W. J.-I agree with Mr. Justice Weatherbee that the principle of the law of England that trustees were not allowed for their services when remuneration was not expressly provided for, but that the same should be gratuitous, is clearly established by the authorities, and I think the same principle is as applicable to Nova Scotia as to England, and as there does not appear to be any legislative authority judicial decision to the contrary it must be held to be the law of Nova Scotia until the same shall be changed by the legislature. The legislature appears, prior to this case, to have dealt with the office of both executors and trustees and to have allowed a commission for his services to the former but only the costs and expenses to the latter; this is a strong confirmation of what the law was, and an equally strong intimation that the legislature did not intend to alter it; that having changed the policy of the law in respect to executors the legislature left the case of trustees untouched until 51 Vic. ch. 11 sec 69, passed in 1888, where compensation was for the first time provided for trustees, and the provision was made applicable to trusts constituted or created either before or after the commencement the act but not to aifect any suit or other legal proceeding pending at the time of its commencement. It is difficult to conceive how the lezislature could more clearly have expressed its intention to change the law in relation to the remuneration to trustees.
Under these circumstances I am clearly of opinion that this appeal should be allowed, the judgment of the Supreme Court of Nova Scotia reversed, and the judgment of Mr. Justice Ritchie set aside. and judgment entered for the appellant for the amount claimed with costs of the trial and of both appeals. J. concurred.
J.--I am of opinion that the appeal should be allowed with costs and judgment entered for the plaintiff for the reasons given by Weatherbee and Townshend JJ. in the court below.
J.-In my opinion it is apparent upon the will of the testator that the devise of the $700 given to each of the executors therein named for his services was intended to be given to them, and if the trusts of the will should be accepted it was to be taken by them, in full compensation for all the duties of every description imposed upon them by the will in the execution of the trust purposes thereof, including that of paying over to the appellant the whole of the income to arise from the sum directed by the will to be invested for his benefit.
The defendant, in my opinion, can make no claim for any sum beyond the seven hundred dollars which it is admitted he has received. This appeal, therefore, should be allowed with costs, and judgment be ordered to be entered in the court below in favor of the plaintiff for the full amount claimed by him, with costs of suit.
J. concurred.
Appeal allowed with costs.