#### Allen S. Barksdale and Wife *vs.*D. L. Hall and A. J. Hall.

*Legacy*— Interest—Answer *not Evidence*— Investment.

A legacy to one child of an equal share with the other children of testator’s estate is not a pecuniary' legacy which bears interest from the end of one year after testator’s death: the interest should be carried into the common fund until apportionment is made.

On bill for account against an executor and trustee, the answer alleged that funds of the *cestui que trust,*the plaintiff, had been invested in certain bonds which the defendant *held:*— Reid, that the answer, being in avoidance, was not self-proving, and that the investment must be shown by evidence *aliunde:*— Reid, further, that the evidence adduced was insufficient to prove ■ the alleged investment.

BEFORE JOHNSON, OH., AT ANDERSON, JUNE, 1866.

The decree of his Honor, the ■ Circuit Chancellor, is as ■follows:

Johnson, Ch. This case comes before the''Court upon exceptions by the complainants to a report of the Commissioner, which is as follows: “ It having been referred to the Commissioner of this Court to ascertain and report as to the truth of the statements therein made — the gross amount of the funds of the *cestui que trust,*Martha A. Barksdale, in the hands of David L. Hall and A. J. Hall, as executors of the will of David Hall, deceased, and trustees of Martha A. Barksdale under said will, the fitness of Dr. William J. Milford and William S. Sharpe to exercise the trust prayed for, and particularly to report as to the propriety of the change of trustees, and also, whether it will be promotive of the interests of the *cestui que trust*to change the investment from personal into real estate, with leave to report any special matter — he submits: First, That *181the gross amount of the fund of the *cestui que trust,*in the hands of David L. Hall and Absalom J. Hall, as executors of the will of David Hall, deceased, and trustees of Martha A. Barksdale, under said will, was, according to returns and statement of settlement, filed in the Ordinary’s office for Anderson District, on 27th December, 1862, $2,414.04. That the sale of the property of David Hall, deceased, under the will, by his executors, was made on the 20th November, 1860, on a credit of twelve months, with interest from date. That the first return and statement alluded to above made up the account to November 20, 1861. That the interest due complainants for the first year, to wit, from 20th November, 1860, to 20th November, 1861, was added to the principal of the fund, as was done on all the shares in said estate; that her annual interest has been paid her for 1862, 1863, and 1864, as shown by her receipts. That for 1865, and down to June, 1866, she has been paid $118.75, in provisions and necessaries mainly, at fair prices, and she is from time to time receiving supplies from the trustees.

*“*In reference to the real estate devised in trust under the seventh clause of said will, it appears, from a bill and proceedings filed in this Court, in April, 1861, wherein Barksdale and wife were complainants, and said executors and trustees were defendants, that an order for sale was obtained, and the proceeds thereof paid over to Herbert Hammond, Escp, who was appointed trustee of that fund by the Court. It also appears, from the testimony before me, that the rents of that real estate for the year 1860 went into the general estate of the said David Hall, amounting to about forty dollars, and was distributed among all the heirs. This may not have been regular, but as it is so small a matter, and as no question was made in the bill and proceedings referred to, or before the Ordinary, the Commissioner would doubt the propriety of opening the *182settlement for so small a sum. So also as to the first year’s interest arising from the general estate of David Hall, deceased, which went into the principal of her share, upon which she is annually receiving her interest. The settlement before the Ordinary has been acquiesced in by all the distributees, and their several shares receipted for, except the complainants. These two matters of interest were the only matters of complaint before the Commissioner, in reference to the accounts of the executors and trustees.

“ The defendants also offered testimony as to the investment of twelve hundred dollars of this trust fund in seven per cent. Confederate bonds. It appeared from the testimony that David L. Hall, who was the acting trustee, was absent in the army of the Confederate States, from the commencement of the war to its close, with the exception of two visits home. The first was in the fall of 1862, at which time this settlement was made before the Ordinary, and again in the summer of 1863. The proof was that he sold cotton at thirty-six and a-half cents per pound, to J. J. Cunningham, and received from him, in part payment for the same, one thousand two hundred dollars in Confederate bonds; that it was suggested to him by a friend, at that time, that he might invest the trust fund in that way. A' few weeks afterwards, he said to the same friend, that he intended to apply these bonds to the trust fund. From these facts, and from the good character of the trustees, the Commissioner is satisfied that the said investment was made at that time in good faith, and in the exercise of such prudence as governed many capitalists, and should be allowed them in their accounts. The present trustees are men of high character and substantial property, and have exhibited a commendable interest in the welfare of their sister, Mrs. Barksdale, with whom they are on good terms, and the Commissioner can see no good reason why they should be removed from the trusteeship, nor is the Com*183missioner satisfied that it will promote the interest of Mrs. Barksdale or her children, to change the investment, as in his judgment, for a few years to come. A certain small allowance in money or provisions will better maintain her than the uncertain profits from such a farm as could be purchased with her funds, especially as it was proven that the husband, Allen S. Barksdale, was an improvident, litigious person, without trade or employment, or habits of industry, and living, the greater portion of his time, apart from his family.

“Eor the above reasons, the Commissioner is of the opinion, that Mrs. Barksdale and her family will be more comfortably maintained and protected by remaining in the neighborhood of her brothers, and under their supervision. If, however, the Court should see fit to change the trusteeship, the Commissioner would recommend Dr. Milford and "W. S. Sharpe as suitable and proper persons to exercise the said trust.”

Exception First. “Because the Commissioner has, contrary to the clear rights of the *cestui que trust,*thrown the rents of the land for the first year, devised to her by her father, into the general fund of the testator’s estate for distribution.”

If it be conceded that, in principle, the exception is well taken, the complainant would not be benefited by its being sustained; for in the settlement, they received a share of the rent of all the lands, of the estate of the testator, and were not charged with interest on eight hundred dollars, the estimated value of the land devised to the defendants for their benefit, which is sixteen dollars a year more than the land rented for, and which they would be entitled to charge, if they were required to pay the rent of that particular tract of land to their *cestui que trust.*The exception is therefore overruled.

Exception Second. *“*Because the Commissioner has *184erred in including in the trust fund the interest accruing'on the *cestui que trust's*portion of the estate, from November 1, 1861, instead of decreeing the same to be paid to Mrs. Martha A. Barksdale.”

The testator died on the 15th day of April,.1860. The rule of law is, that interest is to be allowed on a pecuniary legacy from the time it is payable, and if no time of payment is specified, it is at the end of a year from the testator’s death: *Smith*vs. JEady, Bich. E. 0. 379 ; *Gillonvs. Turnbull,*1 McC. Ch. 148. Fixing the 15th day of April, 1861, instead of the first day of November, 1861, as the time from which the interest is to be allowed to Mrs. Barks-dale, it becomes necessary to ascertain what was the amount of her share of the estate on that day. By deducting the interest which accumulated between the two periods, it is ascertained, that the defendants had in their hands, for their *cestui que trust,*on the 15th day of April, 1861, two thousand three hundred and seventeen dollars and eighteen cents, and that from that day she became entitled to all the accruing interest on the same. The exception to that extent is therefore sustained.

Exception Third. “ Because the Commissioner has erred in accepting the investment of twelve hundred dollars in Confederate securities, when there is no evidence to show that such an investment was ever made for the *cestvA que*trust.”

The only competent evidence before the Court respecting the matter is, that one of the defendants, in June, 1863, sold some cotton of his own, and received, in part payment for the same, twelve hundred dollars, in seven per cent. Confederate bonds, with coupons attached, payable 1st January, 1864, and at the same time it was suggested to him by J. P. Tucker “that he could invest the money in seven per cent. Confederate coupon bonds, to be applied to this trust fund,” to which he made no reply. And on the reference *185before tbe Commissioner, just before tbe trial of tbe case, the said bonds were produced as twelve hundred dollars of the trust fund, with all the" coupons still on them, although different payments of interest had been made to the *cestui que*trust, after the first day of January, 1864, which, in the opinion of the Court, is altogether insufficient to establish the fact, that twelvé hundred dollars of the trust fund were ever invested in such bonds, and the exception is therefore sustained.

Exception Fourth. *“*Because the Commissioner has decreed against the investment of the funds in the hands of the trustees, in real estate, when the interest of the *cestui que trust*required it, and the safety and security of the trust funds demand it.”

There is no evidence before the Court that would justify it in sustaining this exception, and if there was, it would not order such investment to be made until the remainder-men were made parties, and it would only do it then upon being satisfied that the interests of all the parties would be promoted by investing the funds in some particular tract of land, and not generally in real estate. The exception is therefore overruled.

Exception Fifth. “Because the Commissioner recommends against the change of trustees, when one of them is seeking to absolve himself from all pecuniary liability, and the other facts in the case show that the interests of the *cestui que trust*require it.”

It is not the practice of this Court to change trustees appointed as these were, only upon grave charges in the pleadings, and the charges fully sustained by the evidence, neither of which has been done in this case, and the exception is therefore overruled.

It is ordered and decreed that it be referred to the Commissioner to make up the interest account between the trustees and their *cestui que trust;*computing it from *186the time, and upon the amount above indicated, and that all proper credits be given to the trustees- for payments made by them or either of them.

It is further ordered and decreed that either party may take further orders at the foot of this decree, and it is also ordered and decreed that each party do pay his own costs.

The defendants appealed, and now moved this Court to modify or reverse the decree of the presiding Chancellor, on the grounds:

1. Because it is' respectfully submitted that the Chancellor erred in not overruling complainants’ second exception, as the bequest made to Mrs. Barksdale was not strictly a pecuniary legacy, but an equal share in the estate of testator, which share was ascertained in the Ordinary’s office, and acquiesced in by all the distributees, including the defendants and trustees of Mrs. Barksdale.

2. Because the Chancellor erred in deciding that the testimony was not sufficient to show an investment of $1,200 of the trust fund in Confederate securities, when it is submitted, that the answer of defendant, David L. Hall, was responsive to the allegations of the bill, and therefore competent, and that the remaining testimony corroborated the answer. ■

3. Because the Chancellor erred in decreeing that the defendants pay their own costs, when it is submitted, that the defendants, as trustees, were not in default, but had acted in all matters conscientiously, and for the best.

4. Failing in the above motion, then the defendants applied for a new hearing, on the ground, that the Act of the General Assembly, September, 1866, has changed the rule *187of evidence, and defendants should have the benefit of said Act.

Harrison, for appellants.

*Murray,*contra.

The opinion of the Court was delivered by

Dunkin, C. J.

The testator, David Hall, after devising, for the use of his daughter, the complainant, a tract of land valued at eight hundred dollars, and some inconsiderable articles of personalty at a valuation, devises and bequeaths to her *“*an equal share with his other children of his estate, including the above-mentioned land and property in trust” as thereinafter declared. The property of the testator was sold in November, 1860, on a credit of twelve months, with interest from date. A settlement took place before the Ordinary, December, 1862, of the amount due to the respective parties, under the provisions of the testator’s will, and the share of the complainant in the aggregate amount of principal and interest was fixed at $2,414.04. The Chancellor sustained the complainant’s second exception to the Commissioner’s report, on the ground that this was a pecuniary legacy, on which the interest was payable at the end of a year from the testator’s death. The legacy to the complainant was of “ an equal share with his other children of his estate.” It was therefore a common fund until the estate was sold, and the apportionment made, and the accruing interest was properly brought into this fund. The bequest to the plaintiff was not a legacy of a particular sum, on which interest was payable twelve months after the testator’s death, but the share of an aggregate fund to be afterwards ascertained. The account stated by the Commissioner is based on this principle, and the exception should have been overruled.

*188The second ground of appeal from the Chancellor’s decree is founded on a misapprehension of the efficacy of the defendant’s answer. The trustee admits the receipt of the trust fund belonging to the plaintiff, but seeks to discharge hiiñself by alleging an investment of a portion of the fund in Confederate securities. In *Hart*vs. *Ten Eyck,*2 Johns. Ch. 62, Chancellor Kent says: *“*Where the defendant, by his answer, admits a fact, and insists upon a *distinct*fact by way of avoidance, he must prove the fact so insisted on in defence.” And in our own case of *Ison*vs. Ison, 5 Rich. Eq. 15, the Court used this language: “ Defendant in his answer admits the gift, and whatever he says afterwards of payments made was matter in avoidance, and is not proved by the answer, but must be established by evidence aliunde.”

This is the clear and well-established rule on the subject. Apart from the defendant’s answer, it is difficult to say, that there is any evidence of the investment of the plaintiff’s money. The averment of the answer is, that “ some time in 1863, the defendant made the investment.” This is very general. Cunningham proves that, in the spring or early summer of 1863, he purchased cotton from the defendant for about $1,200 ; that, at defendant’s request, this sum was funded in seven per cent. Confederate States bonds. It was funded in defendant’s name, and the bonds transferred to him; does not remember being told that the bonds were for his sister, the plaintiff. There is no proof that the defendant then, or afterwards, advised his sister, or any one else, of the investment. But, further, on 15 May, 1865, two years after the alleged investment, the defendants, as co-executors and trustees of-the plaintiff’s share of her father’s estate, made a return to the Ordinary, commencing 20 November, 1862, and ending 28 November, 1864. In this account no entry is made of any such investment, or of any interest received on account of the same. Certainly this negative evidence is not conclusive, but, in the absence of *189explanation, it affords additional vindication of the judgment of the Chancellor.

Costs are not generally the subject of appeal, but we think the discretion of the Chancellor was properly exercised.

It is ordered and decreed that so much of the decree as sustains the plaintiff’s second exception to the Commissioner’s report be reformed. In all other respects the decree is affirmed, and the appeal dismissed.

Wardlaw and Inglis, J. J., concurred.

*Decree modified.*