The opinion of the court was delivered by
Mr. Justice McGowan.
On July 24, 1875, the plaintiff, then Martha M. Dawson, in consideration of love and affection for her daughters, Anna Virginia Dawson and Mary Emma Dawson, duly executed a deed to the defendant, O. H. P. Fant, of the County of Anderson, conveying to him five (5) shares of stock in the-State Savings and Insurance Bank of Anderson, and thirty-eight (38) shares of stock in the National Bank of Anderson, of the-par value of one hundred dollars ($100) per -share, upon the following uses and trusts : “In trust for my own use: that is to pay the dividends, income, issues, and.profits thereof as they may accrue to me, for and during the term of my natural life; and at my death to continue the collection of the same, and divide them, that is, the income and profits, equally between my said daughters for and during the terms of their natural lives; and if either,” &c., &c., with limitations over.
It appears that these stocks proved to be a remarkably fine investment. Dividends on the forty-three shares were declared semi-annually, amounting generally to twelve (12) per cent, per annum. These dividends were regularly drawn by the trustee, Mr. Fant, and paid to the plaintiff, the cestui que trust for life. And in addition to these dividends paid, it seems that there were very considerable accumulations of “issues and profits” from the 43 shares of stock, amounting to about $15,000, w'hich, as we understand it, was never paid out to stockholders, but kept in bank, having, however, the incidental effect of increasing the market price of the stocks. Now the banks have closed up their business, and are ready to distribute the assets, including these accumulations along with original stocks, as if they had been sold. This made it necessary to determine how these funds should be paid out, as between the plaintiff, cestui que trust for life, and her daughters in remainder, &c.
The plaintiff, cestui que trust for life, instituted this action against the trustee, Fant, making her daughters and granddaughters parties, claiming that she is entitled to all the issues and profits on the original shares during her life; that profits have aceurnlated in bank to the amount of $15,000, which, in winding up^the affairs of the- bank, she is entitled to receive un[6]*6der the deed, but which the trustee refuses to pay her; and praying that Fant, the trustee, be required to account and pay over to her all the income, issues, and profits on said stock as provided by the deed of trust. The other adult parties put in answers concurring with the prayer of the complaint, and the infants by guardian ad litem merely formal answers, submitting their rights to the protection of the court; but the trustee, Fant, in order to protect the rights of the cestui que trust in remainder, and also to make himself safe, answered, denying the construction of the trust deed contended for by the plaintiff, and alleging that the increased value of the stocks enured to the benefit of the remain-dermen ; that at the time of the execution of the trust deed there had already accrued considerable profits, admitted to amount to twenty-six and 70-100 per cent., and continued to increase until it amounted to about four hundred and fifty per cent., &c.
There was no verbal testimony, but upon the papers and the admission of the parties, his honor. Judge Kershaw, decided that “the accumulated dividends are certainly profits of the stocks, and the general rule in such cases is that the profits enure to the life tenant, and to the same purport are the terms of this trust. Although there is some conflict in the authorities upon the question, it appears to me that, upon principle and sound reason, plaintiff is entitled to the relief demanded.” And he therefore “ordered that the trustee, O. H. P. Fant, after paying the costs of this proceeding, and .retaining to himself 2J per cent, commissions for receiving and paying over the same, do pay to the plaintiff, Martha M. Cobb, life tenant, or her attorney, the remainder of all such sums as he may receive for the accumulated income,' issues, and profits, or extra dividends, by whatever name called, directed to be paid to her for life under the said deed of trust,” &c.
From this decree the trustee Fant appeals to this court upon the following grounds: I. Because his honor erred in holding that the accumulated profits of the bank stocks belonged to the plaintiff. II. Because his honor erred in holding that the pro-fits of the bank stocks, earned before the execution of the trust deed, belonged to plaintiff. III. Because his honor erred in holding that the trustee was only entitled to 2J per cent, for receiving and paying out said accumulated profits to the plain[7]*7tiff, whereas he should have allowed 2|- per cent, for receiving and the same for paying out. IY. Because his honor erred in not allowing the trustee his attorney’s fees. V. Because his honor should have adjudged that upon a construction of the deed of trust only the usual dividends of said banks were payable to plaintiff. YI. Because his honor should have adjudged that the accrued profits up to the date of the deed, amounting to twenty-six and 70-100 per cent., was part of the corpus of the trust estate, and certainly 20 per cent, thereof required to accumulate by law.
The case is quite remarkable in several respects, and in none more than in the fruitfulness of the bank stock in question. This court is often embarrassed by matters growing out of losses, but rarely by any arising from overflowing profits. As we understand it, Mrs. Cobb occupies a position somewhat analogous to that of a life tenant, who, as a rule, is entitled to the usufruct of the land, or, if the property is money invested, to the interest thereof, leaying the corpus for those in remainder. She received good dividends on these stocks, more than the interest allowed by law, and the banks now going into liquidation, the question arises whether she is also entitled to the whole of the accumulations of profits, or the same shall be considered as new capital, upon which she would be entitled to the interest.
1 Let us first consider how the matter stood at the time of the execution of the trust deed, which was the beginning of the trust relations between these parties. The deed conveyed 43 shares of stock, each share being on its face worth $100; but nothing said of its actual value on the market. No reference was made to any profits then accumulated, as a matter distinct and separate from the stock. The only reference to “issues and profits” was to those which were to be “paid to her as they may accrue,” manifestly pointing to the future. We think the plaintiff by her deed conveyed to the trustee the legal title, not only to the stock therein described, but also to the profits which had then accrued, as necessary incidents of the stock, making the aggregate of the aforesaid accumulations and the stock the corpus, which passed to the trustee. There is no intimation in the [8]*8deed of trust that the “profits” which had accumulated at that time were to be paid to the plaintiff.
But the matter is more difficult as to the profits which accrued after the execution of the deed.
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The opinion of the court was delivered by
Mr. Justice McGowan.
On July 24, 1875, the plaintiff, then Martha M. Dawson, in consideration of love and affection for her daughters, Anna Virginia Dawson and Mary Emma Dawson, duly executed a deed to the defendant, O. H. P. Fant, of the County of Anderson, conveying to him five (5) shares of stock in the-State Savings and Insurance Bank of Anderson, and thirty-eight (38) shares of stock in the National Bank of Anderson, of the-par value of one hundred dollars ($100) per -share, upon the following uses and trusts : “In trust for my own use: that is to pay the dividends, income, issues, and.profits thereof as they may accrue to me, for and during the term of my natural life; and at my death to continue the collection of the same, and divide them, that is, the income and profits, equally between my said daughters for and during the terms of their natural lives; and if either,” &c., &c., with limitations over.
It appears that these stocks proved to be a remarkably fine investment. Dividends on the forty-three shares were declared semi-annually, amounting generally to twelve (12) per cent, per annum. These dividends were regularly drawn by the trustee, Mr. Fant, and paid to the plaintiff, the cestui que trust for life. And in addition to these dividends paid, it seems that there were very considerable accumulations of “issues and profits” from the 43 shares of stock, amounting to about $15,000, w'hich, as we understand it, was never paid out to stockholders, but kept in bank, having, however, the incidental effect of increasing the market price of the stocks. Now the banks have closed up their business, and are ready to distribute the assets, including these accumulations along with original stocks, as if they had been sold. This made it necessary to determine how these funds should be paid out, as between the plaintiff, cestui que trust for life, and her daughters in remainder, &c.
The plaintiff, cestui que trust for life, instituted this action against the trustee, Fant, making her daughters and granddaughters parties, claiming that she is entitled to all the issues and profits on the original shares during her life; that profits have aceurnlated in bank to the amount of $15,000, which, in winding up^the affairs of the- bank, she is entitled to receive un[6]*6der the deed, but which the trustee refuses to pay her; and praying that Fant, the trustee, be required to account and pay over to her all the income, issues, and profits on said stock as provided by the deed of trust. The other adult parties put in answers concurring with the prayer of the complaint, and the infants by guardian ad litem merely formal answers, submitting their rights to the protection of the court; but the trustee, Fant, in order to protect the rights of the cestui que trust in remainder, and also to make himself safe, answered, denying the construction of the trust deed contended for by the plaintiff, and alleging that the increased value of the stocks enured to the benefit of the remain-dermen ; that at the time of the execution of the trust deed there had already accrued considerable profits, admitted to amount to twenty-six and 70-100 per cent., and continued to increase until it amounted to about four hundred and fifty per cent., &c.
There was no verbal testimony, but upon the papers and the admission of the parties, his honor. Judge Kershaw, decided that “the accumulated dividends are certainly profits of the stocks, and the general rule in such cases is that the profits enure to the life tenant, and to the same purport are the terms of this trust. Although there is some conflict in the authorities upon the question, it appears to me that, upon principle and sound reason, plaintiff is entitled to the relief demanded.” And he therefore “ordered that the trustee, O. H. P. Fant, after paying the costs of this proceeding, and .retaining to himself 2J per cent, commissions for receiving and paying over the same, do pay to the plaintiff, Martha M. Cobb, life tenant, or her attorney, the remainder of all such sums as he may receive for the accumulated income,' issues, and profits, or extra dividends, by whatever name called, directed to be paid to her for life under the said deed of trust,” &c.
From this decree the trustee Fant appeals to this court upon the following grounds: I. Because his honor erred in holding that the accumulated profits of the bank stocks belonged to the plaintiff. II. Because his honor erred in holding that the pro-fits of the bank stocks, earned before the execution of the trust deed, belonged to plaintiff. III. Because his honor erred in holding that the trustee was only entitled to 2J per cent, for receiving and paying out said accumulated profits to the plain[7]*7tiff, whereas he should have allowed 2|- per cent, for receiving and the same for paying out. IY. Because his honor erred in not allowing the trustee his attorney’s fees. V. Because his honor should have adjudged that upon a construction of the deed of trust only the usual dividends of said banks were payable to plaintiff. YI. Because his honor should have adjudged that the accrued profits up to the date of the deed, amounting to twenty-six and 70-100 per cent., was part of the corpus of the trust estate, and certainly 20 per cent, thereof required to accumulate by law.
The case is quite remarkable in several respects, and in none more than in the fruitfulness of the bank stock in question. This court is often embarrassed by matters growing out of losses, but rarely by any arising from overflowing profits. As we understand it, Mrs. Cobb occupies a position somewhat analogous to that of a life tenant, who, as a rule, is entitled to the usufruct of the land, or, if the property is money invested, to the interest thereof, leaying the corpus for those in remainder. She received good dividends on these stocks, more than the interest allowed by law, and the banks now going into liquidation, the question arises whether she is also entitled to the whole of the accumulations of profits, or the same shall be considered as new capital, upon which she would be entitled to the interest.
1 Let us first consider how the matter stood at the time of the execution of the trust deed, which was the beginning of the trust relations between these parties. The deed conveyed 43 shares of stock, each share being on its face worth $100; but nothing said of its actual value on the market. No reference was made to any profits then accumulated, as a matter distinct and separate from the stock. The only reference to “issues and profits” was to those which were to be “paid to her as they may accrue,” manifestly pointing to the future. We think the plaintiff by her deed conveyed to the trustee the legal title, not only to the stock therein described, but also to the profits which had then accrued, as necessary incidents of the stock, making the aggregate of the aforesaid accumulations and the stock the corpus, which passed to the trustee. There is no intimation in the [8]*8deed of trust that the “profits” which had accumulated at that time were to be paid to the plaintiff.
But the matter is more difficult as to the profits which accrued after the execution of the deed. It is admitted that the Circuit Judge-announced the correct rule as to all dividends declared, ordinary of extraordinary; but the trustee suggests that it does not apply to a case like this, where the extra profits have never been declared as dividends at all, so that they could be paid over “as they accrued,” but were retained in the bank, which, now closing out, proposes to pay these accumulated profits to the stockholders along with the original stock. He insists that in such case the rule is, that the enhanced price of stock, by reason of dividends earned, but not declared, will be considered as capital and must be reinvested for the benefit of the remaindermen, and cites authorities for the doctrine. Upon general principles there may be some force in this view; but here the trust deed is the law of the case. The plaintiff had the right to make or not to make the deed, as she thought best, and making it, she had the right to frame the terms as she pleased; and she made them so strong that we do not feel authorized to disregard them in favor of any supposed general rule of practice upon the subject. The words are, “In trust for my own use, that is, to pay the-dividends, income, issues, and profits thereof, as they may accrue, to me during the term of my natural life,” &c. It may be that the parties at the time did not contemplate such large profits — that in a comparatively short period they would amount to four times as much as the original stock ; but we must construe the deed according to its express terms. We hold that all the issues and profits which accrued after the deed was executed belong to the plaintiff, the eestui que trust for life, and that the trustee, O. H. P. Fáñt, after paying the costs of this proceeding, and retaining proper commissions for receiving and paying over the same, must account for the same to the plaintiff, Mrs. Martha M. Cobb.
2 As to the amount of commissions to be allowed the trustee. It is true the deed of trust is silent upon the subject, but we do not see why the trustee should not retain the usual commissions, that is to say, 2J per cent, for receiving and the same for paying over the funds in his hands going to the [9]*9plaintiff. In a case proper for commissions, not forfeited by law,' it seems to us that the amount is not within the discretion of the court, but is fixed by law and may be claimed as a legal right. Section 1970 (General Statutes) declares that trustees shall be allowed the same commissions for the execution of their trusts as are allowed by law to executors and administrators; and section 1945 provides “that every executor or administrator shall for his, her, or their care, trouble, and attention in the execution of their several duties take, receive, or retain in his, her, or their hands a sum not exceeding two dollars and fifty cents for every hundred dollars which he, she, or they shall receive, and the same sum for every hundred dollars which he, she, or they shall pay away in credits, debts, legacies, or otherwise during the. course,” &c. As was said by the old Equity Court of Appeals in Gist v. Gist, 2 McCord Ch., 478, “Commissions are not given for the mere receiving and paying away, but for all the risks and trouble incident to the office of executor.” We think the trustee is entitled to the usual commissions of 2J per cent, for receiving and 2-| for paying out the funds.
3 It does not appear that the claim of the trustee to be allowed his attorney’s fees, as a proper expenditure in the execution of his trust, was considered by the court below. That was a matter which could only be determined by reference, • upon notice to the parties. Hubbard v. The Camperdown Mills, 26 S. C., 581. The Circuit Judge seems not to have decided the question. He makes no reference to the subject in his decree, and we do not think we can decide it as an original question in this court. But as the case has to go back to the Circuit, the question of counsel fees is left open for such action in reference thereto as the respective parties may be advised.
The judgment of this court is, that the judgment of the Circuit Court be modified as herein indicated, and that the cause be remanded, for such action as may be necessary to carry out the conclusions herein announced.