The executors are called on to render an account of their trust; and they set up a claim to a commission of 5 per cent., as a compensation for their care and trouble in the management of the estate; and they, likewise, contend, that they ought not to account for interest on moneys belonging to the estate, and which they made use of for their private purposes.

I. The claim of an allowance has been pressed upon the court with much zeal, as if the denial of it would be extremely unjust, and as if this court was at liberty to deal with established rules just as it pleased. This very point was one that arose in the case of Green v. Winter ;* and it was, then, considered as a settled rule in the English chancery, that no such allowance was admissible, unless it rested upon contract, or was given by the will. The rule there must be the rule here; for I take this occasion to observe, that I consider myself bound by those principles, which were known and established as law in the courts of equity in [*530] England, at the time of the institution of this court; and I shall certainly not presume to strike into any new path, / with visionary schemes of innovation and improvement; via antigua via est iuta. It would, no doubt, be, at times, very convenient, and, perhaps, a cover for ignorance, or indolence, or prejudice, to disregard all English decisions as of no authority, and to set up as a standard my own notions of right and wrong. But I can do no such thing. I am called to the severer and more humble duty of laborious examination and study. It was Lord Bacon who laid it down as the duty of a judge to draw his learning from books, and not from his own head. This court ought to be as much bound as a court of law, by a course of decisions applicable to the case, and establishing a rule. As early as the time of Lord Keeper Bridgman, it was held that precedents were of authority; and that it would be “ very strange and very ill” to disturb a rule in chancery which had been settled. (1 Mod. 307.) The system of equity principles, which has grown up and become matured in England, and chiefly since Lord Nottingham was appointed to the custody of the great seal, is a scientific system, being the result of the reason and labours of learned men for a succession of ages. It contains the most enlarged and liberal views of justice, with a mixture of positive and technical rules, founded in public policy,.and indispensable in every municipal code. It is the duty of this court to apply the principles of this system to individual cases, as they may arise; and, by this means, endeavour to transplant and incorporate all that is applicable in that system into the body of our own judicial annals, by a series of decisions at home.

The Master of the Rolls, Sir Joseph Jekyll, disclaimed ' any discretionary power in the court, sometimes ignorantly imputed to it, to follow the private affections, or any arbitrary notions of abstract justice, instead of the established maxims of law and equity. Though proceedings in equity are said to be secundum discretionem boni viri, yet, when [*531] it is asked, Vir bonus est quis ? The answer is, Qui consulta Patrum, qui Leges, Juraque serval; (Sir J. Jekyll, in 2 P. Wms. 753. See also 3 P. Wms. 411.;) and it may belaid down as a certain truth, that the English system of equity jurisprudence forms an important and very essential branch of that “ common law,” which was recognised in the constitution of this state, if it were not so, this court would be a dangerous tribunal, with undefined discretion, and without either science or authority to guide it. The English decisions are, undoubtedly, the most authentic evidence of the English common law; and the dignity or independence of our courts is no more affected by adopting these decisions, than in adopting the English language ; or than the independence of France or Holland is wounded by following, as they do, the civil code of the ancient Romans.

Our business, then, as questions arise, is to discover what rule, if any, has been established by the courts in this state, and if none, then what was the existing rule in the English system of equity at the commencement of our revolution. And while engaged in this inquiry, we are not' to blind our eyes against human knowledge, but it is incumbent on us to examine the several authorities, whether they be ancient or modern, whether they be before or since the revolution, whether they be foreign or domestic, which may tend in any degree to ascertain, explain, or illustrate, the point under consideration. When we have been able to deduce from them, with sufficient precision, the true, genuine rule of equity, that rule becomes the law of the case, and the case, a precedent for the future, (a)

[*532] With this explanation on the subject of cases, (and to which I have been led by the language of some decisions in this country,) I return to the point before me, and I think it is not to be denied that the law is settled against the claim of a trustee to compensation. The decisions have remained steady and uniform for a century and a half, and the rule applies not to executors merely, but equally to trustees of evegy description. The only unsettled point seems to be, whether even an agreement with the cestuy que trust, for an allowance made after the creation of the trust, or the death of the testator, would be recognised as binding. “ I will not say,” observes Lord Hardwicke, “ that the court will set aside such an agreement, if fairly and openly made, though there is no instance where the court has confirmed such a bargaim” A trust is regarded, in chancery, as a matter of honour and conscience, and undertaken with humane, or friendly, or charitable, and not with mercenary, views. It is not necessary to go through the cases at large, or repeat wbat I have said on a former occasion. A general reference to the authorities must be sufficient. (How v. Godfrey, Rep. temp. Finch, 361. Hethersell v. Hales, Rep. in Ch. vol. 2. p. 83. Bonithon v. Hockmere, 1 Vern, 316. Scattergood v. Harrison, Moseley, 128. Robinson v. Pett, 3 P. Wms. 248. Gould v. Fleetwood, n. ib. Ayliffe v. Murray, 2 Atk. 58. The Charitable Corporation v. Sutton, 2 Atk. 406. In the matter of Annesley, Amb. 78. Ellison v. Airey, 1 Ves. 111. Chetham v. Lord Audley, 4 Ves. 72. Fearns v. Young, 10 Ves. 184.)

The distinction attempted to he raised between a mere executor, and one partaking rather of the character of an agent or bailiff, is not applicable to the case. The distinction might, with equal or more propriety, have been made in [*533] How v. Godfrey & White, which was one of the earliest cases, and in which the general rule was established by Lord Nottingham himself. The defendants in that case, . . were appointed by a nuncupative will to take care of the estate for the infant children of the testator, and they took out administration with the will annexed; and by virtue thereof, and as guardians, they possessed themselves of the whole estate, real and personal. If the idea of acting as agent or bailiff, rather than as executor, was applicable to any case under a will, it would have been s© to that, and yet the Chancellor rejected their demand of an allowance for their care and trouble. The same distinction was urged, and equally in vain, in Robinson v. Pett, where the services were alleged to be very extraordinary, but the party still acted under a trust created by will; and it was in that case that Lord Talbot laid down the rule in very general and emphatic terms. He said it had long prevailed, and was a reasonable rule, and one which tended to prevent the trust estate from being loaded and eaten up by a charge voluntarily assumed. It is a rule founded in the same equitable policy of closing the door to temptation, abuse, and fraud, with that other rule forbidding a trustee to become a purchaser, for bis own benefit, of the trust estate. And if the rule applied with more force and propriety to one kind of trust than another, I should think it was that of an executor who gives no security, and who is selected by reason of some special and sacred confidence, resulting from the ties of kindred or friendship, and charged by the testator, in his dying moments, with interests of the nearest human concern, and which he is on the eye of renouncing for ever. The request of the testator, in such cases, is the supplication of a friend:

--— Miseree hoc lamen unum

Exequere—mihi.

It appears to be the practice in several of the United [*534] States, to allow a commission of so much per centum to exe» cutors and other trustees. (1 Wash. Rep. 246. 4 Hen. & Munf. 415. 1 Munf. 150. 3 Binney, 457.) But this practice cannot be received here as authority, however respectable the source; for it is not founded upon any different construction of the English law, but upon local usages or statutes, which have confessedly changed the English rule. I am not responsible for the justice of that rule. I only declare the law as I find it to be settled; and if the rule was admitted to be, according to the language of one of the southern chancery cases, “ a monstrous rule,” I should not feel myself at liberty to say, as that case does, “ so far as I can go, I shall blot it out for ever.”(a)' It is the province of the legislative, and not of the judicial power, to change the law; and our constitution has auspiciously declared, that the common law of England (in which I include, of course, the equity system) “ shall continue the law of this state, subject to such alterations and provisions as the legislature of this state shall, from time to time, make concerning the same.” Nor does the rule strike me as so very unjust, or singular and extraordinary; for the acceptance of every trust is voluntary and confidential j and a thousaud duties are required of individuals, in relation to the concerns of others, and particularly in respect to numerous institutions, partly of a private and partly of a public nature, in which a just indemnity is all that is expected and granted. I should think it could not have a very favourable influence on the prudence and diligence of a trustee, were we to promote, by the hopes of reward, a competition, or even a desire, for the possession of private trusts, that relate to the moneyed concerns of the helpless and infirm. To allow wages or commissions for every alleged service, how could we prevent abuse ? The infant ór the lunatic cannot watch their own interest. Quis [*535] Susiodiet ipsos custodes ? The rule in question has a sanetion in the wisdom of the Roman law, which, equally with ours, refused a compensation, and granted an indemnity to . „ , . , ...1,1 the trustee of the minor’s estate. The maxim m that law was, that lucrum facere ex pupilli tutela tutor non debet; and the tutor or curator was entitled only to his reasonable and just expenses incurred in behalf of the estate, such as travelling charges, costs of suit, <§zc., unless a certain allowance was granted by the person by whom he was appointed. Sumptwum, qui bona fide in lutelam, non qui in ipsos tutores fiunt ratio haberi solet; nisi ab eo, qui eum dat, certum salaHum ei constitutum est. Item sumpius litis tutor reputabit, ei viatica, si ex oficio necesse habuit aliquo excúrrere vel proficisci. (Dig. 26. 7. 33. Idem. 26. 7. 58. Idem„ 37. 3. 1. 9.) It is probable that this same principle, which we find in some, has been infused into the municipal law of most of the nations of Europe, because most of them have adopted the civil law. (Domat, b. 2. tit. Tutors, sect. 2. pl. 3. sect. 3. pl. 35. Ersk. Inst. b. 1. tit. 7. sect. 31, 32.)

The same rule was known in the early ages of the common law, and applied to the guardian in socage. He was entitled only to his allowance for his reasonable costs and expenses, when called to render an account of the guardianship of the estate of the ward. (Litt. sect. 123.) And this was the provision in the statute of Marlbridge, (52 H. III. c. 17.,) declaring the duties of the guardian in socage, salms ipsis custodibus rationabilibus misis suis.

2. As to the next point, whether the executors shall be charged with interest on the moneys which they admit to have been applied by them to their own use, and on which they had, at one time, admitted themselves to be chargeable with interest, there does not appear to me to be room for a question either on reason or authority. If the executor applies the moneys of the estate to his own use, he ought to pay interest, because he ought not to make a gain out of the estate; and it is his duty to manage it for the exclusive [*536] benefit of the cestuy que trust. It is sufficient to refer to the cases of Ratcliffe v. Graves, (1 Vern. 196.,) Newton v. Bennet, (1 Bro. 359.,) and Piety v. Stace, (4 Ves. 620.,) sy10W this is a settled rule of the court.

I shall, accordingly, decree, that the defendants are not entitled to any commission, and that they must account for the interest which they have heretofore allowed to the estate; ana that, as they have undertaken, in favour of their own private claim, to litigate with the plaintiffs upon these two points, and which have been long settled in the law, it is just that they should do it at their own expense, and be chargeable with the costs of this suit; and this is the practice in such cases. (1 Bro. 359. 3 Bro. 433. 1 Ves. jun. 294. 4 Ves. 620.)

Decree accordingly, .