Wagner, Judge,
delivered the opinion of the court.
The record shows that Hamilton B. Gamble died on the 31st of January, 1864, leaving a large and valuable estate. His heirs were his widow, Caroline Gamble, and three children, Hamilton, who was then of age, Mary C., who because of age on the 31st of March, 1864, and married Edgar Miller on the 28th of November, 1865, and David C., who attained his majority September 16th, 1865. He made a will by which the defendant Gibson and John D. Coulter were appointed executors; the defendant alone qualified and took possession of the property, and proceeded to administer on the estate. At his final settlement certain exceptions were made to his accounts by the three children, the widow in the meantime having died, and upon a hearing in the Probate Court, a judgment was rendered from which he appealed.
In the Circuit Court, the whole question was committed to a referee to hear the evidence aud take and state an account. [593]*593Upon the coming, in of the report, the defendant made exceptions to different items contained in it, which were overruled, and he has brought the case here for review.
The evidence does not accompany the report in the transcript filed in this court, and we can therefore only notice the conclusions of the referee on the facts as found by him.
It seems that at the request of the heirs the executor was directed to invest an amount of money for Mary C. Miller and David C. Gamble in real estate. He purchased five houses in the city of St. Louis, on Clark Avenue, for $27,075. He conveyed two of them to Mrs. Miller, valued each at $7,-375 ; two others to D. C. Gamble, valued each at $5,125, and retained the fifth one, which the referee finds to be of the value of $4,006, for himself. The four houses conveyed to the heirs, were, therefore, counted at $25,000 and thus he charged himself with only $2,075 for his house, and claimed that he was entitled to the house on account of extra services he had rendered in perfecting the title to the premises, making compromises, superintending their completion, etc. For his own personal services he asked to be allowed $2,000 for attending to the transaction. -The referee disallowed the claim, and charged him with the value of the house. I entertain no doubt about the correctness of this decision. His superintending the completion of the houses, examining and perfecting the title, were all acts done by him in an official character.
In the investment of the funds of the .estate in the purchase of the property, he was acting as executor, and an executor or trustee cannot obtain a personal advantage out of his trust. The commissions that the law or courts allow him, is the extent of his compensation. He may employ the services of an agent or attorney, if necessary, and pay for them out of the estate, but if he undertakes to act in such capacities himself for the estate, he can receive no compensation. This rule is so strict, that it has been held, that if the trustee has a partner and employs such partner, no charge can be made by the firm. (Collin vs. Carey, 2 Beav., 128; Lincoln vs. Winson, 9 Hare, 158; Christophers vs. White, 10 Beav., [594]*594523; Lyon vs. Baker, 5 DeG. & Sm., 622; Manson vs. Baille, 2 Maq. H. L. Ca., 80.) But if tlie trustee is excluded from all participation in the compensation, then his partner may be paid for services like any other person. (Burze vs. Burton, 2 Hare, 373.) A trustee has been refused compensation as solicitor for professional services rendered by himself, for himself, as trustee on the ground that no man can make a contract with himself. (Edmonds vs. Crenshaw, Harp. 232; Jenckins vs. Fickling, 4 Des., 470; Mayer vs. Galluchet, 6 Rich. Eq., 2.)
When the defendant assumed the burden of investing the money for the benefit of the heirs, he excluded himself from obtaining anything more than the statutory remuneration. It will not do to say that no charge was made against the estate or the heirs for these services. The answer is, that they were applied towards the payment of the house that the executor kept, and that was virtually charging them against the estate as the effect was to make the heirs pay so much more for their houses than they otherwise would have done. The executor, it appears, charged his commission and got credit for it, and that is all the law will permit him to retain.
The fourth and fifth exceptions may be considered together, They both relate to the collection of rents. In the fourth exception, it is alleged that the executor has taken credit in his accounts for a certain amount of rents as distributed by him to the heirs with which he never charged the debit side of his account. In the fifth exception it is averred that he ought to be charged with an amount of rents unaccounted for. The real estate was partitioned in January, 1866, and the referee holds him responsible for the rents up to that time. This was done on the ground that he had charge of the rents till partition was made. The general principle is that the realty descends to the heirs, and that the executor has nothing to do with it except in case of deficiency of assets, but where as matter of fact he does retain the charge of it and collects the rents, he is responsible for them as executor. We cannot go behind the finding of the referee in this mat[595]*595ter. The executor contends that the rents during a portion of the period were collected by the heirs, and therefore he is not liable for them. Rut they were acting as his agents, and he has credited himself with commissions on all the rents collected by them as well as himself. If, they took upon themselves the burden of collecting the rents and distributing the same among themselves independent of him, then most certainly he is not entitled to any commissions for the amount' so collected ; but if the collection was made for him, entitling him to commissions, then he should account for the same on the settlement. The finding of the referee we must presume ’was made upon sufficient evidence and there is nothing in the record, which would justify its disturbance in this respect.
The seventh exception is the most material one, and that is in reference to an investment made by the executor in gold. It appears that in the summer of 1864, the executor was in feeble health, and was about to depart for Minnesota, to be gone till in the fall. He had money in his hands belonging to the estate which consisted of the national currency of the government. It was greatly depreciated in value as compared with gold, and was constantly fluctuating. A monetary crisis was feared, and it was hard to foretell the result. His testator had in his life time invested in gold as a precautionary measure, and had at the time of his death. $20,000 on special deposit in bank. This gold the heirs directed the executor to retain on special deposit. The executor himself was carrying gold on his own private account, and he consulted J. D. Coulter, who was a friend of the family and one of the executors named in the will, who advised him to purchase the gold to make the assets secure. He accordingly did purchase some «gold, and it turned out that there was a loss on it. The «referee finds that he acted in entire good faith, but still charges him with the loss.
The general doctrine is, that a trustee has no power to change the character of the trust fund, and if a change be deemed necessary, or for the interest of the beneficiary, the [596]*596permission or sanction of the court should be obtained. This rule is necessar}* for the preservation of the fund.
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Wagner, Judge,
delivered the opinion of the court.
The record shows that Hamilton B. Gamble died on the 31st of January, 1864, leaving a large and valuable estate. His heirs were his widow, Caroline Gamble, and three children, Hamilton, who was then of age, Mary C., who because of age on the 31st of March, 1864, and married Edgar Miller on the 28th of November, 1865, and David C., who attained his majority September 16th, 1865. He made a will by which the defendant Gibson and John D. Coulter were appointed executors; the defendant alone qualified and took possession of the property, and proceeded to administer on the estate. At his final settlement certain exceptions were made to his accounts by the three children, the widow in the meantime having died, and upon a hearing in the Probate Court, a judgment was rendered from which he appealed.
In the Circuit Court, the whole question was committed to a referee to hear the evidence aud take and state an account. [593]*593Upon the coming, in of the report, the defendant made exceptions to different items contained in it, which were overruled, and he has brought the case here for review.
The evidence does not accompany the report in the transcript filed in this court, and we can therefore only notice the conclusions of the referee on the facts as found by him.
It seems that at the request of the heirs the executor was directed to invest an amount of money for Mary C. Miller and David C. Gamble in real estate. He purchased five houses in the city of St. Louis, on Clark Avenue, for $27,075. He conveyed two of them to Mrs. Miller, valued each at $7,-375 ; two others to D. C. Gamble, valued each at $5,125, and retained the fifth one, which the referee finds to be of the value of $4,006, for himself. The four houses conveyed to the heirs, were, therefore, counted at $25,000 and thus he charged himself with only $2,075 for his house, and claimed that he was entitled to the house on account of extra services he had rendered in perfecting the title to the premises, making compromises, superintending their completion, etc. For his own personal services he asked to be allowed $2,000 for attending to the transaction. -The referee disallowed the claim, and charged him with the value of the house. I entertain no doubt about the correctness of this decision. His superintending the completion of the houses, examining and perfecting the title, were all acts done by him in an official character.
In the investment of the funds of the .estate in the purchase of the property, he was acting as executor, and an executor or trustee cannot obtain a personal advantage out of his trust. The commissions that the law or courts allow him, is the extent of his compensation. He may employ the services of an agent or attorney, if necessary, and pay for them out of the estate, but if he undertakes to act in such capacities himself for the estate, he can receive no compensation. This rule is so strict, that it has been held, that if the trustee has a partner and employs such partner, no charge can be made by the firm. (Collin vs. Carey, 2 Beav., 128; Lincoln vs. Winson, 9 Hare, 158; Christophers vs. White, 10 Beav., [594]*594523; Lyon vs. Baker, 5 DeG. & Sm., 622; Manson vs. Baille, 2 Maq. H. L. Ca., 80.) But if tlie trustee is excluded from all participation in the compensation, then his partner may be paid for services like any other person. (Burze vs. Burton, 2 Hare, 373.) A trustee has been refused compensation as solicitor for professional services rendered by himself, for himself, as trustee on the ground that no man can make a contract with himself. (Edmonds vs. Crenshaw, Harp. 232; Jenckins vs. Fickling, 4 Des., 470; Mayer vs. Galluchet, 6 Rich. Eq., 2.)
When the defendant assumed the burden of investing the money for the benefit of the heirs, he excluded himself from obtaining anything more than the statutory remuneration. It will not do to say that no charge was made against the estate or the heirs for these services. The answer is, that they were applied towards the payment of the house that the executor kept, and that was virtually charging them against the estate as the effect was to make the heirs pay so much more for their houses than they otherwise would have done. The executor, it appears, charged his commission and got credit for it, and that is all the law will permit him to retain.
The fourth and fifth exceptions may be considered together, They both relate to the collection of rents. In the fourth exception, it is alleged that the executor has taken credit in his accounts for a certain amount of rents as distributed by him to the heirs with which he never charged the debit side of his account. In the fifth exception it is averred that he ought to be charged with an amount of rents unaccounted for. The real estate was partitioned in January, 1866, and the referee holds him responsible for the rents up to that time. This was done on the ground that he had charge of the rents till partition was made. The general principle is that the realty descends to the heirs, and that the executor has nothing to do with it except in case of deficiency of assets, but where as matter of fact he does retain the charge of it and collects the rents, he is responsible for them as executor. We cannot go behind the finding of the referee in this mat[595]*595ter. The executor contends that the rents during a portion of the period were collected by the heirs, and therefore he is not liable for them. Rut they were acting as his agents, and he has credited himself with commissions on all the rents collected by them as well as himself. If, they took upon themselves the burden of collecting the rents and distributing the same among themselves independent of him, then most certainly he is not entitled to any commissions for the amount' so collected ; but if the collection was made for him, entitling him to commissions, then he should account for the same on the settlement. The finding of the referee we must presume ’was made upon sufficient evidence and there is nothing in the record, which would justify its disturbance in this respect.
The seventh exception is the most material one, and that is in reference to an investment made by the executor in gold. It appears that in the summer of 1864, the executor was in feeble health, and was about to depart for Minnesota, to be gone till in the fall. He had money in his hands belonging to the estate which consisted of the national currency of the government. It was greatly depreciated in value as compared with gold, and was constantly fluctuating. A monetary crisis was feared, and it was hard to foretell the result. His testator had in his life time invested in gold as a precautionary measure, and had at the time of his death. $20,000 on special deposit in bank. This gold the heirs directed the executor to retain on special deposit. The executor himself was carrying gold on his own private account, and he consulted J. D. Coulter, who was a friend of the family and one of the executors named in the will, who advised him to purchase the gold to make the assets secure. He accordingly did purchase some «gold, and it turned out that there was a loss on it. The «referee finds that he acted in entire good faith, but still charges him with the loss.
The general doctrine is, that a trustee has no power to change the character of the trust fund, and if a change be deemed necessary, or for the interest of the beneficiary, the [596]*596permission or sanction of the court should be obtained. This rule is necessar}* for the preservation of the fund.
The temptations to tamper with the fund by a trustee are so powerful and so nnmeroirs, the hopes of bettering the estate so often prove delusive, that the power of changing the character of the fund is most safely reposed in the discretion of judicial tribunals. This is the invariable rule in reference to converting money into real estate, or real estate into money. There the character is wholly changed, and it can only be done by delegating the authority in the instrument creating the trust, or in other instances by the sanction of the court.
The courts in Alabama and North Carolina have recently held, that where an executor or administrator converted the assets of the estate into confederate money, or confederal o bonds, he was not exonerated from accounting for the sam 9 upon his final settlement. But those cases are not parallel with this. There the conversion was in funds which had n # value outside their territorial limits, and were greatly depreciated there, with a prospect of becoming entirely worthleus upon the termination of a civil strife then raging. Here, i.fc was changing one form of money for another, a currency tlu.l was variable and fluctuating in its character for one that coni \ suffer no depreciation, that possessed a fixed and permanent standard throughout the habitable globe. Exigencies may arise in which trustees are bound to assume responsibilities in order to protect the trust fund, and although they are held to great strictness in its management, they will not be dealt harshly with, when it appears they have acted in good faith. In the present case the. testator in his lifetime turned his ready money largely into gold, which he kept on special deposit on account of his fears of the national currency. The executor did the same thing in regard to his own private affairs, and the most prudent men in the country pursued the same course. The intention was certainly good. In addition • to all this the heirs acquiesced after they were all of age, and with a full knowledge of the facts when the accounts were rendered, they not only made no objection, but one of them gaye a receipt for his share, thus ratifying the transaction. [597]*597Under all these circumstances I think it would be inequitable to charge the executor with the loss, and that the referee decided wrongly.
It is insisted that the heirs should, not be allowed to object to the settlement, because the executor had previously rendered them an account covering all the matters in controversy, and they declared that it was satisfactory. But I am not of this opinion. It is true they did assent to it, because they said they wanted no difficulty, but at the same time a dissatisfaction was expressed. This did not preclude them from making their objections at the settlement. The doctrine that a stated account is presumed to be correct when rendered, and objections are not made within a reasonable time, has no application to a case of this kind.
These are all the material questions excepted to. Some minor points have been discussed, but from the facts as found we cannot say that the referee erred in his conclusions. But for the error in charging on the loss of the gold purchase, the judgment should be reversed, and the cause remanded.
All the judges concur.