MITCHELL VS. HOLMES. 289

of opinion, that during the life of William Holmes, the uncle of
the testator, and of his aunt, Sarah Floyd, the income should
be divided between them in equal moieties; and that the title
of the children of the aunt, to participate in the income of the
trust estate, is postponed until after the death of the uncle.
With regard to the proper application of the income, during the
joint lives of the uncle and aunt, there does not seem to me to
be much difficulty, it beiqg clearly the intention of the testator
to divide it equally between them.

In the event of the death of the uncle, living the aunt, a
question of some difficulty might arise respecting the proportions
in which, upon that contingency, the income of the estate should
be divided among the aunt and her children; but as this con-
tingency may not happen, there does not appear to be any ne-
cessity for an expression of the opinion of the court upon it.
As the case is submitted without argument, there seems to be
af peculiar propriety in confining the opinion of the court, to
the questions which the condition of the case at this time, ren-
ders important.

The other question has reference to the commission of the
trustee.

He has already received as executor, eight per cent. upon
the personal estate now in his hands as trustee; and the answer
of the defendant Holmes, insists, that the trustee is only entitled
to ten per cent. commission on the gross income of the personal
estate.

But the testator has said, that he shall have "ten per cent. up-
on the whole amount of property, which may come into his hands
as trustee." Not upon the amount of income, but upon the
amount of property, and this declaration of the testator gives
the law of the case. The compensation thus fixed by the tes-
tator to be paid to the trustee, is to be paid to him as such ;

regarding him, when acting in that capacity, as filling an office
wholly distinct from the office of executor. The per centage
is to be paid him on the property, which may come into his
hands as trustee; an office, so far as this question is concern-
ed, entirely distinct from that of executor, and the compensa-
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