It is said that the latter power may be exercised by a guardian or trustee, in a clear and strong case, without the previous order of a court of equity; but the infant, when he arrives at full age, will be entitled, at his election, to take the land or the money, with interest; and if he elects the latter, chancery will take care that justice be done, by considering the ward as trustee for the guardian of the lands standing in his name, and will direct the ward to convey. (d) And if the guardian puts the ward's

9

question, whether the testator meant to give to the produce of real estate the quality of personalty to all intents, or only so far as respected the particular purposes of the will. Unless the first purpose be clearly declared, then so much of the real estate, or the produce thereof, as is not effectually disposed of by the will, or wanted for the purpose of it, results to the heir at law. Cruse v. Barley, 3 P. Wms. 20, Mr. Cox's note thereto. Digby v. Legard, cited in the note of Mr. Cox. Ackroyd v. Smithson, 1 Bro. C. C. 503, and Lord Eldon's argument in that case. Amphlett v. Parke, 2 Russ. & My. 221. Wright v. Trustees of Meth. Ep. Church, 1 Hoff. Ch. 218-222. In this last case the authorities are all collected and examined with ability and learning. So, on the other hand, in Cogan v. Stevens, decided by Sir Christopher Pepys, the master of the rolls, in November, 1835, and reported in Appendix No. 7 to Lewin on Trusts. It seems to be equally settled, by the powerful decision in that case, that where the testator directs money to be invested in land for certain purposes, some of which are lawful and take effect, and others fail and become void, the property so given, after satisfying the lawful purposes, belongs to the next of kin and not to the heir. This whole doctrine of constructive conversion is fully discussed, and the cases well examined and digested in Jarman on Wills, vol. i. ch. 19, Boston edit. 1845, edited by J. C. Perkins Esq.

(d) Caplinger v. Stokes, Meigs (Tenn.) 175. Eckford v. De Kay, 8 Paige, 89. That such a power might be exercised without a previous authority was intimated in 2 Eden, 143, 152, and Amb. 419; and it was allowed and sustained afterwards by the Supreme Court of Pennsylvania, in 1 Rawle, 266. But it is an extremely perilous act in a trustee, and cannot be recommended. The Court of Chancery itself has no inherent original jurisdiction to direct the sale of the real estate of an infant. The power is derived entirely from statute. Taylor v. Phillips, 2 Vesey, 23. Russell v. Russell, 1 Molloy, 525. Rogers v. Dill, 6 Hill (N. Y.) 415. In Virginia, the guardian cannot apply any part of the principal of the infant's estate to his education or support, without the previous consent of the court appointing him. Myers v. Wade, 6 Rand. 444.10 A court of chancery may, in its discretion, appropriate the capital of the ward, and apply it for maintenance; but the guardian does it, without such order, at his peril. Long v. Norcom, 2 Ired. Eq. (N. C.) 354. In re Lane, 17 E. L. & Eq. 162. Vide supra, p. 193, n. c. If a mother has maintained her infant child without the order of the court, she will be entitled only to a liberal indemnity for what she has expended, without refer

Lands devised to executors, to be sold at their discretion as to time, are not converted until sold. Christler v. Meddis, 6 B. Mon. 35. Haggard v. Rout's Heirs, Ibid. 247.

* If a guardian advances his own money to erect buildings on his ward's land, without the order of a court, he cannot recover the amount from his ward. Hassard v. Rowe, 11 Barb. (N. Y.) 24. See White v. Parker, 8 Barb. (N. Y.) 48; Sherry v. Sansberry, 4 Ind. 320. 10 Austin v. Lamar, 23 Miss. 189. Brown v. Mullins, 24 Miss. 204.

*

money in trade, the ward will be equally entitled to elect to take the profits of the trade, or the principal with compound interest, to meet those profits when the guardian will not disclose them. (e) So, if he neglects to put the ward's money at interest, but *231 negligently, and for an unreasonable time, suffers it to lie idle, or mingles it with his own, the court will charge him with simple interest, and in cases of gross delinquency, with compound interest. These principles are understood to be well established in the English equity system, and they apply to trustees of every kind; (a) and the principal authorities upon which they rest, were collected and reviewed in the chancery decisions in New York, to which it will be sufficient to refer, as they have recognized the same doctrine. (b) Those doctrines, with some exceptions, pervade the jurisprudence of the United States. (c)1

ence to the amount of his fortune, though if the court be applied to for a prospective allowance, regard may be had to his fortune. Bruin v. Knott, in Ch. by Lord Lyndhurst, 1845. It is the general statute law throughout the United States that the lands of infants may be sold, when their interest or that of others requires it, in the opinion of the courts having jurisdiction of the subject. The guardian is the proper person to apply for the authority, and to exercise it. Statute law of Kentucky of 1813. R. L of N. Y. vol. ii. 194. Prince's Dig. of Laws of Georgia, 1837, pp. 243, 248, 250. Massachusetts Revised Statutes of 1836, part 2, tit. 5, ch. 71, 72. Ibid. ch. 79.

(e) Docker v. Somes, 2 My. & K. 665, and notes c and d below.

(a) They have been applied to a sheriff who kept money in the hands of his banker for years, without color of right. The King v. Villers, 11 Price, 575.

(b) Green v. Winter, 1 Johns. Ch. 26. Dunscomb v. Dunscomb, Ibid. 508. Schieffelin v. Stewart, Ibid. 620. Holridge v. Gillespie, 2 Johns. Ch. 30. Davoue v. Fanning, Ibid. 252. Smith v. Smith, 4 Johns. Ch. 281. Evertson v. Tappen, 5 Johns. Ch. 497. Clarkson v. De Peyster, Hopk. 424. Rogers v. Rogers, Ibid. 515. The principle on which interest is charged, as against trustees who neglect to invest trust moneys, or unduly misapply them, and the authorities, both in England and in the Roman jurisprudence, in which the justice and policy of the rule are explained and enforced, are referred to and discussed by the district judge of the U. S. in Maine, in the matter of Thorp, N. Y. Legal Observer for October, 1846, (vol. 4, p. 377.)

(c) Reeve's Domestic Relations, 325, 326. 2 N. Hamp. 218. 1 Mason, 345. 5 Conn. 475. Fox v. Wilcocks, 1 Binney, 194. 3 Desaus. 241. 4 Desaus. 702-705. Ringgold v. Ringgold, 1 Harr. & Gill, 11. Edmonds v. Crenshaw, State Eq. Rep. S. C. 224. Turney v. Williams, 7 Yerger, 172. Karr v. Karr, 6 Dana (Ken.) 3. In this last case, compound interest, by means of periodical rests biennially, was allowed, as the guardian had suffered interest to lie idle. A guardian settled his account with an infant within a month after he came of age, and when the latter had no friend or adviser

1 Kyle v. Barnett, 17 Ala. 306; Kerr v. Laird, 27 Miss. 544; Light's Appeal, 24 Penn. 180; Biles's Appeal, Ib. 335; Lane's Appeal, Ib. 487. Six months is held a reasonable time in Worrell's Appeal, 23 Penn. 44.

In the French law, when children are orphans, and have no guardian appointed by the parents, nor by the judge within the

on his part. Account ordered to be opened, notwithstanding the vouchers had been delivered up. Revett v. Harvey, 1 Sim. & Stu. 502.2 The practice, as to allowing interest, and in strong cases compound interest against trustees, is fully discussed in Wright v. Wright, 2 M'Cord, Ch. 185. In New Jersey, guardians who omit to put the ward's money at interest, by reason of fault or negligence, are chargeable with ten per cent. interest. Revised Laws, 1779, sec. 11.

The doctrine laid down in the text, that in cases of gross delinquency as to trustmoneys, an executor or other trustee will be charged with compound interest, though just and reasonable in the cases in which it has been applied, has in some instances been rather unsparingly condemned. Let us for a moment examine its foundations. In Raphael v. Boehm, 11 Vesey, 92, 13 Ibid. 407, 590, it was applied to a case where the executor was directed, from time to time, to convert the interest into principal, and he disregarded the direction to accumulate. In Schieffelin v. Stewart, 1 Johns. Ch. 620, the administrator did much worse. He employed the trust-moneys in trade for his own benefit, and refused to give an account of the profits. In the first case, the doctrine received the sanction of Lord Rosslyn, Lord Eldon, and Lord Erskine, before all of whom the cause was successively brought. The same doctrine was afterwards recognized by Lord Eldon, in Ex parte Baker, 18 Vesey, 246, and enforced by the House of Lords on appeal, in the opinion delivered by Lord Redesdale, in Stackpoole v. Stackpoole, 4 Dow, 209. The only case in the English courts in which the doctrine has been directly questioned and condemned, is that of Tebbs v. Carpenter, 1 Madd. Ch. 290. The vice-chancellor in that case only refused to apply it to the fact of negligence in the executor, and he admitted that a distinction ought to be taken between negligence and misfeasance and corruption. In this country, I may only allude to the case already mentioned in the New York chancery, and I would then observe that the rule was very well discussed so late as 1820, in South Carolina, by Judge Nott, in giving the opinion of the Court of Appeals in Wright v. Wright, 2 M'Cord, 185. He admitted, and Chancellor Desaussure declared, that the general rule in South Carolina was against allowing rests and compound interests against trustees. He said, however, that some cases would require it, though it might be difficult to draw with precision a line of distinction between those cases in which the rule should and should not apply. He approved of its application as just and proper, in the two cases of Raphael v. Boehm, and Schieffelin v. Stewart, and he thought that the cases in which compound interest was to be charged against trustees for abuse of trust, were rather exceptions to a general rule than parts of one. So, in Ringgold v. Ringgold, 1 Harr. & Gill, 11, and Diffenderffer v. Winder, 3 G. & J. 311, (S. C. Raymond's Digested Chancery Cases, 363,) compound interest was allowed in the Court of Appeals in Maryland, where a trustee speculated with the trust funds, and endeavored to stifle inquiry; and in another case, where he was directed to invest funds, and receive dividends, and accumulate the fund, and when he had disregarded that duty, and applied the funds to his own use. It has also received the sanction of the Court of Appeals in Kentucky, of the Supreme Court of Massachusetts, and

* McClellan v. Kennedy, 8 Md. 230. Sullivan v. Blackwell, 28 Miss. (6 Cush.) 737.

* Ker's Adm. v. Snead, (Circuit C. of Virginia,) Law Reporter, Sept. 1848, vol. 11. p. 217. In the learned opinion of Mr. Justice Scarburgh in this case, the authorities are very fully examined, and he concludes that a trustee cannot be charged compound interest, merely because he has mingled the trust funds with and used them as his own.

limitations prescribed, there is to be a meeting of the family (conseil de famille) for the nomination of a guardian. The family council is composed of six relations, half from the paternal and half from the maternal line, and the provision is very specific in

of the Supreme Court of North Carolina, sitting in equity, as proper in certain cases. Fay v. Howe, 1 Pick. 527. Boynton v. Dyer, 18 Pick. 1. Hughes v. Smith, 2 Dana (Ken.) 253. Hodge v. Hawkins, 1 Dev. & Batt. Eq. 566. Karr v. Karr, 6 Dana, 3. The principle on which the allowance of compound interest has been made, even in cases in which it has been allowed, would seem to be condemned in Pennsylvania, in the recent case of English v. Harvey, 2 Rawle, 309, and especially in the elaborate review of the doctrine in the case of Peter M'Call, 1 Ashmead, 357. Compound interest, in any case of the kind, is regarded as too severe and penal upon defaulting trustees, and as being only imperfectly sustained by authority. It appears to me, on the other hand, that authority, both foreign and domestic, and the reason of the thing, preponderate alike in favor of the allowance under the limitations stated, and that the total abandonment of the rule would operate, in many cases, most unjustly, as respects the right of the cestui que trust, and would introduce a lax discipline that would be dangerous to the vigilant and faithful administration of trust estates. It be would tempting trustees to keep in hand, for their own speculation and profit, the interest moneys of others without interest, contrary to their duty. If a trustee might go and trade with trust-moneys, and make no account of the profits, and without any other penalty than the payment of simple interest, without annual rests, on the capital so corruptly perverted, the temptation to abuse would be irresistible. Such men ought to be dealt with by the plain but wholesome rules of Lord Eldon; and the legal responsibilities of trustees, as laid down in the text, is correctly stated. This doctrine has recently received the powerful sanction of the Supreme Court of Pennsylvania, in the opinion delivered by the chief justice, in the case of Harland's Accounts, 5 Rawle, 329. The cases, both foreign and domestic, are, in this opinion, examined, and the argument in favor of the allowance of annual rests, or compound interest, when the trustee, be he executor, administrator, guardian, or other trustee, grossly disregards his duty, is conclusively stated, and it applies to those cases in which such an allowance becomes necessary to place the cestui que trust in the condition in which a conscientious discharge of the trust would have placed him. See infra, p. 630, note. In the English equity court it seems to be unsettled what shall be the mode and extent of the responsibility of trustees, where they are directed to invest trust-moneys in the public stocks or in real security and they do neither. Sir John Leach, the vice-chancellor, in Marsh v. Hunter, Madd. & Gel. 295, held, that they should be answerable for the principal money only, and not for the amount of stock which might have been purchased. But in Hockley v. Bantock, 1 Russ. 141, Lord Gifford, the master of the rolls, held differently, and that the trustees were answerable

So in Dietterich v. Heft, 5 Barr, 87. Bryant v. Craig, 12 Ala. 354. Compound interest is well charged against a trustee who has grossly and wilfully neglected his trust, used the trust-money in his own business, or omitted fraudulently to give account of profits. Barney v. Saunders, 16 How. U. S. 535, 542. Swindall v. Swindall, 8 Ired. Eq. 285. Jones v. Foxall, 13 E. L. & Eq. 140. In Knott v. Cottee, 13 E. L. & Eq. 304, an executor was charged with annual rests, because by terms of the trust, which he had neglected to perform, he was distinctly required to accumulate the fund at compound interest. For a mere neglect to invest, simple interest only is generally imposed. Barney v. Saunders, 16 How. U. S. 535. Light's Appeal, 24 Penn. 180. And see Kenan v. Carter, 8 Geo. 417; Greening v. Fox, 12 B. Mon. 187; Bentley v. Shreve, 2 Maryl. Ch. 215; Pettus v. Clawson, 4 Rich. Eq. 92.

its details. This provision has been incorporated, with some small variations, into the civil code of Louisiana. (d)

in a way the most beneficial to the cestui que trust, and at his option, either for the money or the stock which might have been purchased. Lord Langdale, the master of the rolls, in Watts v. Girdlestone, 6 Beavan, 188, adopted the same principle of compensation. But, again, in Shepherd v. Mouls, 4 Hare, 500, Sir James Wigram, the vice-chancellor, adopted the precedent established by Sir John Leach, in Marsh v. Hunter.5

(d) Code Civil, book 1, tit. 10 Civil Code of Louisiana, art. 288, &c.

That precedent was also adopted in Rees v. Williams, 1 De G. & Sm. 314; while Ames v. Parkinson, 7 Beavan, 379, and Ouseley v. Anstruther, 10 Beavan, 453, followed the rule in Hockley v. Bantock. In a late case, in the Court of Chancery, upon a review of the former decisions, Lord Cranworth held, that inasmuch as in such cases the cestui que trust has not the right to compel the purchase of the stocks, he shall not be permitted to elect between these and the principal money, but that the trustees shall be charged only with the money and interest. Robinson v. Robinson, 9 E. L. & Eq. 69.