offer of compromise by John F. Waggaman, brother of the defaulting trustee. The offer was accepted and approved by the court, which resulted in a loss to the estate of about $2,000.

The court below entered a decree that Waggaman, Raleigh, and Ralston, trustees, be held to have forfeited all right to any commission or compensation for handling said estate; that they be charged jointly and severally with the full corpus of the estate, $17,257.57, together with interest thereon from the date when the respective items making up said estate were received by them, or any of them, until paid; that they be given credit for the $10,000 received from the sureties of Waggaman, for the sum received in the compromise from John F. Waggaman, for whatever may have been received from the trustee in bankruptcy of Thomas E. Waggaman, and for all sums actually distributed to the beneficiaries of the estate, with interest thereon, as of the respective dates of such distribution. The decree further directs that the cause be referred to the auditor to state this account.

We think the court below erred in charging defendants with costs and expenses incurred in equity suit No. 14,427. While the action was totally unnecessary, the court had jurisdiction to pursue this indirect and expensive course in directing the sale of the real estate. Under the terms of the will, the trustees were vested with full power to sell and convey the real estate and invest the proceeds. Hence, the order confirming the sale in the original equity cause, No. 7,907, was all that was required to vest good title in the purchasers. But if the remaindermen had been essential parties, they could have been brought in by rule in that case. Suit No. 14,427 was instituted by the beneficiaries, and not at the instance of the trustees. They had already done all that was required under the trust, and no default had occurred on their part. We think, therefore, that they should not be penalized for the costs and expenses of this unnecessary litigation.

It is well settled, however, that where trustees default or permit a trust estate to be wasted through their negligence, they may be held to forfeit any commissions or fees that have

been paid them during their trusteeship. Lathrop v. Smalley, 23 N. J. Eq. 195; Dufford v. Smith, 46 N. J. Eq. 217, 18 Atl. 1052. In Barney v. Saunders, 16 How. 535, 542, 14 L. ed. 1047, 1050, the court said: "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 dishonestly 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. If trustees, having a large estate to invest and accumulate for the benefit of an infant, for a number of years, will keep no books of account, make out no annual or other account of their trust estate; if they risk the trust funds in their own speculations; lend them to their relations without security; and in other ways show reckless disregard of the duties which they have assumed, they can have but small claim on a court of equity for compensation in any shape or to any amount."

We are of the opinion, however, that, since defendants Raleigh and Ralston were at no time cotrustees, they should be charged individually with the commissions or fees respectively received. Certainly, Ralston cannot equitably be held responsible for fees received by Raleigh long before he (Ralston) became trustee, and, in fact, before any default or mismanagement of the estate occurred. Likewise, Raleigh should not be held for fees or commissions paid Ralston long after he (Raleigh) had relinquished his trusteeship. As to general losses resulting from the mismanagement of the estate, defendants must be held jointly liable, since the investments existed through the cotrusteeship of each of the defendants with Waggaman. Defendants are also jointly liable for any fees or commissions paid their cotrustee Waggaman, provided they cannot be recovered from his estate.

The joint liability of a trustee for negligently allowing a cotrustee to dissipate the trust estate is well settled. Booth v.

Booth, 1 Beav. 125, 8 L. J. Ch. N. S. 39, 2 Jur. 938; Oliver v. Court, 8 Price, 127, Daniell, 301, 22 Revised Rep. 720; Burrows v. Walls, 5 De G. M. & G. 233, 3 Eq. Rep. 960, 3 Week. Rep. 327; Lewis v. Nobbs, L. R. 8 Ch. Div. 591, 47 L. J. Ch. N. S. 662; Trutch v. Lamprell, 20 Beav. 116; Thompson v. Finch, 22 Beav. 316, 25 L. J. Ch. N. S. 681; Hughlett v. Hughlett, 5 Humph. 453; Moeller v. Poland, 80 Ohio St. 418, 89 N. E. 100; Beatty's Estate, 214 Pa. 449, 63 Atl. 975; Earle v. Earle, 93 N. Y. 104; Bermingham v. Wilcox, 120 Cal. 467, 52 Pac. 822; McMurray v. Montgomery, 2 Swan, 375; Smith v. Pettigrew, 34 N. J. Eq. 216. The rule is clearly stated in Deaderick v. Cantrell, 10 Yerg. 264, 272, 31 Am. Dec. 576, as follows: "Two trustees are appointed to execute a trust the final operation of which is not to be completed for years; they undertake to execute it; they are intended as checks on each other, have an equal control over the fund, are mutually bound to attend to the interest of the trust, and shall one of them be permitted to go to sleep and trust everything to the management of his cotrustee, and when, in the course of ten or fifteen years, the fund having been wasted and his cotrustee insolvent, he is called upon to make it good, shall he be heard to say that he had implicit confidence in his companion, and permitted him to retain all the money and appropriate it as he pleased, and that he ought not therefore to be charged? Surely not; it is neither law nor reason. This is what Wharton did, and this is his excuse and reason why he should not be made liable for the act of his cotrustee. We therefore think that, if this were a discretionary trust, Wharton is bound to make good the losses occasioned by Cantrell.”

We agree with the court below that there is nothing in this record reflecting in the slightest degree upon the honesty and integrity of either Raleigh or Ralston. It is purely a case of civil liability arising under well-established rules of equity. No intimation is made by counsel for plaintiff of moral turpitude on the part of these trustees. If their neglect had not been so complete and wholly inexcusable, there might be ground for extending relief, but there is not a mitigating circumstance in the

Opinion of the Court.

[43 App.

whole transaction. Waggaman from the beginning was permitted to do as he pleased with the trust estate, and these cotrustees neither inquired into the condition of affairs themselves, nor took any active steps to have the situation investigated by the court. It is now urged that Waggaman alone is responsible, but, as suggested by the court below, "such a holding would go far to destroy the confidence of men in courts and their officers as guardians of property."

It is earnestly contended that, inasmuch as the compromise with John F. Waggaman, in which the estate lost about $2,000, was made under the direction of the court, the trustees should not be held liable for the loss. It may well be that the compromise ordered by the court was a good one and netted the es tate more than could have been derived from the foreclosure proceedings. But the difficulty is that the compromise was made necessary by the neglect of these defendants. Had they examined into the nature of the securities which Waggaman held, and made a timely representation to the court, the compromise would not have been necessary. Defendants are liable for the loss sustained by this compromise, not through the action of the court in ordering it, but because their neglect made the compromise necessary.

The court below is directed to amend its decree in such form as to charge the defendants Raleigh and Ralston with the full corpus of the estate, $17,257.57, less any fees or commissions, as of the dates thereof, which either of said trustees may have received from the estate, and to give the defendants credit, in addition to those credits allowed by the court below, for the following costs and expenses, as of the dates thereof, in equity suit No. 14,427: costs of suit, $53.95; W. II. H. Raleigh, notary fees, $1.00; costs of reference in equity suit No. 7,907, $35; auditor's fees, $20; costs of printing, $25; indivi« lual costs and expenses to Raleigh; attorney's fee to W. D. Davi dge, and all attorneys' fees paid out of the corpus of said estate in said suit No. 14,427; and to further amend the decree so as to require defendant Raleigh to account to the estate for fees or commissions as of the dates thereof, which may have Leen

any

paid him either for making sale of the real estate or for serv ices as trustee, with interest, and to require defendant Ralston to account to the estate for any commissions or fees received by him, as of the dates thereof, with interest. With these amendments, the decree is affirmed, and the costs of this appeal will be divided equally between the plaintiff and defendants. Modified and affirmed.

A motion for rehearing by appellant was denied May 10, 1915. A motion for rehearing by appellee was denied May 21, 1915.

WASHINGTON RAILWAY & ELECTRIC COMPANY v. LANAHAN.

TRIAL; DISCONTINUANCE; MISCONDUCT OF COUNSEL; OBJECTIONS AND EXCEPTIONS.

Where, in a personal injury action, the plaintiff's testimony and that of the defendant's physician were in conflict as to whether the physician had advised the plaintiff to seek rest in the country, she testifying he had done so, and he testifying that he had merely agreed with her own physician's suggestion to that effect; and upon plaintiff's counsel remarking in the presence of the jury that the company's physician had asked him to be discharged from further attendance on the trial, and not to call the other physician again, the counsel for the defendant moved for a dismissal of the action, which motion the court denied, but stated that he would instruct the jury to disregard the remarks of counsel, whereupon the defendant's counsel reserved an exception, it was held that there was no error justifying a reversal of a judgment for the plaintiff, and that if the statement of the court to the jury was not pointed or positive enough, counsel for the defendant should have asked for a more satisfactory instruction.

No. 2775 Submitted April 8, 1915. Decided April 26, 1915.