WINDER v. DIFFENDERFFER.—2 BLAND. 157

Commissions allowed to a trustee, as a compensation for his skill and trouble,
are not to be lessened or withheld because of conduct in respect to which
he had been charged with interest, (e)

An account allowing to the trustee a commission of ten per cent, on collec-
tions and disbursements ratified. (f)

THIS bill was filed, on the 8th of August, 1825, by William
Sydney Winder, and Araminta, his wife, against John Diffenderffer
and his three infant children, Amelia Diffenderffer, Michael Diffen-
derffer, and Charles II. Diffenderffer. The answer of the defend-
ant John invoked into this case the proceedings in a suit instituted
some time before in tins Court, which forms a preliminary and
necessary illustration of the grounds of this controversy. The
proceedings in that suit are as follows:

On the 27th of February, 1806, Sarah Rogers, Mary Lee, Catha-
rine Eogers, and Nicholas Hopkins, filed their bill against John
Merryman and William R. Smith, in which they stated, that
Charles Rogers had, on the 15th of November, 1805, made Ms last
will disposing of his estate, in trust, for the benefit of the plain-
tiffs, Sarah, Mary and Catharine, and soon after died. This will,
so far as regards the matter in controversy, is as follows:

"I do hereby nominate and appoint my friends John Merryman.
William R. Smith and Nicholas Hopkins, and the survivors, or
survivor of them, and the heirs of such survivor, trustees of all my
real estate, to hold the same in trust as hereinafter mentioned,
and also I do hereby make them executors of this my last will and
testament.

(e) Cited in Railway v. Keighler, 29 Md. 580. See note (/), infra. As to
allowance of commissions to trustees, see Gibson's Case, 1 Bland, 138, note (c).

(f) Reversed in Diffenderffer v. Winder, 3 G. & J. 347, where the Court
said: " On the appeal taken in this case by "Winder and wife we cannot sus-
tain the decree of the Chancellor. It gives to the trustee a commission of
ten per cent., which is the full allowance that ought to have been made to
him had his conduct been marked by a strict performance of the duties he
had assumed. But this is very far from being the posture in which he ap-
pears before us. It is the duty of a Court of equity in the distribution of its
favors to discriminate between those who violate their duty, and abuse their
trust, and those who perform it with skill and fidelity. To the latter a full
commission is cheerfully bestowed: to the former half that amount is re-
luctantly granted. Mr. Diffenderffer having kept full and fair accounts of
his receipts and expenditures, and in that respect faithfully discharged his
duty as trustee, we do not think he has forfeited all claim to commissions as
he otherwise would have done. We reverse therefore the decree of the
Chancellor on the appeal by Winder and wife, on the ground that but five,
instead of ten, per cent, commission ought to have been allowed to the
trustee." The case in the text is cited in Whyte v. Dimmock, 55 Md. 456,
where it was held that payments to a c. q. t. of moneys collected, and upon
which commissions had been allowed for such collection, are not disburse-
ments within the meaning of the decree allowing commissions. Cf. Jenkins
v. Whyte, 62 Md. 434.