First, as to the allowance to the trustees of 5 per cent commission on the principal, and 10 per cent on the income. As to this allowance, the auditor made a lengthy find ing of fact, setting forth in detail the services rendered by the trustees over a period of ten years, finding, as to the character of the estate, that the great bulk thereof was second trust notes of small amounts, as to which the auditor says that the transactions were almost innumerable, the total number of notes approximating three thousand, and he sets forth in detail other services involving care of the real estate, looking after the repairs of the property, acquiring parcels of real estate, and the sale thereof, and saying in conclusion that he had no hesitancy in finding that the trustees were well entitled to the commissions allowed. This allowance met with the approval of both the District supreme court and the court of appeals, and seems to have the sanction of an earlier decision of this court, where it was said that such allowances were customary in Maryland and the District of Columbia. Barney v. Saunders, 16 How. 535, 542, 14 L. ed. 1047, 1050. We are not, therefore, prepared to disturb the decree of the courts below in this respect.

[114] The next exception involves the allowance of the item of $18,800 in the probate court of Massachusetts, and charging the trustees with the balance of the estate after that allowance had been made. It appears that the executors Richardson and Drury appeared on April 4, 1899, in the Massachusetts probate court, and by petition set forth that they had been appointed and had given bond and due notice of their appointment as executors of the will of William A. Richardson; that there was not at the time of the grants of the letters testamentary, and had not been since, property belonging to the testator in the commonwealth of Massachusetts; that since the granting of letters testamentary Isabel Magruder, the only surviving child and heir at law of the said testator, had deceased, and that under and by the terms and provisions of said will it was provided that upon her decease the property of the testator should be held

of the two minor children surviving the said daughter, namely, Alexander Richardson Magruder, of the age of sixteen years, and Isabel Richardson Magruder, of the age of about thirteen years; that these children, who were interested as beneficiaries in the trusts created by the will, at the time of the probate thereof and ever since had resided at Washington, in the District of Columbia; that Samuel Maddox and Samuel A. Drury had been appointed by the supreme court of the District of Columbia trustees for said minors, to carry out the provisions of said will in behalf of the said minors, and that Alexander F. Magruder had been appointed guardian of said minors; and they further represented to the court that William A. Richardson was not, at the time of his decease, a resident of Massachusetts, but of the District of Columbia, and that all the parties in interest under the will, at the time of the probate thereof, lived in Washington, as they had since and did then. They represented that the will should have been probated [115] at Washington, in the District of Columbia, but either by accident or mistake, probate in the probate court of Middlesex county, Massachusetts, was had, and they asked an order that they be authorized to pay over the trust funds to the trustees appointed by the supreme court of the District of Columbia, and that, upon the payment of such funds to such trustees, they be discharged from further liability.

A decree was entered in the probate court of Massachusetts on April 11th, 1899. wherein it was found that by the decree of the supreme court of the District of Columbia, dated April 1st, 1899, Samuel Maddox and Samuel A. Drury had been duly appointed trustees to perform the trusts of the will, and that the beneficiaries were residents of Washington, and that the guardian of the minors had signified his consent to the granting of the petition, and that the laws of the District of Columbia secured the performance of the trusts, and Richardson and Drury, as executors, were authorized to pay over the trust funds to Maddox and Drury, as trustees. On April 25th, 1899, in the same probate court, Richardson and Drury, as executors, filed their first and final account, in which they charged themselves with property in the aggregate of $415,458.37, and asked to be allowed sundry payments and charges. This account was indorsed with a request for its allowance, signed by Alexander R. Magruder and Isabel R. Magruder, by their guardian, Alexander F. Magruder, and by Maddox and Drury, as trustees. On the 25th of April, the probate court made the

loans on trust notes, upon which loans they were paid by the borrowers a commission ranging from 1 to 2 per cent, according to the circumstances of the case, many being building loans; that subsequently, as noter of the trust estate were paid off, Mr. Drury would reinvest the moneys of the estate in trust notes held by Arms & Drury, paying the face value and accrued interest on the notes so purchased." As a matter of law, the auditor concluded: "No profit was made by the firm of Arms & Drury on sales of the notes to the trustees.

The transactions of Arms & Drury with the trustees were in the regular course of their business, in which they had their own moneys invested. They cost the estate not a penny more than if the transactions had been with some other firm or individual. If the firm of Arms & Drury, out of their own moneys, made loans on promissory notes, upon which loans were paid by the borrower the customary brokerages, those were profits on their own funds, in which this estate could have no interest, and in which it could acquire no interest by reason of the subsequent purchase of those notes by the trustees for their real value, any more than could any of the purchasers of such notes from Arms & Drury claim such an [119] interest. No charge of malfeasance or misfeasance is made against the trustees or that, by reason of these transactions, the trustees benefited in any manner out of the money of this estate. On the contrary, the relation of the firm of Arms & Drury to Drury and Maddox, trustees, benefited the estate, by enabling the trustees at all times to make immediate reinvestment of its funds, without loss of income, and by enabling the trustees to at all times readily procure reinvestments without payment of brokerage, a brokerage not uncommonly charged the lender for placing his money, as well as the borrower for procuring his loan in times of stringency. The application of the well-known rule in equity should rather, therefore, be in favor of the trustees than against them with respect to these transactions. The objection narrows itself to a claim that Drury, by reason of his position as trustee, should, in addition to the benefit of his valuable services, commercial knowledge, and business acumen, make the estate a gift of profits on his individual moneys, to which the estate is in no wise entitled, and to which it could not make a semblance of reasonable claim had the trustees been other than Drury, or the agents of the estate been other than Arms and Drury." This view seems to have met with the approval of the supreme court, and

a like view was taken by the court of appeals of the District of Columbia (37 App. D. C. 505, supra).

It is a well-settled rule that a trustee can make no profit out of his trust. The rule in such cases springs from his duty to protect the interests of the estate, and not to permit his personal interest to in any wise conflict with his duty in that respect. The intention is to provide against any possible selfish interest exercising an influence which can interfere with the faithful discharge of the duty which is owing in a fiduciary capacity. "It therefore prohibits a party from purchasing on his own account that which his duty or trust required him to sell on account of another, [120] and from purchasing on account of another that which he sells on his own account. In effect, he is not allowed to unite the two opposite characters of buyer and seller, because his interests, when he is the seller or buyer on his own account, are directly conflicting with those of the person on whose account he buys or sells." Michoud v. Girod, 4 How. 503, 555, 11 L. ed. 1076, 1099.

It makes no difference that the estate was not a loser in the transaction, or that the commission was no more than the services were reasonably worth. It is the relation of the trustee to the estate which prevents his dealing in such way as to make a personal profit for himself. The findings show that the firm of which Mr. Drury was a member, in making the loans evidenced by these notes, was allowed a commission of 1 to 2 per cent. This profit was in fact realized when the notes were turned over to the estate at face value and accrued interest. The value of the notes when they were turned over depended on the responsibility and security back of them. When the notes were sold to the estate it took the risk of payment without loss. While no wrong was intended, and none was in fact done to the estate, we think nevertheless that upon the principles governing the duty of a trustee, the contention that this profit could not be taken by Mr. Drury, owing to his relation to the estate, should have been sustained.

We find no other error in the proceedings of the Court of Appeals, but for the reason last stated, its decision must be reversed, and the cause remanded to that court with directions to remand the cause to the Supreme Court of the District of Columbia for further proceedings in accordance with this opinion.

Reversed.

COMPANY, Appt.,

V.

CITY OF ОМАНА.

(See S. C. Reporter's ed. 121–132.)

Constitutional law

due process of law requiring construction of viaduct by railway company.

1. A railway company may, consistently with due process of law, be required by the state, or by a duly authorized municipality acting under its authority, to construct overhead crossings or viaducts at its own expense, the consequent cost to the company being, as a matter of law, damnum absque injuria, or deemed to be compensated by the public benefit which the company is supposed to share.

[For other cases, see Constitutional Law, 458466, 862-864, in Digest Sup. Ct. 1908.] Courts relation to legislative department- police power.

better grades in crossing thereon, and not to make a crossing for a proposed boulevard thereafter to be laid out, will not be lightly disturbed by the Federal Supreme Court.

[For other cases, see Appeal and Error, 49314959, in Digest Sup. Ct. 1908] Constitutional law — due process of law requiring construction of viaduct by railway company.

5. A municipal ordinance adopted by legislative authority requiring a railway company to construct at its own expense a viaduct over its tracks at a street crossing is not wanting in due process of law because such viaduct is to be built along one side of the street only, leaving the other side still open to public traffic.

[For other cases, see Constitutional Law, 458-466, 862-864, in Digest Sup. Ct. 1908.] Appeal — review of facts -concurrent findings below.

6. The Federal Supreme Court will not lower courts that the plans and specifications of a viaduct at a street crossing which a municipality has ordered a railway company to construct at its own expense were sufficient to enable the railway company to know what it had to do, and to make the structure required of it.

ac

[For other cases, see Courts, I. e, 3, b, in Digest Sup. Ct. 1908.] Constitutional law due process of law - requiring construction of viaduct by railway company.

3. The entire cost of constructing a viaduct over the tracks of a railway company at a street crossing may, consistently with

due process of law, be imposed upon the railway company by a duly authorized municipality acting under state authority, although the structure ordered by the city, being designed to carry the tracks of a street railway company operating in such street, will cost considerably more than a viaduct sufficient to carry the ordinary street traffic.

[For other cases. see Constitutional Law, 458-466, 862-864, in Digest Sup. Ct. 1908.] Appeal review of facts concurrent

findings.

4. The conclusions of the two courts below upon the facts that an extension of the original plan of a viaduct at a street crossing which a municipality has ordered a railway company to construct at the lat

NOTE. As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. (N.S.) 304; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L. ed. U. S. 865

For a discussion of police power generally -see notes to State v. Marshall, 1 L.R.A. 51; Re Gannon, 5 L.R.A. 359; State v. Schlemmer, 10 L.R.A. 135; Ulman v. Baltimore, 11 L.R.A. 224; Electric Improv. Co.

[For other cases, see Appeal and Error, 49314959, in Digest Sup. Ct. 1908.]

[No. 47.]

Argued November 4, 1914. Decided November 30, 1914.

PPEAL from the United States Circuit

A Court of Appeals for the Eighth Circuit to review a decree which affirmed a decree of the Circuit Court of the District of Nebraska, dismissing the bill in a suit to enjoin a municipality from requiring a railway company to construct a viaduct over its tracks at a street crossing. Affirmed.

See same case below, 117 C. C. A. 12, 197 Fed. 516.

The facts are stated in the opinion.

and Messrs. B. P. Waggener, T. L Philips, Mr. J. A. C. Kennedy argued the cause, and Martin L. Clardy filed a brief for appellant:

The court below erred in deciding that the v. San Francisco, 13 L.R.A. 131; and Barbier v. Connolly, 28 L. ed. U. S. 923.

On direct review in Federal Supreme Court of judgments of district or circuit courts-see notes to Gwin v. United States, 46 L. ed. U. S. 741, and B. Altman & Co. v. United States, 56 L. ed. U. S. 894.

On power to compel railroad to establish or maintain at its own expense overhead or underground crossing, as affected by the fact that street or highway was opened subsequently to construction of railroad-see note to State ex rel Minneapolis v. St. Paul, M. & M. R. Co. 28 L.R.A. (N.S.) 298.