The Pa. Co. for Ins. on Lives & Granting Annuities v. Picher. quote from 39 Cyc., page 483, as follows: "A trustee may waive his claim to compensation. What amounts to a waiver of commissions will be determined like all other questions of waiver, by the acts or omissions of the party entitled otherwise to claim them, etc. (citing authorities)." C. C. Spencer and A. E. Spencer, for respondent. (1) In Mumbach v. Nienhaus, 219 S. W. 354, our Supreme Court said: "Of course, the statute does not forever preclude an executrix from purchasing in good faith, and without previous arrangement, property she has formerly and finally sold as executrix. The 'mere circumstance of the subsequent sale by the purchaser' to the executrix is not sufficient to warrant the assertion that the sale to Rambousek was not made in good faith.' No presumption of collusion arises from that fact alone. Vasques et al. v. Richardson, 19 Mo. 101; West v. Waddill, 33 Ark. 575. According to these decisions, the mere fact of the purchase in this case is no evidence of collusion. At most, it cannot be held that such fact shows collusion as a matter of law." (2) Under the law, as declared in Missouri and elsewhere, even though defendant in making collections and distributions, be classed as a sort of trustee, he is entitled to reasonable compensation for his services rendered at the request of plaintiff and others. In Kemp v. Foster, 22 Mo. App. 649, the Kansas City Court of Appeals said: "Generally, a trustee is entitled to a reasonable compensation for his time, trouble and skill in managing the fund and executing the trust, unless it appears that it was the intention that no compensation should be charged." Citing 2 Perry on Trusts, sec. 917-918. The St. Louis Court of Appeals, in Maginnis v. Green, 67 Mo. App. at 620, said: "In England a trustee is held to act gratuitously unless the instrument creating the trust provides for his compensation. In America the general rule is that he will be allowed reasonable commissions if he has spent his The Pa. Co. for Ins. on Lives & Granting Annuities v. Picher. time in the management or preservation of the trust estate." St. Louis Court, in Wiegand v. Woemer, 155 Mo. App. 227-259, held that where trustees of a fund to be held for payment of an annuity received it on July 8th in the form of interest paying bonds and a certificate of deposit in an absolutely safe bank and were not required to give bond, and on August 5th, after the death of the annuitant, which occurred on July 24th, were asked to turn over the fund to the distributees, but refused to turn over the fund or any part of it, for the reason that part of it was in dispute, $500 was a reasonable allowance for their compensation. Here the right to some compensation was not seriously disputed, and the contest was over the amount thereof. To the same effect is case of Ladd v. Pigott, 215 Mo. 370. (3) A trustee can receive pay out of the trust fund for such services and expenditures only as are within the line of duties imposed upon him by the instrument creating the trust. Tracy v. Railroad, 13 Mo. App 295, affirmed in 84 Mo. 210. The Supreme Court of the United States plainly states the American rule, as follows: "In England courts of equity adhere to the principle, which had 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 first and reasonable that a trustee should receive a fair compensation for his services, and in most cases it is gauged by a certain percentage on the amount of the estate." Barney v. Saunders, 16 How. (U. S.) 535, 541, 14 L. Ed. 1047, 1050 28 Am. & Engl. Ency. Law (2 Ed.), pp. 1032-1033, thus states the rule: "It is a fundamental principle of the English courts that trustees are not to be permitted to derive personal profit from the performance of the duties of the trust, and, hence, no compensation is allowed to them for personal services in the performance of their official duties, though involving personal trouble and loss of time, unless such compensation is provided for in the trust instrument, or by special contract. But The Pa. Co. for Ins. on Lives & Granting Annuities v. Picher. even in England the trustee is allowed indemnity for all necessary expenses, including losses and charges. The effect is much the same as if compensation was granted to him. Although formerly this doctrine was, and is at the present time, in the absence of statute, followed in some States, yet now in America and Canada, generally, a trustee, in the absence of any agreement or stipulation therefor, is allowed compensation by the court when he has faithfully discharged his duties." (4) Even a constructive trustee is entitled to compensation for managing property, where he is chargeable with the rents. Olson v. Lamb, 56 Neb. 104, 76 N. W. 433, 71 Am. St., Rep. 670; Cowing v. Howard, 46 Barb. (N. Y.) 579; Barney v. Saunders (U. S.), was followed in Rowland v. Maddock, 183 Mass. 364, 67 N. E. 347, 349, holding committee of creditors of absconding debtor, for benefit of themselves and other creditors, to recover and distribute debtor's property, are entitled to reasonable compensation for bringing back debtor from Canada, together with money, for services in distributing money, though committee were wrong in failing to render proper account and in paying gratuity to police. There is a suggestion occurring for the first time in appellants' printed brief that, in some way not disclosed, defendant has waived his right to compensation, if he ever had such right. The pleadings present no question of waiver, the evidence does not support any such claim, and appellant does not attempt to point out what constitutes the basis of the alleged waiver. FARRINGTON, J.-Plaintiffs appeal from a judg ment rendered in favor of defendant in a suit seeking to to recover the sum of $685.76, alleged to be wrongfully withheld by the defendant from plaintiffs. The cause was tried in the circuit court before the judge sitting as a jury upon the following agreed statement of facts: "It is hereby agreed and stipulated by and between the parties hereto that a jury be and the same is hereby waived and that this cause shall be submitted to and decided by the court upon the following agreed statement of facts, The Pa. Co. for Ins. on Lives & Granting Annuities v. Picher. which shall be taken as and shall be the sole and only evidence in the case, to-wit: I. On February 15, 1906, all of the stockholders of the Picher Lead Company, a Missouri corporation, and amongst others the plaintiff's and the defendant herein, and Oliver H. Picher, entered into a written contract and made, executed and delivered their written contract, in and by which it was agreed and provided that said Oliver H. Picher was thereby authorized to sell and deliver all the capital stock of said Picher Lead Company for a price and sum therein specified and payable (1) a designated portion in cash, (2) another portion in notes, one-half due in one year and one-half due in two years from date with interest and secured by first mortage on the lands and works owned by said Picher Lead Company and (3) balance of $100,000 to be represented by certificates of indebtedness of the purchasers, carrying no personal liability of the maker or makers thereof and to be secured by ten sixty-sixths (10/66) of the then Picher Lead Company stock; that said notes were to bear interest from date at the rate of 6 per cent per annum, payable annually, with the provision that if the interest should not be paid annually the said stock should thereby become forfeited and become the property of the holders of said certificates of indebtedness. It was further provided in said contract that all dividends declared upon said stork so pledged as collateral security should be paid to the holders of said certificates of indebtedness, credited first upon any interest due thereon and the remainder upon the principal thereof, and that when the amount of dividends so paid should equal the balance so due upon said certificates of inbebtedness, or when the maker or makers thereof should pay the balance due thereon at any time the said stock should be returned to said maker or makers. It was further provided in said contract that in the event of such sale, the proceeds thereof, to-wit, the amount received in cash, in notes secured by mortgage and in notes secured by the stock as The Pa. Co. for Ins. on Lives & Granting Annuities v. Picher. aforesaid, should be distributed and delivered as therein specified. Said contract then provided for full distribution of all thereof; the estate of Joseph J. Solomon, deceased, to receive three-twentieths (3/20) thereof. Said contract further contained the following provisions: 'It is understood and agreed that neither the said Picher nor any other present owner of any interest in said Picher Lead Company, is to receive any compensation in or about said sale, directly or indirectly, or be in any manner interested in said purchase.' "The said Picher' so mentioned was Oliver H. Picher. II. Shortly following the delivery of said contract, the said Oliver H. Picher did sell and deliver all of the capital stock of the Picher Lead Company for the price and upon the terms and in accordance with said contract, and the portion of the purchase price to be paid in cash was so paid and distributed to the signers of said contract in accordance therewith, and to their holdings of stock; that the portion of the payment to be represented by notes secured by mortgage was so paid upon maturity of said secured notes, the mortgage released and the proceeds distributed amongst the stockholders according to the terms of the first mentioned contract; that the remainder of the purchase price, to-wit $100,000, was covered by the execution of certificates of indebtedness, as provided in the contract, said certificates being nine (9) in number and aggregating $100,000. three thereof being $15,000 each, three for $10,000 and three for $8,333.33, and each of the three purchasers executing one of each class of said certificates; and there was pledged and delivered to the said O. H. Picher as collateral security for the payment of said indebtedness 153 shares of the capital stock of the said Picher Lead Company; that upon execution of said certificates of indebtedness they were distributed amongst the selling stockholders in said Picher Lead Company, and for their portion thereof the plaintiff's received Certificate No. 1, signed by R. W. Evans, for the principal sum of $15,000; that the 153 shares of |