[Foscue v. Lyon.] trustee, received the amount of the legacy from the testator's executors, and failed to invest it according to the directions of the will; that he failed to collect and pay over the annual interest, as he ought to have done; that he had no authority to invest any portion of the trust funds in the purchase of lands, as he claimed to have done, and that the trust estate was greatly injured by his neglect, mismanagement, and violation of official duty; and the complainants insisted that they were not bound to accept the lands as any part of the trust estate. By a petition, subsequently filed, the complainants asked the appointment of a receiver, to take charge of the trust estate, and also of the lands, with power to lease or rent them; and a receiver was appointed without objection. The defendant filed an answer, denying all the charges of negligence, waste, or other misconduct; giving a full history and statement of all his acts in relation to the trust estate, explaining and justifying them. He alleged that, in receiving the note of G. Breitling from the executors, he acted under the verbal directions of the testator himself, given a few days before his death; and that his purchase of the "Calhoun place," at the sale under the mortgage given by Jones, was necessary to save the debt due from said Jones to the trust estate, He alleged that, in the numerous and complicated transactions connected with the trust estate during the war, some mistakes had occurred through accident or inadvertence, which he asked might be corrected; and he specified particularly the allowance of one year's interest more than was due on the Breitling note when he received it from the executors, and that he had charged himself with interest on the testamentary trust fund from the time of the testator's death, whereas interest was only chargeable eighteen months after his death. He also filed a cross bill, in which he repeated these statements, and further alleged that Mrs. Foscue had been fully informed of all his acts in connection with the Breitling note and the "Calhoun place," and had approved and ratified them; also, that he had paid and advanced to Mrs. Foscue, at different times, more than she was entitled to receive on account of the interest of the trust fund, and that she had invested some of these moneys in the purchase of a house and lot in Demopolis; and further, that he made these advancements and payments on the faith of her promise that he should be refunded any excess out of the trust estate. The of the cross prayer bill was, that an account might be taken of the trust fund, charging the trustee only with the amount which he had actually collected on account of the legacy, or which by due diligence he might [Foscue v. Lyon.] have collected; that the legacy might be abated, pro tanto, on account of the loss of all the slaves belonging to the estate, and the great loss and diminution in value of all other kinds of property by the war; that the "Calhoun place" might be received and treated as a part of the trust estate; and that any over-payment which he might have made to Mrs. Foscue might be made good to him out of her interest in the trust estate, or out of the house and lot in Demopolis. The cause was submitted for final decree, on pleadings and proof, at the June term, 1875, when the chancellor held and decreed-1st, that the complainants were entitled to an account of the trust estate at the hands of the trustee; 2d, that the trustee was authorized, "by the terms of the trust,' to receive the note of Breitling from the executors in payment or satisfaction of the pecuniary legacy; 3d, that in the purchase of the "Calhoun place," under the facts disclosed by the evidence, in the name of the beneficiaries, and for their benefit, the trustee acted in good faith, and within the scope of his powers as trustee, and the purchase was ratified; 4th, that interest on the legacy did not begin to run until the lapse of eighteen months from the testator's death; and, 5th, that an account of the trust fund should be taken and stated by the register, as master, on the principles settled by the opinion filed in the case. From this decree the complainants in the original bill appeal, and here assign as error-1st, the overruling of several objections on their part to interrogatories to witnesses, as to the testator's verbal instructions to the trustee to receive the note on Breitling in payment of the legacy to Mrs. Foscue and her children; 2d, that part of the decree which declared that the trustee was authorized to receive the note on Breitling in payment of the legacy; 3d, that part which ratified the purchase of the "Calhoun place" by the trustee; and, 4th, that part which held that the trustee was only liable for interest on the legacy from the lapse of eighteen months after the testator's death. In stating the account under the order of reference, the register ascertained that the trustee had made over-payments to Mrs. Foscue, amounting to more than $14,000, and that over $13,000 of this sum was due from him to her children, on account of the trust fund. Before the register made his report under the reference, the trustee filed a "supplemental cross bill in the nature of a bill of review," stating the result of the master's account under the reference, with the other material facts above stated, and asking that a lien be declared in his favor, for the amount of these over-payments, on the [Foscue v. Lyon.] house and lot in Demopolis, and on Mrs. Foscue's interest in the trust property in the hands of the receiver; and that she be enjoined from collecting, and the trustee from paying to her, any interest on the trust fund, or rents and profits of the trust property in his hands, until this amount was refunded to the trustee. The chancellor overruled a demurrer to this supplemental cross bill, and also refused to dissolve the injunction granted under it on the coming in of the answer. From this decree an appeal is also taken by Mrs. Foscue, and it is here assigned as error. EUGENE MCCAA, and W. W. DUGGER, for appellants.-1. The bequest for the benefit of Mrs. Foscue and her children was a general pecuniary legacy, and no parol instructions of the testator could be received to change its character, or to relieve the trustee from liability for his failure to collect it in money.-Nichols v. Osborne, 2 P. Wms. 421; 2 Vesey & B. 318; 2 Grattan, 280; 2 Atk. 372; 3 P. Wms. 354; 1 Yeates, 437. To receive such parol evidence would be, pro tanto, a revocation of the will.-14 Gray, 114. 2. The trustee was himself one of the executors. He had no authority to receive any thing but money in payment of the legacy. His letters to Mrs. Foscue admit that he had received it, and his conduct estops him from denying that he had received it.-18 Conn. 138; 20 Conn. 563; 25 Conn. 118; 26 Vermont, 366; 7 Ohio St. 105; 3 Hill, 221; 37 Mis. 207; 12 Barb. 135; 33 Penn. St. 316; 13 Ser. & R. 304; 1 Metc. 193; 9 Cal. 204; 6 Mich. 76; 27 N. H. 503; 37 N. H. 65. 3. The terms of the trust were imperative. It was the duty of the trustee to collect the fund, and to invest it in safe bonds, or lend it out on good security. He had no authority to invest it in lands, nor can he charge the trust estate with the depreciation in the value of the lands. He violated his duty in purchasing the lands, and he must himself suffer the consequences of his fault.-Miller v. Chaplin, 20 Ohio, 442; McKinley v. Irvine, 13 Ala. 681; 6 Munf. 446; 32 Ala. 433; 29 Ala. 367; Hill on Trustees, 368-72; Tiff. & Bull. 587, 633; Akerman v. Emmett, 4 Barb. 626. If he bought the lands, as he alleges, only to save a debt due to the trust estate, he was guilty of great negligence and breach of duty, when he failed to re-sell it to Selden, Siddons, or Dugger, who offered to take it off his hands soon after his purchase.-3 Myl. & Cr. 495; 2 Wms. Ex. 1637. 4. The Breitling deed of trust conveyed a large number of slaves, in addition to the lands; and the trustee was guilty of great negligence in letting them perish on his hands by the results of the war. It was, also, a neglect of duty on his [Foscue v. Lyon.] part not to collect the notes as they fell due. For these acts of negligence he should have been held liable.-Harrison v. Mock, 10 Ala. 185; Royall's Adm'r v. McKenzie, 25 Ala. 353. 5. When income or interest is bequeathed, it begins to run from the testator's death, if the fund is productive, and the estate free from debt, as was the case here.--Selleck v. French, 1 Amer. L. C. 524, note; 1 Vesey, sr. 308; 3 Atk. 102, 438; 1 Dick. 310; Carey v. Austin, 2 Bro. C. C. 58; 8 Paige, 89; 2 Wms. Ex. 1234; Amer. Law Times, February, 1874, p. 32; King v. Talbot, 40 N. Y. 76. But, whether the interest was collected by the trustee properly or improperly, he is responsible to the beneficiaries for it, since he did in fact collect it.-1 Hare, 167; 2 J. J. Mar. 203; 2 Rand. 409; 4 Mass. 208. Money voluntarily paid, through ignorance or mistake of law, with a full knowledge of all the facts, and without any fraud or imposition, can not be reclaimed, either at law, or in equity.-Town Council of Cahaba v. Burnett, 34 Ala. 402; Benson v. Monroe, 7 Cush. 125; 4 Gill, 425; 5 Gill, 244; 5 Conn. 528; 29 Ala. 233; 21 Ala. 756; 26 Ala. 413; 1 Bac. Abr. (Bouv.) 411–12. 6. The trustee should be made to pay the entire costs of the litigation, since the beneficiaries were forced to it by his action in the premises.-De Peyster v. Clarkson, 2 Wendell, 77; Bryan v. Craig, 12 Ala. 354; Bethea v. McCall, 5 Ala. 108; Garnett v. Carr, 3 Leigh, 407; Granberry v. Granberry, 1 Wash. C. C. 246; 1 Johns. Ch. 84; King v. Talbot, 40 N. Y. 83. 7. The supplemental cross bill in the nature of a bill of review, as it is called, cannot be sustained, either as a supplemental bill, or as a bill of review; and on the facts stated, it is wanting in equity and merits.-Story's Eq. Pl. $$ 404, 421-2; 3 Dan. Ch. Pr. 1729; 17 Vesey, 176; 35 Ala. 70; Montevallo Coal Co. v. Reynolds, 44 Ala. 253; 16 Texas, 432; 39 Ala. 409; 16 Ala. 274; Skyring v. Greenwood, 4 Barn. & Cr. 281; Willan v. Willan, 16 Vesey, 89; Walker v. Walker, 9 Wallace, 743; Henshaw v. Bissell, 18 Wallace, 255; 34 Vermont, 208. J. T. JONES, and WATTS & SONS, contra.-1. In taking the Breitling note from the executors, in payment of the pecuniary legacy, which he was required to invest, or loan out at interest, the trustee was obeying the instructions of the testator, and, in effect, only continuing an investment which the testator himself had made. The testator had trusted Breitling; the note was amply secured, and the facts show that it was a prudent act on the part of the trustee.-Rowth v. Howell, 3 Vesey, 565; Harrison v. Mock, 10 Ala. 185. [Foscue v. Lyon.] 2. The trustee's discretionary powers were very full; and in the exercise of them, the material question is, whether he acted in good faith, and with reasonable diligence; that is, with such care, caution, and diligence, as a man of ordinary care and prudence would exercise in relation to his own affairs.-Thompson v. Brown, 4 Johns. 628; Dean v. Rathbone, 15 Ala. 334; Gould v. Hayes, 19 Ala. 438; Harrison v. Mock, 10 Ala. 185. In judging of the trustee's conduct here, the circumstances by which he was surrounded must not be overlooked; and the court will take judicial notice of the condition of the country at that time. In the midst of a protracted and exhausting war, with no opportunities for stable or profitable investments, no public stocks in the market, but little confidence in private or public securities, and all kinds of property fluctuating in value, the most prudent and skillful financier would have been greatly puzzled to make an investment of $50,000, which would have been at once safe and profitable-which would yield an annual interest, and not be liable to deterioration or loss. 3. It is not contended that the trustee had any power to convert the trust funds into land, as a permanent investment. The question is, whether he was authorized to buy the lands, under the circumstances disclosed by the evidence, in order to save a debt due to the trust estate; and this question resolves itself into another-would a court of equity, on a proper application, have authorized the purchase? Whatever a court of equity would direct a trustee to do, it will ratify and confirm, when done by him without its order.-1 Perry on Trusts, § 458; 2 Ib. § 476; Dean v. Rathbone, 15 Ala. 334; 8 Gill, 403; Cowles v. Marks, at the last term. 4. Interest on the legacy to Mrs. Foscue and her children did not begin to run, until the lapse of eighteen months from the death of the testator, or the grant of letters.-Hallett & Walker v. Allen, 13 Ala. 555; Hill on Trustees, 364; 2 Kent's Com. 417, note a; 6 John's Ch. 33; Myers v. Myers, 33 Ala. 85. Interest from the testator's death cannot be charged against the trustee, on the ground that he received it; for, in fact, he did not receive it, nor did he receive one dollar in money. In making his settlement with the executors, the amount due him was estimated, principal and interest, at $56,422.05; and he received for this the Breitling note ($45000), with the accumulated interest, which was estimated at $10,287.36; and the note of Sledge & Compton was taken to make up the residue. But, in this calculation of interest, a mistake was made of the interest for one year, $3,600; and this sum could not, of course, be collected on the Breitling note, nor was it collected. The trustee, then, cannot be |