#### Isabella Monk, and others, *vs.*Elizabeth Pinckney, Executrix.

Where an executor or other trustee neglects to obey an order to invest in bank stocks, he will not be exempted from the payment of interest on the ground of *laches*in the *cestui que trutss*in demanding payment.

This cause was first beard by Johnston, Cb., at Colleton February, 1856. Tbe following is tbe decree then pronounced, by bis Honor.

Johnston, Ch. This is a bill brought by colored persons formerly slaves of tbe late James *W.*Monk, against tbe executrix of Dr. Coteswortb Pinckney, to enforce a trust undertaken by bim for tbeir benefit.

On tbe 8tb of November, 1830, James *W.*Monk, duly executed a deed, by which, reserving a life estate to himself, be *280conveyed to Ur. Pinckney tbe following slaves, to wit; Bella, (tbe plaintiff' Isabella,) and ber children then born, Margaret, Elizabeth and Anna, and also two other slaves, Sophia and Billy, *in trust,*.that Dr. Pinckney on the death of Monk, should, at his own proper charge and expense, convey the said-Bella and her children, and all her and their increase and issue, existing at Monk’s death, out of this State, to whatever place they might select within the Atlantic States, and then and there make them “ absolutely free and exempt from any civil servitude whatever.”

On the 25th of August, 1832, and shortly before his death, Monk made his will; by which he appointed Dr. Pinckney his sole executor andlegatee, and after providing for the payment of his debts; declared the legacies thus given to be *upon trust,*“ to afford to the slave Bella, already conveyed by me under certain trusts to the said Dr. Cotesworth Pinckney, a decent support *during her life,*and also to *educate and support*such children as she may have living at the time of my death; and *after the death of the said slave Bella, then in trust to support*each and every one of the said children until they shall severally come to the age of *twenty-one years; when*an equal lot or portion of the said property, both real and personal, shall be assigned and set over to each of the said children, *as they shall severally come to the said age,*to be theirs in fee simple forever, free of any trust or charge whatever.”

Bella and her children have been in Connecticut (about Middletown) many years, and some, if not all, of her daughters, have married white men there.

Two letters from Dr. Pinckney to Bella, one of them dated the 12th of August, 1840, and the other the 25th of October, 1841, have been put in evidence, from the contents of which, it must necessarily be implied, that this family were there with his privity and consent, and he expressly acknowledges their freedom.

There is also in evidence, a petition filed by Dr. Pinckney *281for tbe sale of Mont’s estate, filed tbe 19tb of January, 1835, in wbicb be sets out tbe will of bis testator.

■ On tbis there is an order of tbe same day, followed by reports and orders, Jan. 10, 1837 and 1838. Tben on tbe 19tb of Feb. 1845, Dr. Pinckney filed another petition, in wbicb, after reciting tbe deed and will of Monk, and tbe order for tbe sale of tbe estate (exclusive of tbis family), &c., be expressly states that “ be caused Bella and her children to be conveyed to tbe town of in tbe State of Connecticut, and there made free from all civil servitude.” He prays leave to remit tbe nett balance of tbe estate to Bella and her children for their maintenance and support, and that be be discharged of bis trust. Of course tbe petition was dismissed.

Mr. Burbidge also testifies, that on two occasions, from 1838 to 1840, be carried about two hundred dollars to Bella from Dr. Pinckney. Dr. Pinckney died in 1847, and tbe defendant is sued as bis executrix.

■ *The defence is:*

1. That Dr. Pinckney did not emancipate tbis family. But I think tbe evidence, from circumstances, and from bis own admissions, is satisfactory and conclusive, that be did.

2. That tbe plaintiffs’ claim is barred by tbe statute of limitations. But tbis is a case of express technical and continuing trust, to wbicb tbe statute does not apply. As to tbe de-fence not pleaded, but relied on in argument, that tbe executrix must be presumed to have distributed her testator’s estate, and is therefore, no longer liable -out of its assets, it is obvious, that if she would avail herself of tbe statute applicable to that case, she should have pleaded it. But it appears also, from tbe testimony of tbe Ordinary, that tbe estate has not been closed.

*2828. That tbe bill, so far as Bella’s children are concerned, is premature. They have no rights until her death, and she is still alive and joins in the bill. Besides, it is objected, that it is not proved that any of them (or which of them) is of age. The answer to this objection is, that Bella has a present right to an account. The children have also, as she has, a right to have the trusts declared and established, and the amount of the trust fund ascertained. The children have, it is true, no right to the corpus until the mother’s death ; but it is singular if children existing at the death of Monk, in 1832, are not of age in 1856.

It is adjudged and declared that the defendant, as executrix of Cotesworth Pinckney, is liable to execute the trusts created in her testator by the deed and will of James *W.*Monk, set forth in the pleadings; and it is referred to the Commissioner to ascertain and report the character and amount of the trust fund, and what is now payable thereout to the plaintiffs severally, or either of them.

Under the above decree the Commissioner submitted the following report:

“ The Commissioner was required to report as to the character and amount of the fund, and what is now payable thereout to the plaintiffs severally, or either of them, and reports :

“ That in arriving at the amount of fund, *two*sources of information were examined;

“ 1st. The report of Mr. A. Campbell, a late Commissioner.

“ 2nd. The reports of Mr. M. Eord, also a Commissioner of this Court.

*283“ In tbe year 1845, Dr. 0. Pinckney, tbe executor of James W. Monk, and trustee to these plaintiffs, filed bis petition, stating *inter alia,*tbe amount of tbe trust fund was five hundred and seventeen dollars, and sixteen cents, and prayed to be discharged from tbe trust. This being referred to Mr. Campbell, tbe then Commissioner, be reported that tbe facts as set forth were correct, and tbe balance, as per Mr. Eord’s report and tbe other evidence before him, *was*five hundred and seventeen dollars and sixteen cents ; at tbe same time be reported adversely to tbe prayer to be discharged. If it be true, as contended by tbe defendant’s solicitor, that this report should be respected as a decree of this Court, behind which tbe Commissioner ought not to go, tbe amount would be settled. But it is true, as is argued on tbe other band, that this petition being *ex*parte, tbe present'plaintiffs should not be prejudiced thereby, and consequently, tbe Commissioner has gone behind it.

“In January, 1835, (Equity Journal, b.— p. 791, )ym order was bad for tbe sale by tbe Commissioner, Mr. Ford, of tbe estate of James W., Monk, for one-third cash, remainder in one and two years: and further, that after tbe payment of debts, tbe residue of estate tbe executor, Dr. Pinckney, was ordered to invest in Bank Stock of tbe city of Charleston. Again, in January, 1837, Mr. Eord reports in tbe case of *Pinck-ney, Ex'or.,*vs. *Creditors of James W. Monk,*that assets of estate were five thousand six hundred and fifty-seven dollars, and twenty-nine cents, and tbe debts, five thousand and forty-four dollars, and thirteen cents, which would leave according to bis statement, five hundred and seventeen dollars and sixteen cents as balance due executor. This is clearly a mistake, since five thousand and forty-four dollars and thirteen cents taken from five thousand six hundred and fifty-seven dollars and twenty-nine cents, leaves as balance six hundred and thirteen dollars and sixteen cents, and not as reported, five hundred and seventeen dollars and sixteen cents. With this *284error we can have little to do, since from a memorandum of a settlement between Mr. Ford and tbe executor, Pinckney, found among tbe original papers of record in this office, indeed from tbe report itself in this case, Mr. Ford seems to have been tbe disburser of tbe funds, and consequently, this amount manifestly is wbat Pinckney received from him. In 1838, Mr. Ford reported that there was three hundred and eighteen dollars and eighty-eight cents further due estate of James *W.*Monk, from estate of George Monk. But there is no evidence that Pinckney ever received this amount. In the memorandum of settlement between Ford and Pinckney, as above stated, it appears Ford charges himself with the said amount of three hundred and eighteen dollars and eighty-eight cents, with other amounts, and discharges himself by a schedule of debts paid by him for the estate of James W. Monk, and takes Pinckney’s receipt, which receipt was also found among the original papers, for the balance in his hands after payment of the debts set forth in that memorandum. This balance is one hundred and ninety-seven dollars, which amount the Commissioner thinks'is the true one to be charged against Pinckney as trustee, and not three hundred and eighteen dollars and eighty-eight cents. As it further appears that the debts of the estate were liquidated during the year 1837, January, 1838, would seem to be the starting point in calculating interest on the amounts that were due at that time. This is the information on which this report is based, the meagreness of which, the length of time elapsed since it was done, and the patent error in the report, embarrasses a fair and equitable conclusion. The great correctness of the late Commissioner Campbell, in all matters 'of a business character, especially as an officer of this Court, almost warrants the conclusion that his report was correct, according to the information received at the time. This, coupled with the sterling character of the late Dr. Ootesworth Pinckney, and his asseverations that but five hundred and seventeen dollars and *285sixteen cents eVer came into bis possession, baits tbe Commissioner measurably, in recommending any other mode as tbe basis of tbe present adjustment, than to consult this report only. It is true that there is evidence sufficient to charge tbe amount of one hundred and ninety-seven dollars, but as many years have flown since this transaction, and most if not all the individuals who could give us any information on the subject are dead, it may be equally true, if they were now present they could give a different complexion to it. Keluct-antly, therefore, the Commissioner recommends that the sum of one hundred and ninety-seven dollars shall be added to the five hundred and seventeen dollars and sixteen cents, and this amount to draw interest from January, 1838, to the present time, without annual rest, because from the letters of Dr. Pinckney, put in evidence by the plaintiffs, it is certain if they had appointed some one to receive the interest he was ready and anxious to pay it, as indeed the entire corpus. The parties (plaintiffs) consist of a mother and three children, who reside in some free State, whither they were sent, and the mother, Isabella Monk, is the only one at present entitled to anything — she having a life interest in the same, amounting to the annual interest, and the Commissioner so reports.

“ The estate fund is as follows, $517 16 and $197 91 is $715 01 “ Add interest on this amount from January 1st, 1838, to July 17th, 1843, (5 yrs., 6 m., 17 d.,) , 277 62

992 63

*“*Deduct amount paid by Pinckney, $200, with interest for the same time, that is 5 yrs., 6 m., 17 d., int. $77 62

277 62

$715 01

“ Add interest on this amount from June 17th, 1843, to January 17th, 1857, 14 yrs., 6 m.,

725 73

“ Total amount on January 17th, 1857.

$1,440 74

*286
      *“*The credits of Pinckney are admitted, though there was some doubt as to the time of payments. Commissioner therefore concludes under all the circumstances, to assume January, 1838, as the starting point for debits and credits; and as it is certain the two hundred dollars he did pay, was more than then due, he has allowed the corpus of estate to make this amount by interest, before he deducted as stated already in figures. The present amount the plaintiff, Isabella Monk, is entitled to, he reports at seven hundred and twenty-five dollars and ninety-two cents, the accumulated interest.”

The plaintiffs excepted to the report on the grounds:

1st, Because, by the report of January, 1837, in *Pinckney ex'or. Monk*vs. *Creditors of*Monk, a balance of six hundred and thirteen dollars and sixteen cents is shown to be due the estate of Monk, after payment of debts, and although from a palpable error in figures, it may be that five hundred and seventeen dollars and sixteen cents was the amount finally agreed on between Commissioner Ford and the executor, as the balance due; yet six hundred and thirteen dollars and sixteen cents should be the amount here charged against executor, because the evidence shows that at least this amount was retained by executor, never paid over to Commissioner, nor yet accounted for by him.

2nd. Because the said sum of six hundred and thirteen dollars and sixteen cents, plus the said sum of one hundred and ninety-seven dollars and ninety-one cents, that is, the amount of eight hundred and eleven dollars and seven cents is the amount established, and should bear interest from 1st of January, 1838.

3rd. Because plaintiffs are entitled to annual rests.

*2874th because *the*funds received by *cestui que trust*were, one hundred dollars in the fall of 1838, and the like sum in the fall of 1839; and the Commissioner showed at the end of the first year, that the amount bore interest. Credit the executor by reason of the payment of the first hundred dollars, with the amount of interest then due, and charge the over-plus in payment on the interest of the next year, and in like manner showed credit and debit, the interest accruing, and the payment of the second one hundred dollars. And make the interest that may be due on the 1st of January next, after the aforesaid credit of two hundred dollars and thus allowed, together with the principal, the amount for which the said defendant must now account.

The case was heard on the exceptions, in February, 1857, by his Honor Chancellor Wardlaw, who made the following decree:

Waedlaw, Ch. This case is presented for judgment by exceptions of both parties to the Commissioner’s report, made under the following decretal order of Chancellor Johnston, in February, 1856:

“ The defendant, as executrix of Cotesworth Pinckney, is liable to execute the trust created in her testator by the deed and will of James W. Monk, set forth in the pleadings, and it is referred to the Commissioner to ascertain and report the character and amount of the trust fund, and what is now payable thereout to the plaintiffs severally, or either of them.” I refer to the Chancellor’s decree and the Commissioner’s report, for a general synopsis of the case; but to make my observations on the exceptions more intelligible, some restatement of the factá may be useful. The only trust in the deed, is for the emancipation of the plaintiffs, and as this has been accomplished, the deed has no bearing on the character and amount of the trust fund, the only remaining subject of *288controversy. By tlie will of James W. Monk, bearing date August 25, 1832, shortly before bis death, he constitutes 0. Pinckney sole executor and legatee *in trust*after payment of debts, to provide during the life of the said Isabella, for her maintenance and the maintenance and education of her children living at the testator’s death, and after the death of the said Isabella, to provide for the maintenance of her said children until they severally attained the age of twenty-one years, and upon the attainment of each to such age, to allot to such mature child, an equal portion of the property in fee, discharged from any trust. Dr. Pinckney assumed the trust of this will, and in 1838 remitted to the plaintiff one hundred dollars, and in 1839 remitted to her one hundred dollars; and in a letter produced by plaintiffs, of August 12, 1840, acknowledged three hundred and fifty dollars to be then in ■ his hands, as the remnant of Monk’s estate,' applicable to the trust. Previously, a bill had been filed for marshalling the assets of the estate of James *W.*Monk, and in January, 1837, the Commissioner reported that the assets of the estate exceeded the liabilities the sum of five hundred and seventeen dollars and sixteen cents; and this report was confirmed by the Court. It is obvious, that in his process, the Commissioner erred in subtracting the sum of liabilities from the assets, and that the balance was six hundred and thirteen dollars and sixteen cents. Afterwards, in 1838, Dr. Pinckney, as executor of James *W.*Monk, seems to have received from the Commissioner one hundred and ninety-seven dollars and ninety-one cents, as a distributive share of the estate of George Monk. In January, 1845, Dr. Pinckney filed his petition in this Court, setting forth that five hundred and seventeen dollars and sixteen cents, reduced by the sums remitted by him, were in his hands, subject to the trust of Monk’s will, and praying leave to remit the balance and be .relieved from the duties of trustee. The Commissioner reported, that the statements of the petition, and particularly *289as to the balance in trustee’s bands were true, but, as no other trustee had been appointed, Dr. Pinckney ought not to be discharged; and this report was confirmed by the Court at the sitting in January, 1845. Dr. Pinckney died May 6, 1847, leaving the defendant sole executrix and legatee, and in the summer of 1853, Mr. Tracy, as attorney of plaintiffs, applied to the defendant for the adjustment of their claims, and so far as appears, no intermediate claim in this behalf, upon testator or executrix, had been made since 1840. The bill was filed February 16,1856. The letter *of*Dr. Pinckney and the proceedings in this Court were offered in evidence by plaintiffs. The Commissioner, by his report, charges the defendant with five hundred and seventeen dollars and sixteen cents, and one hundred and ninety-seven dollars and ninety-one cents, making seven hundred and fifteen dollars and seven cents, as the corpus of the estate, with .simple interest thereon from January 1, 1838, deducting from the accrued interest the sum of two hundred dollars paid by testator of defendant. Both parties except to the report, and without repeating the exceptions in detail, it is sufficient to remark, that the plaintiffs claim that the corpus of the trust estate is eight hundred and eleven dollars and seven cents, ($613 16 and $197 91) and that it should bear interest from January 1, 1838, at annual rests, and defendant insists that the corpus is three hundred and seventeen dollars and sixteen cents, ($517 16 — $200) and bears no interest. Upon all the information before me, but with some distrust as to the justness of the result in the particular case, I sustain the plaintiffs’ view as to the extent of the corpus. The Commissioner reports that Dr. Pinckney was of “ sterling character,” and that Commissioner Campbell, who made the report of 1845, was of great correctness as an officer of the Court in all matters of business, still, it is manifest that Commissioner Ford committed a clerical error in subtraction in his report of 1837, and that the true balance of the assets and liabilities *290of the estate of James W. Monk, not including one hundred and ninety-seven dollars and ninety-one cents afterwards received from George Monk’s estate, was six hundred and thirteen dollars in the hands of the executor, and it is quite probable that Commissioner Campbell adopted the report of 1837 without reviewing its calculations or adverting to the report of 1838, which states the additional sum of one hundred and ninety-seven dollars and ninety-one cents. The plaintiffs were not formal parties in these proceedings, and they have the right to use them as establishing the basis and substance of their claim without being committed to formal errors. They were so far represented by the executor in the suit with creditors concerning the administration of Monk’s estate, that they probably would have been concluded by actual payments of the executor to creditors lawfully entitled, of the sum however deficiently reported and adjudged to be in his hands; but this sum, in money, has been retained by the executor and his representative, and I do not consider the plaintiffs estopped from showing that sums not included in the judgment, were actually in the hands of the executor. It is plain enough that the plaintiffs are not bound by the report of 1845, but it is more doubtful whether they can surcharge the sum of five hundred and seventeen dollars and sixteen cents decreed in 1837. "With some misgiving I recognise their right thus to surcharge; but this surcharge upon the honest settlement of the trustee, will have some influence on my judicial discretion in the allowance of interest. As the plaintiff, Isabella, was only entitled to the income for life, of the trust estate, the payment of the capital to her by the executor would be a breach of trust, for the consequences of which, Ms estate would be bound to indemnify the remainder-men. Consequently, the payment of two hundred dollars to Isabella can be treated only as of the interest accrued to her with the right in the trustee to retain for reimbursement any excess from the interest that might subsequently accrue to *291Her. It is the law of this case, adjudged by tbe former decree, ■that the statute of limitations does not bar the demand of the plaintiffs for account, as the trust involved is technical and continuing. To this extent I have neither authority nor reason to dispute the judgment. But I do not understand the Chancellor to decide, nor the doctrine of Equity to be, that the defendant is a technical trustee, and that the statute does not save the defendant from payment of arrears of interest. A general account is decreed, but nothing is adjudged as to particulars. Dr. C. Pinckney, by making probate of the will of Monk and assuming to execute it, became a technical trustee, and his estate, in the hands of his representative, became liable for any breach of his trust prosecuted within a reasonable time; but, his executrix, who never assumed to execute Monk’s will is no representative of that estate, nor trustee for its beneficiaries. ' The remainder-men should not . suffer on account of the laches of the tenant for life, but it is reasonable that she should suffer within the extent of her interest. The trust fund which came to the hands of defendant constitutes, as to her, a mere debt of her testator. Allowance of interest or income, is within the judicial discretion of the Chancellor, — not his caprice, but discretion governed by the rules and doctrines of the Court. In the present case, the beneficiaries are colored persons residing in a remote State,- and I doubt if their trustee was bound to do more than pay the interest when demanded of him here; and I am confident that the representative of the trustee was not obliged to incur the expense and hazard of remitting the income to Connecticut. On the whole, my opinion is, that interest should not be calculated before demand made by the attorney in fact, of plaintiffs. In my judgment, the account should be stated as follows :

Capital of trust fund,.$811 07

Interest thereon from middle of summer 1853

until Eebruary 6,1857, (three and a half years), 170 32 *292with interest on capital until distributed. In reply to a suggestion from the bar, I venture a professional opinion, which, however, is no judgment, that the defendant might relieve herself from further responsibility, by paying to the plaintiff, Isabella, the interest accrued, and investing the capital in a safe public stock, on trust, that the interest should be paid to the said Isabella during life, and the capital be distributed on the death of the said Isabella, equally among the children living at the death of James "W. Monk. *It is ordered and de*creed, That the defendant pay to Isabella Monk the sum of one hundred and seventy dollars and thirty-two cents, and all interest accruing annually from Eebruary 6, 1857, on the capital, eight hundred and eleven dollars and seven cents, during the life of the said Isabella, and that upon the death of the said Isabella, defendant distribute the said capital equally among the children of the said Isabella, living at the death of Jas. *W.*Monk; the representatives of any deceased child taking the share of such deceased child. *It is further*ordered., That the costs of this case be paid from the income of the trust fund, so far as it may extend, and that as to any excess, each party pay his own costs.

The plaintiff, Isabella Monk, appealed on the grounds;

1. That she is entitled on general principles of law, to interest as is claimed in her third and fourth exceptions to the commissioner’s report.

2. That by the decree of Chancellor Johnston, Eebruary 20th, 1856. "the defendant as executrix of Cotesworth Pinck-ney, is liable to execute the trust created in her testator by the deed and will of James *W.*Monk,” and can now derive no benefit of any defence not open to him.

3. That the costs should be paid by defendant.

*293The opinion of the Court was delivered by

Johnston, Ch.

There are several grounds on which full interest should have been decreed in this case; but it is necessary only to mention one. If Dr. Pinckney had vested the fund, as he was ordered to do, in Charleston bank stocks the dividends accruing would have been forthcoming at all times for the benefit of his *cestui que trusts.*Failing to do this, he could not, by his neglect, deprive them of these profits; and his estate is justly chargeable with interest as an equivalent.

Tt is ordered, that so much of the decree as declares that interest on the fund is to be computed only from demand, be reversed; and that interest be allowed as in other cases. Let the report be reformed accordingly.

Dunkin and Daiigan, CC., concurred.

*Decree reformed.*