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

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. Rep. 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 Stacpoole v. Stacpoole, 4 Dow's Rep. 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. Rep. 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, or 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's Ch. Rep. 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 of the Supreme Court of North Carolina, sitting in equity, as proper in certain cases. Fay v. Howe, 1 Pick. Rep. 527. Boynton v. Dyer, 18 Pick. 1. Hughes v. Smith, 2 Dana's K. Rep. 253. Hodge v. Hawkins, 1 Dev. & Batt. Eq. 566. Karr v. Karr, 6 Dana's K. Rep. 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's Rep. 309, and especially in the elaborate review of the doctrine in the case of Peter M'Call, 1 Ashmead's Rep. 357.1 Compound interest, in any case of the

1 So in Dietterich v. Heft, 5 Barr's R. 87. Bryant v. Craig, 12 Ala. R. 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.

limitations prescribed, there is to be a meeting of the family (conseil de famille) for the nomination of a guardian. 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 would be 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's Rep. 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 execu tor, 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, in 1 Russ. 141, Lord Gifford, the master of the rolls, held differently, and that the trustees were answerable 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 Beav. 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.1

285. Jones v. Foxall, 13 E. L. & Eq. 140. In Knott v. Cottee, 18 E. L. & Eq. 304, an executor was charged with annual rests, because by the 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.

1 That precedent was also adopted in Rees v. Williams, 1 De G. & Sm. 314. While Ames v. Parkinson, 7 Beav. 379, and Ouseley v. Anstruther, 10 Beav. 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

family council is composed of six relations, half from the paternal and half from the maternal line, and the provision is very specific in its details. This provision has been incorporated, with some small variations, into the civil code of Louisiana. (a)

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

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.

LECTURE XXXI.

OF INFANTS.

(1.) When of age.

THE necessity of guardians results from the inability of infants to take care of themselves; and this inability continues, in contemplation of law, until the infant has attained the age of twenty-one years. The age of twenty-one is the period of majority for both sexes, according to the English common law, and that age is completed on the beginning of the day preceding the anniversary of the person's birth. (a) The age of twentyone is probably the period of absolute majority throughout the United States, though female infants, in some of them, have enlarged capacity to act at the age of eighteen. In Vermont and Ohio, females are deemed of age at the age of eighteen. (b) Louisiana follows in this respect the common-law period of limitation, though entire majority by the civil law, as to females as well as males, was not until the age of twenty-five; and Spain and Holland follow, as to males, the rule of the civil law. (c) By the French civil code, the age of full capacity is

(a) Anon. 1 Salk. 44. 1 Ld. Raym. 480. Sir Robert Howard's case, 2 Salk. Rep. 625. Hamlin v. Stevenson, 4 Dana's Kentucky Rep. 597. State v. Clarke, 3 Harr. Del. R. 557.

(b) 9 Vermont Rep. 42, 79.

(c) Inst. 1, 23. Partidas on Obligations, 5, 11, 5. Institutes of the Civil Law of Spain, b. 1, tit. 1, ch. 1, sec. 3. Institutes of the Laws of Holland, by Vanderlinden, b. 1, ch. 5, sec. 7. Code Civil, art. 388, 488. 1 Toullier, p. 153. Civil Code of Louisiana, art. 41, 93. The law of the domicil of birth governs the state and condition of the minor, into whatever country he removes, and his minority ceases at the period fixed by those laws for his majority. Barrera v. Alpuente, 18 Martin's Louisiana Rep. 69. This is the rule, as understood by many continental civilians. A person being a minor, or of majority by the law of his native domicil, carries that condition with him wherever he goes. Huberus, lib. 1, tit. 3, sec. 12. See, also, Boullenois and others, cited in Story on the Conflict of Laws, § 76, et seq. But this rule is to be

twenty-one years, except that twenty-five years is the majority for contracting marriage without paternal consent by the male, and twenty-one by the female. Code Civil, sec. 145, 488. Nor can infants do any act to the injury of their property, which they may not avoid or rescind when they arrive at full age. The responsibility of infants for crimes by them com234 mitted, depends less on their *age than on the extent of their discretion and capacity to discern right and wrong.

(2.) Acts void or voidable.

Most of the acts of infants are voidable only, and not absolutely void; and it is deemed sufficient, if the infant be allowed, when he attains maturity, the privilege to affirm or avoid, in his discretion, his acts done and contracts made in infancy. But when we attempt to ascertain from the books the precise line of distinction between void and voidable acts, and between the cases which require some act to affirm a contract, in order to make it good, and some act to disaffirm it, in order to get rid of its operation, we meet with much contradiction and confusion. A late writer, who has compiled a professed treatise on the law of infancy, concludes, from a review of the cases, that the only safe criterion by which we can ascertain whether the act of an infant be void or voidable is, "that acts which are capable of being legally ratified, are voidable only; and acts which are incapable of being legally ratified, are absolutely void." (a) But

taken with very important qualifications. The state and condition of the persons, according to the law of his domicil, will generally, though not universally, be regarded in other countries as to acts done, or rights acquired, or contracts made, in the place of his native domicil; but as to acts, rights, and contracts done, acquired or made out of his native domicil, the lex loci will generally govern in respect to his capacity and condition. If, for instance, a person be a minor by the law of his domicil until the age of twenty-five, yet, in another country, where twenty-one is the age of majority, he may, on attaining that age, make in such other country a valid contract. Male v. Roberts, 3 Esp. Rep. 163. Thompson v. Ketcham, 8 Johns. Rep. 189. Story on the Conflict of Laws, pp. 96, 97, 364. Saul v. His Creditors, 17 Martin's Louisiana Rep. 597. Burge's Com. on Colonial and Foreign Laws, vol. i. 103-134. In respect to the control of real property, the law of the domicil yields to the lex rei sitæ. This is an acknowledged and universal principle. The continental authorities are cited numerously and at large in the last work above mentioned, on the subject of minors and the law of majority.

(a) Bingham on Infancy, 45.

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