MITCHELL VS. HOLMES. 287

trustee to return to the purchaser the money which he has paid,
and for the payment of his costs by the defendant, or out of
the proceeds of any future sale which may be made by the
trustee.

[No appeal was taken from this order.]

WALTER MITCHELL

vs. SEPTEMBER TERM, 1848.
WILLIAM HOLMES ET AL.

[APPLICATION OF INCOME OF TRUST ESTATE—TRUSTEE'S COMMISSIONS—
DEVISE.]

UPON a devise of real and personal property to a trustee, in trust, to apply the
income arising therefrom for the mutual benefit of the uncle and aunt of the
testator for life, and after the death of the uncle to the mutual benefit of the
aunt and her children. It was HELD—

That, during the life of the uncle and aunt, the income of the trust estate should
be equally divided between them; and, that the title of the children of the
aunt to participate in the income, is to be postponed until after the death of
the uncle.

The testator having said that the trustee, whom he also appointed his executor,
shall have "ten per cent. on the whole amount of property which may come
into his hands as trustee." It was HELD—

That he was entitled to this percentage on the whole amount of property, and
not on the income only, irrespective of the sum which may have been allow-
ed him by the Orphans Court as executor; and, in this respect, the two of-
fices are to be regarded as distinct, as if filled by two different persons.

[The two questions presented to the court in this case, (the
facts of which will appear from the Chancellor's opinion,) were,
firstly, into what proportions was to be divided the income of
certain trust property, devised to two for life, and after the death
of one of them, for the mutual benefit of the other, and her
children; remainder to the said children in fee. And, secondly,
whether a trustee, who, as executor, had received a commission
on property, paid into the trust fund, should be allowed, as trus-
tee, an additional commission on the same property.]