discharge of his indebtedness, of $750 per annum from the time of the adoption of the order to the time of his removal by the chancellor. His account was so made out, from the books, by Wm. M. Gouge and Wm. R. Miller, accountants, appointed by the governor, under the act of January 15, 1855, to investigate the affairs of the bank, etc.

But the chancellor made an order, referring the matter to a special master, with directions to re-state the account "by allowing him only the per diem pay provided for in the deed of assignment, for the number of days he was shown by the evidence on file to have been in attendance at Little Rock, in the performance of his duties, instead of the annual compensation of $750, included in the accounts made up in the abstracts, etc."

The special master accordingly re-stated and reported Biscoe's account, as directed by the chancellor; it was approved, and a decree rendered against him for the balance thus ascertained to be due from him to the trust.

He excepted to the order of the chancellor giving the direction above referred to, and to so much of the report of the special master as related to the compensation allowed him.

The deed under which the appellant accepted the trust, expressly and plainly fixes the compensation to be allowed the trustees for their services in the execution of the trust; and they clearly had no power, by an order passed by themselves, to increase it. If they could vote themselves a salary of $750 per annum, without regard to the number of days employed by them in attending the meetings of the board, for the performance of their duties, they could have voted themselves any other sum, however large and unreasonable.

Where the instrument creating the trust fixes the compensation of the trustee, it must prevail. Burr on Assignments, 514; Miles et al. vs. Bacon, 4 J. J. Marsh., 463; Kendall vs. New Eng. Carp. Co., 13 Conn., 392; McMillen vs. Scott, 1 Munroe, 151.

The acceptance of the trust was voluntary, and not compulsory, and if the compensation stipulated to be paid in the deed of trust, was too small, the trustees were under no obligations

to accept it: or having accepted the trust, if they found the compensation inadequate to the labor required of them, they had the privilege of ridding themselves of its burthens by resigning.

If, however, experience had proven that the services of competent and efficient men could not be procured for the compensation fixed by the deed, and that the faithful execution of the trust. was likely to fail for want of the services of such persons, we doubt not but that it would have been competent for a court of chancery, having jurisdiction of the trust, upon a proper application, to have made an order for additional compensation.

Nor do we doubt but that it would have been within the power of the chancellor to have allowed the appellant additional compensation, even to the extent of the sum with which he had been credited annually upon the books of the bank, had he shown that he had faithfully and efficiently performed the duties imposed upon him by the deed of assignment, and that the compensation fixed by the deed was inadequate.

In Barney vs. Saunders et al. 16 How. U. S., the court said: "In England, courts of equity adhere to the principle which has its origin in the Roman law, 'that a trustee shall not profit by his trust,' and therefore that a trustee shall have no allowance for his care and trouble. A different rule prevails generally, if not universally, in this country. Here it is considered just and reasonable that a trustee should receive a fair compensation for his services: and in most cases it is gauged by a certain per centage on the amount of the estate **But on principles of policy as well as morality, and in order to insure a faithful and honest execution of a trust, as far as practicable, it would be inexpedient to allow a trustee who has acted dishonorably or fraudulently the same compensation with him who has acted uprightly in all respects. And there may be cases where negligence and want of care may amount to a want of good faith in the execution of the trust, as little deserving of compensation as absolute fraud."

Here the chancellor refused to allow the appellant any greater compensation than that which was stipulated for in the deed. The chancellor was of the opinion that the appellant, and other trustees, had not faithfully and efficiently performed their duties, and were not executing the trust with fidelity-indeed, he was of the opinion that they had abused the trust. Hence he removed them, and placed the assets in the hands of a receiver to be administered, etc. The chancellor also found that by the negligence of the trustees, a part of the trust property had been lost, and charged the appellant with a considerable sum as his portion of the loss. He acquiesced in so much of the decree as removed him from office for want of fidelity, and in so much as required. him to contribute to make up the value of property lost by the negligence of him and his co-trustees; and yet he asks us to reverse that portion of the decree in which he was refused, by the chancellor, greater compensation for the services performed by him than that fixed by the deed.

It seems that his per diem, mileage, etc., for attending the meetings of the board, amounted, according to the report of the special master, to about $590 50; while his compensation at a salary of $750 per annum, with which he obtained credit upon the books of the bank, amounted to over $8,000.

The amount of compensation, under the provisions of the deed, was made to depend upon the number of days spent by the trus tees in attending the meetings of the board, the distance traveled, etc., and if the reward thus offered them was an inducement to diligence in attending the meetings, its effect, it may be supposed, was in some degree lost, by the order which, as practically construed by them, gave them an annual salary of $750, regardless of the number of days employed by them in the performance of their duties at the place, and in the manner contemplated by the

deed.

It is true that the appellant says, in his answer, that he performed services for the trust when not attending the meetings of the board of trustees; but if he had a claim to additional

compensation on account of such services, we find in the record before us no evidence of their character and extent.

The decree must be affirmed.

Hon. H. F. FAIRCHILD did not sit in this case.

STATE VS. SHALL AD.

A plea of the statute of non-claim, filed by an administrator in a chancery case where there are several defendants, may be allowed at the time of argument or may stand over until the final hearing of the cause. But if the court sustain the plea at the argument, and render a final decree dismissing the defendant, after the lapse of the term the decree passes beyond the control of the chancellor.

Appeal from Pulaski Chancery Court.

Hon. H. F. FAIRCHILD, Chancellor.

HEMPSTEAD, for the appellant.

WATKINS & GALLAGHER, for appellec.

Mr. Chief Justice ENGLISH delivered the opinion of the court. This is a branch of the suit of the State against the Trus

tees of the Real Estate Bank, and connects with Biscoe vs. State, ante.

Ebenezer Walters became one of the residuary trustees, by appointment, 5th of April, 1844, and remained such to the time of his death, 14th June, 1849. Having left a will on the 10th July, 1849, letters testamentary were issued to his executor, Thomas W. Newton, by the probate court of Pulaski county. Newton died 22d September, 1853; and on the 12th of April, 1854, David F. Shall was appointed administrator of Walters, with the will annexed, and as such was made defendant to the bill: which was filed, and subpœna issued 1st May, 1854.

On the 10th of June, 1854, Shall filed a plea setting up the death of Walters, the grant of letters testamentary to Newton, the death of Newton, and the grant of letters of administration to himself, and averred that the demand or cause of action set out in the bill had not been properly authenticated and presented for allowance against the estate of Walters, to Newton or himself, according to the administration law, and relied upon the statute of non-claim as a bar to the suit.

On the 17th of August, 1855, the plea was set down for argument, and was argued on the 6th of November, 1855, and the chancellor being of opinion that the plea was sufficient, and ought to be sustained, and the State declining to reply thereto, a final decree was rendered on the plea, discharging Shall, dismissing the bill as to him, and adjudging costs against the State.

At a subsequent term of the court, on the 24th June, 1859, before final decree, the State, by her solicitor general; moved the court for a rehearing and reconsideration; and for the setting aside of the order or decree, setting the plea down for argument, and adjudging the same sufficient, and that the plea be held insufficient; and also moved that a decree be rendered against Shall, as administrator of Walters, for $2,438 49, in gold and silver coin, with interest, found due by the report of William B. Wait, special master; and also for $2,365, in gold or silver coin, found to be due from Walters, by the report of