dollars and not amounting to five thousand dollars, seven cents for every dollar.
"For receiving and paying out all sums exceeding five thousand dollars, five cents for every dollar;
"And in all cases, such allowance shall be made for theiractual expenses, as to the judge shall appear just andreasonable.
"Where any provision shall be made by any will for a specific compensation to an executor, the same shall be deemed a full satisfaction for his services in lieu of his allowance as aforesaid, or his share thereof; unless such executor shall by a written instrument, to be filed with the Judge of Probate, renounce all claim to such specific compensation." (Emphasis supplied.)
These provisions of the original Act were incorporated in section 1281 of the Civil Code of 1859 in the following language:
"Fees of Executors, Administrators and Guardians: — For receiving and paying out moneys, ten cents for every dollar up to and not exceeding one thousand dollars; seven cents for every dollar over one thousand, up to and not exceeding five thousand dollars; five cents for every dollar over five thousand dollars; and such additional allowance for their actual expenses as thejudge or court shall deem just and reasonable. [Remainder the same.]" (Emphasis supplied.)
Section 1281 of the Civil Code of 1859 was incorporated in the Compiled Laws of 1884 under the same section number. On January 11, 1893, section 1281 of the Civil Code relating to the fees of executors, administrators and guardians was amended by chapter 98 of the Session Laws of that year. (Laws 1893, c. 98, p. 280.) By the amendment of 1893, instead of the commissions of fiduciaries named being computed upon "moneys received and paid out," commissions were computed upon "all moneys received and accounted for" by them and moneys received and accounted for were segregated into "all moneys received representing the estate at 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," upon which a commission of two and one-half per cent was allowed, and "all moneys received in the nature of revenue or income of the estate, such as rents, interest and general profits," upon which the commissions of ten, seven and five per cent were allowed similarly as in the former statute. An additional commission of two and one-half per cent was allowed upon final payment of the former. The effect of the amendment was to increase the compensation of fiduciaries. By the same amendment the previously existing provision for "such additional allowance for their actual expenses as the judge or court shall deem just and reasonable" was omitted.
Section 1281 of the Civil Code as thus amended was carried into the Laws of 1897 as section 1493, into the Revised Laws of 1905 as section 1890, into the Revised Laws of 1915 as section 2542, and as amended by Session Laws 1931, Act 216 (immaterial to our consideration), into the Revised Laws of 1925 as section 2544.
In 1927 the Revised Laws of Hawaii 1925, section 2544, was further amended in respect to the compensation paid to fiduciaries to read as follows:
"Fees and expenses of executors, administrators, trustees and guardians: Upon all moneys received in the nature of revenue or income of the estate, such as rents, interest and general profits, executors, administrators, trustees and guardians shall be allowed as commissions payable out of the income, ten per cent for the first thousand dollars, seven per cent for the next four thousand dollars, and five per cent for all over five thousand dollars, such commissions to be allowed upon each accounting when made but not oftener than once a year.
"* * *
"Upon the principal of the estate, trustees and guardians shall be allowed as commissions, one per cent on the value at the inception of the trust payable at such inception out of the principal, one per cent on the value of all or any part of the estate upon final distribution thereof payable at such termination out of the principal, and two and one-half per cent upon all cash principal received after the inception of the trust and neither being nor representing principal upon which said two and one-half per cent has previously at any time been charged, payable at such receipt out of the principal, and two and one-half per cent upon the final payment of any cash principal prior to the termination of the trust, payable at said final payment out of the principal. For the purposes of this paragraph, the value of the estate shall be determined in such manner as the court may approve.
"Such further allowances may be made as the court shall deem just and reasonable for special services. All contracts between an executor, administrator, trustee or guardian and an heir, devisee, legatee, ward, or a beneficiary other than the creator of the trust, for higher compensation than is allowed in this section shall be void.
"These provisions shall apply as well to future accounting in existing estates as to new estates."
It should be noted that by the amendment of 1927 trustees were included eo nomine in the enumeration of the fiduciaries to which the statute applied and provision was made for the first time for additional compensation as and for "special services."
This, except for the amendment of 1935 (Sess. Laws 1935, Act 124) which is also immaterial to our consideration, was the condition of the law in respect to the compensation of trustees during the respective accounting periods.
3 Knox v. Mackinnon, 13 L.R. App. Cas. 753, 766, 767 (1888).
4 In re Taft's Estate, 8 N.Y. Supp. 282; In re Larrabee,98 N.J. Eq. 655, 130 A. 194, 197, 198; In re Froelich'sEstate, 107 N.Y. Supp. 173, 179.
5 Estate of McBryde, 8 Haw. 472 (1892).
6 Campbell v. Kawananakoa, 31 Haw. 500.
7 In re Estate of Lunalilo, 13 Haw. 317.
8 Note 2.
9 Sess. Laws 1927, Act 183, § 1.
10 Laws 1893, c. 98, § 1.
11 Meddaugh v. Wilson, 151 U.S. 333; Trustees v.Greenough, 105 U.S. 527.
12 Apparently not within the skill and experience of the ordinary trustee.
13 Same comment.
14 Work within the skill and experience of the ordinary administrator.
15 Estate of James Campbell, 16 Haw. 512, 519 (1905).
16 Estate of S. Kaiu, 17 Haw. 514 (1906); Estate ofBrown, 24 Haw. 573, 577 (1918); Valentin v. Brunette,26 Haw. 498 (1922); Estate of Mary E. Foster, 34 Haw. 376, 389 (1937).
17 Estate of Lalakea, 26 Haw. 243 (1922); Estate ofAfong, 26 Haw. 337 (1922).
18 "All necessary expenses in the care, management and settlement of the estate." 3 Ariz. Code Ann. (1939) § 38-1402; Cal. P. Code (Deering, 1935) § 900; 2 Idaho Comp. Stat. (1919) § 7688; 23 Mich. Stat. Ann. (1938) § 27.3107; 2 Minn. Stat. (Mason, 1927) § 8788; 4 Mont. Rev. Code Ann. (1935) § 10285; Neb. Comp. Stat. (1929) § 30-1410; Nev. L. (1941) c. 107, § 206; 2 N.D. Comp. L. Ann. (1913) § 8821, as am. in Supp. to Comp. L. Ann. (1913-1925) § 8821; 1 Okla. Comp. Stat. Ann. (Bunn, 1921) § 1321; 1 Ore. L. (Olson, 1920) § 1290; 2 S.D. Code (1939) § 35.1603; Vt. Pub. L. (1933) § 2819; 1 Wn. Comp. Stat. (Rem., 1922) § 1526; Wis. Stat. (1941) § 317.08; Wyo. Rev. Stat. Ann. (1931) § 88-2606; "* * * and the court may also allow actual expenses," Ala. Code Ann. (1928) art. 20, § 5923; entitled upon accounting to "credit himself with all sums of money lawfully expended in settling such estate either by the payment of debts or otherwise," Ark. Dig. Stat. (Crawford Moses, 1921) c. 1, § 182; "such additional allowance for cost and charges, in collecting, defending and preserving the estate and disposing of the same, as shall be reasonable," 4 Colo. Stat. Ann. (1935) c. 176, § 232; "all reasonable charges on account of * * * and in the administration of the estate of the person deceased," Fla. Comp. Gen. L. (1927) § 5541; "Among the expenses of administration shall be included * * * the expenses of * * * agents," Ga. Code (1933) § 113-2009; "such additional allowances for costs and charges in collecting and defending the claims of the estate and disposing of the same as shall be reasonable," Ill. Rev. Stat. (Cahill Moore, 1935) c. 3, § 135; "including expenses in the discharge of his duties," 3 Ind. Stat. Ann. (Burns, 1933) § 6-1416; "Such further allowances as are just and reasonable may be made by the court * * * for actual necessary and extraordinary expenses," Iowa Code (1939) c. 509, § 12065; "his necessary expenses incurred in the execution of his trust," Kan. 1941 Supp. to Gen. Stat. (1935) § 59-1717; (re extraordinary services) "expenses incurred in protecting, attending to, collecting and settling such estate," Ky. Stat. Ann. (Carroll, 1930) § 3883; "and trustees may receive yearly such additional sum for the care and management of the trust property as the court having jurisdiction of said trust shall allow," Me. Rev. Stat. (1930) c. 75, § 43; "costs and extraordinary expenses (not personal) which the court may think proper to allow, laid out in the recovery or security of any part of the estate," 2 Md. Ann. Code (Bagby) art. 93, § 5, am. Md. L. (1939) c. 511; "his reasonable expenses incurred in the execution of his trust," 2 Mass. Gen. L. (1932) c. 206, § 16; "court costs," 1 Miss. Code Ann. (Hemenway, 1917) §§ 666-668; "attorney fees," id. § 1799; "all reasonable charges for * * * service, and collecting and preserving the estate," 1 Mo. Rev. Stat. (1939) § 220; "reasonable sum for necessary charges and disbursements in the management of the estate," 1 N.C. Consol. Stat. Ann. (1919) c. 1, § 157, am. N.C.L. (1941) c. 124, p. 207; "over and above their actual expenses," 1 N.J. Rev. Stat. (1937) § 3:11-2, am. L. (1939) c. 134; "just, reasonable and necessary expenses," N.Y. Surr. Ct. Act, L. (1920), c. 928, § 285, am. L. 1921, c. 440, L. 1923, c. 649, L. 1934, c. 892, L. 1936, c. 202, and L. 1938, c. 593; "necessary expenses," N.M. Stat. Ann. (1929, comp.) § 47-702; "just and necessary expenses," 2 Ohio Gen. Code Ann. (Page, 1926) § 10830; "all reasonable and proper charges * * * made by them * * * in the execution of their trust," R.I. Gen. L. (1938) c. 580, § 6; "such disbursements as he [fiduciary] supports by lawful vouchers," Tenn. Code (1932) § 8250; "all reasonable expenses necessarily incurred by them in the preservation, safe-keeping and management of the estate," 9 Texas Rev. Civ. Stat. Ann. (Vernon, 1925) art. 3691; "his proper expenses," Utah Rev. Stat. Ann. (1933) § 102-11-24 (trustees § 102-12-32); "any reasonable expenses incurred by him as such," Va. Code Ann. (1924) § 5425; W. Va. Code Ann. (Barnes, 1923) c. 87, § 17.
19 This is also true in 3 Ariz. Code Ann. (1939) § 38-1404 (different rule for trustees, id. § 38-1510); Cal. P. Code (Deering, 1935) § 901; Ga. Code (1933) § 113-2001; 2 Idaho Comp. Stat. (1919) § 7690; 23 Mich. Stats. Ann. (1938) § 27.3107; 1 Mo. Rev. Stat. (1939) § 220; 4 Mont. Rev. Code Ann. (1935) § 10287; Neb. Comp. Stat. (1929) § 30-1411, am. Neb. L. (1939) c. 31, p. 166; Nev. L. (1941) c. 107, § 207; N.M. Stat. Ann. (1929 comp.) § 47-701; 2 N.D. Comp. L. Ann. (1913) § 8822; 1 Okla. Stat. Ann. (Bunn's comp., 1921) § 1323; 1 Ore. L. (Olson, 1920) § 1292; 3 S.C. Code of L. (1932) §§ 9017, 9048; 2 S.D. Code (1939) § 35.1603; 9 Texas Rev. Civ. Stats. Ann. (Vernon, 1925) art. 3689; Utah Rev. Stat. (1933) § 102-11-25 (compensation of trustees in discretion of court); Wis. Stat. (1941) § 317.08; and Wyo. Rev. Stat. Ann. (1931) § 88-2607.
20 The Laws of New York (1817, p. 292) quoted In the Matterof Roberts, a Lunatic, 3 Johns. Ch. 42 (1817), consolidated in II Rev. Stat. N.Y. (1836, 2d ed.) pt. II, c. 6, tit. III, art. 3, § 58, allowed fiduciaries compensation computed at fixed rates upon the moneys of the estate received and paid out "over and above their expenses." By the Surrogate's Act of 1920, citedsupra note 18, as originally enacted and as subsequently amended, the compensation allowed fiduciaries was in addition to their "just, reasonable and necessary expenses." These statutes have been construed as authorizing a fiduciary to employ a clerk or agent. Lent et al. v. Howard et al., 89 N.Y. 169 (1882); a rent collector, Wells v. Disbrow, 20 N.Y. Supp. 518 (1892);In re Binghampton Trust Co., 83 N.Y. Supp. 1068 (1903);Garvey v. Owens, 12 N.Y. Supp. 349 (1890); a bookkeeper,Merritt v. Merritt, 53 N.Y. Supp. 127 (1898); an accountant,Matter of Chapal, 269 N.Y. 464, 199 N.E. 762 (1936); a stenographer, In re Hammer, 160 N.Y. Supp. 191 (1916); a manager of an apartment house, In re Grunhut's Will, 277 N.Y. Supp. 454 (1935); and entitling fiduciaries to reimbursement for traveling expenses, In re M'Dowell, 163 N.Y. Supp. 164 (1916);In re Rohr's Estate, 260 N.Y. Supp. 181 (1932). But the general rule in New York is that "administrators, executors, and trustees are not only bound to assume the responsibilities and exercise the discretions of their office, but must also perform within reasonable limits, the actual manual labor requisite to the due execution of the trust." In re Harbeck, 30 N.Y. Supp. 521 (1894). "Personally perform, or at his own expense provide for the performance of all clerical duties incident to the administration." In re Hammer, supra; see also In re M'Dowell,supra. The rationale of all the cases cited is that the employment of additional assistance is necessary under the peculiar circumstances obtaining in each individual case. For instance, the employment of a clerk or agent "when from the peculiar nature and situation of the property, the services of a clerk or agent are necessary." Lent et al. v. Howard et al.,supra. The employment of a rent collector where the same is not "shown to be either wasteful or extravagant, in view of the character of the property," Wells v. Disbrow, supra; the employment of a bookkeeper where the "testamentary scheme of distribution involves the keeping of numerous complicated accounts, extending over a considerable period," Merritt v.Merritt, supra, but the employment of an accountant to write up and audit books disallowed where the entries were few in number,In re Harbeck, supra. Necessity is also governed by the ability of the trustee. "Undoubtedly there are many instances where the necessary expense of employing clerks and bookkeepers should be allowed * * *. Indeed, the courts have been careful not to insist that so much clerical work should be either personally performed by an administrator, * * * or paid for by him, as to make the acceptance of such a position impossible without considerable personal loss. Care has also been observed to limit the authorization of such expenditures * * * to cases where employment of assistance seems a matter of necessity, and not to so extend it as to create the impression that the only duty which the law devolves upon such an officer is to employ persons to perform all the various duties necessary to the conduct of the trust undertaken. * * * It is true that the * * * trustees are men of large affairs, and accustomed to employ men to keep their books * * *. But their practice in such respect cannot be accepted as the guide for the court. The fact that they are busy men, and have not as much time to give to the management of estates as other individuals, cannot be permitted to affect the legal rule, * * * touching the propriety or legality of the expenditure * * *." In re Harbeck, supra; see also In reOgden's Estate, 83 N.Y. Supp. 977. "The general rule is that an administrator must personally perform, or at his own expense provide for the performance of, all clerical duties incident to the administration." People v. Prendergast, 152 N.Y. Supp. 938, aff'd 217 N.Y. 604, 111 N.E. 1096. Trustees are not entitled to extra compensation for running a business. In rePopp, 107 N.Y. Supp. 277; In re Hopson's Will, 211 N.Y. Supp. 128; In re Gorra's Will, 236 N.Y. Supp. 709; In re Kempf'sEstate, 104 N.Y. Supp. 585. The allowance of traveling expenses where the property from which the income is collected is at a distance from the home or place of business of the fiduciary. Inre Rohr's Estate, supra.
21 Allowing expenses in the operation of a farm by the trustee including services performed, boarding help, raising and harvesting a crop of hops, Ranzau v. Davis, 85 Ore. 26, 165 P. 1180; expenses allowed, including traveling expenses, taxi hire, commissions on sales of real estate and collection of ordinary and farm rent, Stewart v. Baxter, 145 Ore. 460,28 P.2d 642; counsel fees, Vanderbilt University v. Mitchell,162 Tenn. 217, 36 S.W.2d 83, 86; charge of agent for collection of rents, Estate of Whitney, 78 Cal. App. 638,248 P. 754, 758; traveling expenses and bookkeeping, Wise v.Cutchall, 41 P.2d 864 (Okla.); traveling expenses, Holland v. Doke, 135 Ark. 372, 376.
22 The same is true in Ala. Code Ann. (1928) art. 20, § 5923; Ark. Dig. Stat. (Crawford Moses, 1921) c. 1, § 183; 4 Colo. Stat. Ann. (1935) c. 176, § 232; Fla. Comp. Gen. L. (1927) § 5541; Ill. Rev. Stat. (Cahill Moore, 1935) c. 3, § 135, re trustees c. 148, § 35; 3 Ind. Stat. Ann. (Burns, 1933) § 6-1416; Iowa Code (1939) c. 509, § 12063; Kan. 1941 Supp. to Gen. Stat. (1935) § 59-1717; Ky. Stat. Ann. (Carroll, 1930) § 3883; Me. Rev. Stat. (1930) c. 75, § 43; 2 Md. Code (Bagby) art. 93, § 5, am. Md. L. (1939) c. 511; 2 Mass. Gen. L. (1932) c. 206, § 16; 2 Minn. Stat. (Mason, 1927) § 8788; 1 Miss. Code Ann. (Hemenway, 1917) § 1798; 1 N.C. Consol. Stat. Ann. (1919) c. 1, § 157, am. N.C.L. (1941) c. 124, p. 207; 2 Ohio Gen. Code Ann. (Page, 1926) § 11034; R.I. Gen. L. (1938) c. 580, § 7; Tenn. Code (Williams, 1932) § 8250; Va. Code (1924) § 5425; 1 Wn. Comp. Stat. (Rem., 1922) § 1528; and W. Va. Code Ann. (1923) c. 87, § 17.
23 Dey v. Codman, 39 N.J. Eq. 258, 265; Babbitt v.Fidelity Trust Co., 72 N.J. Eq. 745, 66 A. 1076, 1079;Metcalfe v. Colles, 43 N.J. Eq. 148, 10 A. 804, 807; Lyon v. Bird, 79 N.J. Eq. 157, 80 A. 450, 452.
24 Agents, collectors, accountants and other persons properly employed in similar affairs. Parker v. Johnson, 37 N.J. Eq. 366, 367 (cited in 2 Scott, Trusts § 188.3, p. 1004, n. 1). Commissions for collection of rents. In re van Riper's Estate, 107 A. 55 (N.J.). Expenses of keeping estate's accounts and records, maintaining office and railroad fares traveling between office and home. In re Linn, 124 N.J. Eq. 65, 199 A. 396. The case of Hagedorn v. Arens, 106 N.J. Eq. 377, 150 A. 4 (cited in 2 Scott, Trusts § 244, p. 1407, n. 8, see § 188.3, n. 1), involved counsel fees in connection with apportionment of stock dividends between remaindermen and life tenants and apportioning payments and expert advice in making income tax returns. In re Megargee, 117 N.J. Eq. 347, 175 A. 808, counsel fees; Babbitt v. Fidelity Trust Co., 72 N.J. Eq. 745, 66 A. 1076, cited supra note 23 at 1079, commissions on sales of real estate, attorneys fees and court costs on bill for instructions; Brown v. Brown, 72 N.J. Eq. 667, 65 A. 739, commissions upon sale of real estate. None of these cases is pertinent upon this point. The case of Hayes v. AtlanticCity, 151 A. 210 (N.J.), involved a construction of the civil service statute and is not in point.
25 Overman v. Lanier, 157 N.C. 544, 73 S.E. 192, 194; accountant, Wolfe's Case, 34 N.J. Eq. 223; counsel fees,Kingsland v. Scudder, 36 N.J. Eq. 284, 286; In re Megargee,117 N.J. Eq. 347, 175 A. 808, 809, 810; expense of safe deposit box, Hartson v. Elden, 58 N.J. Eq. 478, 44 A. 156, 158; expense of examination of testator's effects, In re Wiley'sEstate, 65 A. 212, 214 (Prerog. Ct., 1906).
26 Expenses of the care and conservation of the property of the estate as such. See Clark v. Platt, 30 Conn. 282 (details of expenses undisclosed); traveling expenses (details undisclosed), Main's Appeal, 73 Conn. 638, 645; In re Estateof Harold P. Walker, 13 Del. Ch. 439, 122 A. 192, 194 (expenses of auto, carfare and telephone incurred in the conservation of the personal property of the estate); Tuttle v.Robinson, 33 N.H. 104, 118 (per diem allowance for attendance at court in the matter of the estate).
27 Dent v. Foy, 214 Ala. 243, 107 So. 210; counsel fees and fees paid tax expert, Hagedorn v. Arens, 106 N.J. Eq. 377, 150 A. 4, and In re Megargee, 117 N.J. Eq. 347,175 A. 808, both cited supra note 24; Lindsay v. RichardsonEstate, 98 Mich. 319, 57 N.W. 171, 172; counsel fees,Vanderbilt University v. Mitchell, 162 Tenn. 217,36 S.W.2d 83, 86, cited supra note 21; Meddaugh v. Wilson,151 U.S. 333, cited supra note 11.