Tbis was a civil action involving tbe settlement of wbat is termed in tbe record tbe “Love estate.” Pending tbe proceedings, on motion of Hon. R. D. Gilmer, trustee of funds belonging to tbe estate arising from sale of certain lands in Haywood, Jackson, and adjoining counties, report was made and, on exceptions filed, tbe questions involved were referred by order of court to M. W. Bell, Esq., wbo beard testimony and made report containing bis findings of fact and conclusions of law in tbe case. Exceptions having been made to tbis report, present judgment was entered at January Term, 1911, and tbe trustee, as stated, excepted and appealed.
Tbe objections' made to tbe validity of tbe judgment are, first, tbat tbe trustee is charged with tbe sum of $669.30 commissions heretofore retained by him on a sale of certain lands in Jackson County made in tbe year 1900 under and.by virtue of a written agreement as to fees, bad and made between tbe trustee and two of tbe beneficiaries of tbe estate with tbe sanction of a majority of tbe cestui que trusts in 1894. Tbis item was no doubt charged against tbe trustee for tbe reason tbat under another agreement entered into between all tbe parties of record on 30 June, 1908, subsequent to tbe one before men*574tioned, it was stipulated tbat tbe trustee should receive the sum of $6,500 in full for all services since 1898, and might retain all amounts allowed him for services before that time. The sale under which this charge is made took place, as stated, in 1900, and the commissions therefore are covered by agreement for $6,500, and was therefore not a proper charge.
It is claimed for the trustee that this objection is not open, because the parties had also agreed that the report filed by the trustee, in which this item appeared as a proper credit, should be taken as correct, but we do not think this a correct position. The agreement in the particulars referred to expressly states that the report of the referee “is to be considered as correct as to all debts and credits that have passed through the hands of said Gilmer, except as modified by this agreement as to charges for services rendered by said Gilmer.”
The objection, therefore, was open to the appellees by the express provisions of the agreeement.
Again, it was objected that the trustee had been credited only with the sum of $5,500 as the amount properly paid by him to the heirs of William Welch, .whereas the facts showed that the trustee paid these heirs the sum of' $6,174.17. The answer is that the amount due these heirs had been fixed by a decree of the court made in the cause at the sum of $5,500, and there is no authority appearing for a payment of any amount in excess of that sum.
We find nothing in the record that would justify the Court in disturbing' the conclusion reached by his Honor, and the judgment entered by him is therefore
Affirmed.