Thompson v. Carmichael's Executors.

have erred in my views as to the contingency of the gift to the children, and as to the uncertainty of the persons for whose benefit the accumulation is to be made. For by the Revised Statutes, future estates in personal property, and trusts for its accumulation, are subjected to the same restrictions as similar estates and trusts in lands.

As to the bequest of the residue of the personal property to the four minor children. The sixth item of the will is a positive direction that the whole estate of the testator be kept constantly accumulating as much as can be, until the sale and division of his real estate as before provided.

This accumulation includes the personal estate.

The bequest of that estate to the children is further qualified, by the provision that it is to be paid to and distributed among them at the time of the sale and distribution of the real estate, Then the issue of the deceased children were to take the portion of their parent. The authority to the executors to apply. the personal property towards building on the real estate, tends the more effectually to suspend its absolute disposal.

Taken together, the will directs all the personal estate except what is used in building and improving the lands, to be accumulated until the time fixed for dividing the lands, and then to be divided among the children and their issue. When the eldest child shall become of full age, he cannot alien or bequeath the fourth part of the personal property, because if he should die before the youngest becomes of age, that fourth part goes to his issue, who take under the will, and not from him. So of the second and the third child of the testator. And until the youngest of the four children becomes of full age, which may be after the death of two of the elder children, the ownership of the residue of the personalty will not be ascertained so that it can be absolutely disposed of.

The personal estate is therefore in the same situation in this respect, as the lands devised; and as I have already stated, the will suspends the power of aliening the lands beyond the limits prescribed by law.

The same limitation is imposed upon the suspension of the

Rapalje v. Norsworthy's Executors.

absolute ownership of personal property. (1 Rev. Stat. 773, i 1.) And the bequest of the personalty under this will must be avoided with the devise of the lands.

The provision for the widow is a charge upon the real estate in the hands of the heirs, for which suitable protection must be afforded by the decree.

The complainants are entitled to a decree accordingly, with the usual reference to a master in partition causes.

RAPALJE V. HALL and others, Executors of NORSWORTHY.

A trustee is not to pay interest, solely for the reason that he deposites the trust monies indiscriminately with his own; nor because he makes use of them in his own business. There must be superadded, a breach of trust; a neglect or refusal to invest the fund, at the time, or in the mode, which the trust instrument, or the law itself, has pointed out.

A testator directed his executors and trustees to pay over to the testamentary guardians of his children, the net income of his estate from year to year, and that the guardians should put at interest on good real security, the surplus of the income. There was a surplus income belonging to C., one of the children, at the end of each year for twelve years, amounting to from $200 to $700 annually. The principal guardian, (who was also an executor,) mingled the surplus monies with his own, and used them a part of the time in his business as a merchant. No investment was made during the whole period.

The guardian was decreed to pay interest at the legal rate, from each period when the surplus income accumulated to $1000.

Not expecting to pay interest, the guardian had omitted to charge commissions. He was allowed his commissions by the decree.

The income came to the hands of the executors at various periods of the year from February onward, and was paid over to the principal guardian in December. Held, that being an executor also, he should not be permitted in the accounting, to retain without interest, from any sum of $1000, accumulated as before directed, for advances for his ward during the ensuing year.

A guardian exhibited his books of account to his ward from year to year, and also when she became of age, and at that time made a statement showing the balance due to her. A similar paper was made showing the balance the next year. No formal account was delivered to her, nor did she examine the particulars of the accounts in the books. Held, that she was entitled to an account of the whole trust. March 18; June 1, 1844.

Rapalje v. Norsworthy's Executors.

THE bill was filed by Silas M. Stilwell and Caroline Norsworthy his wife, and Silvanus Rapalje, the trustee of Mrs. Stilwell under a marriage settlement, for an account of her share of the personal estate, and of the rents and profits of the real estate of her father, Samuel Nors worthy, deceased. The defendants were his executors, and two of them were testamentary guardians.

The testator died on the 26th of December, 1828, leaving a widow and eight children, the latter being all minors.

By his will, he directed his personal property, except his furniture, to be put at interest on good real security, and he devised the same, and all his real estate to his executors in trust, to receive the income, rents and profits, till his youngest child became of age, to pay one-third of the same to his widow for life, and appropriate the residue equally among his children. He appointed his wife, and William B. and Burtis Skidmore, to be the guardians of the persons and property of his children during their minority, and directed them to put at interest on security on real property, such portion of the income of his children during their minority, as might not, in the guardian's opinion, be necessary for their education, maintenance and support.

The two Skidmores, James Hall and Andrew L. Halstead, were the executors named in the will, and all of them assumed the trust.

The management of the estate however devolved upon the Messrs. Skidmore, who were also the acting guardians. The widow never intermeddled with the property.

The youngest child of the testator was twenty years when the bill was filed.

of

age

Three of the children died intestate and without issue, prior to Caroline's becoming of age, which was on the 9th of January, 1841. She was married to Mr. Stilwell on the 8th of September, 1842.

The testator's personal estate was more than $23,000, and he left a large and productive real estate. The income of the estate increased steadily from the time of his death until 1839, when

Rapalje v. Norsworthy's Executors.

it amounted to $15,000 a year, and has continued at that rate since.

The answer stated that in January, 1841, after Caroline became 21, she requested W. B. Skidmore, to settle his account as her guardian; and they thereupon settled, and ascertained that $4400 68 was her due, and he offered to pay it to her. She asked him to keep and invest it, and he agreed to keep it and pay her interest on $4000 until it was invested. On the 1st of January, 1842, at her request, he rendered to her a further account stated in writing, showing $5133 C2 due, and made a like offer to pay; she requested him to keep the amount to invest, and he consented, but declined to agree to pay any interest. On the 26th of May, 1842, he rendered another account in writing, and they settled to that time. He had before procured for her a bond and mortgage of $2000. At that time he agreed to pay interest on the balance, which was $2886 02.

It appeared by the evidence, that no formal account was rendered to Miss Norsworthy. The books of W. B. Skidmore were exhibited to her in his office, and she looked at them cursorily, and the result or balance as he stated it, was handed to her, or to some person for her, in writing. It did not appear that she had ever examined the items of the accounts entered in the books.

The net rents of the property, in the usual course of managing the estate, were paid over by the executors annually to W. B. Skidmore as guardian, in the month of December.

The bill charged that there was at the end of each year, a considerable surplus, which the guardians ought to have invested; that the defendants mingled the monies of the estate with their own and used them constantly in their business, and that they ought to pay interest on the yearly surplus sums.

The answer admitted that no separate bank account was kept, but denied that the money was constantly used in their business. It insisted that the balances were too small to invest on real security, and the inflated valuations of real estate made such investments hazardous. The answer stated that the guardian, W. B. S., was the uncle of Miss Norsworthy; he had charged her no commissions, and ought not to pay her interest.

Rapalje v. Norsworthy's Executors.

The accounts of each ward had been kept separately and accurately, and the guardians had always sufficient funds on hand to pay the balance due to her, at any hour. The yearly balance in the hands of W. B. Skidmore, was thus stated in the answer.

Two witnesses for the defendants testified that it was difficult to loan small sums on bond and mortgage; and there is a scarcity of applicants for such loans.

J. L. Mason and D. B. Tallmadge, for the complainants.

Alex. S. Johnson, for the defendants.

THE ASSISTANT VICE-CHANCELLOR.-There is no such settlement of the accounts of the trustees, or of W. B. Skidmore, as guardian, established by the evidence, as to preclude the complainants from having the accounts taken in this suit.

If the statement in the answer were proved, and moreover, a release were shown to have been executed by Mrs. Stilwell in January, 1841, the court, on very slight suspicion of error in the accounts, would have opened the whole. Mrs. S. became of full age in that month, and a settlement made then with her uncle and principal guardian, without the presence of counsel, or even a disinterested friend, would have been regarded with great distrust by a court of equity.

There is no pretence, however, that Mrs. Stilwell ever did look into the accounts at large, not even of her own share of the income and her own expenses, much less the general accounts of the estate. And the delivery by Mr. Skidmore of a mere slip of paper, specifying a balance due to her in a gross