Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1883-03-17
Judge McDowe,I.s Opinion.
The following lie the full opinion in th
case delivered BY Judge McDoWell:


case delivered by Judge McDoWell
These cases were heard together for convenience.
They all pertain to the same subject matter
namely. the estate OF Wade Il. Bolton, deceased.
The first named bill is filed TO obtain proper
settlement of the accounts of E. ~. Apperson as
executor of the last will and testament of Wsde
n. Bolton, deceased, and a due administration of
his estate under the provisions of said will and the
laws OF distribution touching the rights of the
widow OF the testator, who dissented from the
will. The complainants in the other suits are
legatees under the WILL and sue for an alleged
balance due them as such. The executor has
discharged his duties in the collection of the as
sets OF said estate, and in protecting the same
from the suits of alleged creditors of said estate
with marked ability and commendab BILE energy aud
zeal. The proof further shows that he has faith
fully reported the assets which came to his hands
If he had used the same capacity and effoIt in
making the moneys in his hands productive, and
to thus prevent encroschment upon the principal
by the tax gatherer and by others on the estate
to order distribution of the remaining sets ac-
eoTding to law and the will. But the sdministra-
tor, upon his own ststement, has permitted said
moneys to lie idle and uuproductiye for a long
ferries OF years; some part of it for more than u
years. In the meantime these sums have been
greatly reduced by annual taxes and other ex-
penses. On the other hand. the COMPLAINS n is
charge that he has not only omitted TO make these
moneys productive, but has also converted them
The fact u.s. that the moneys when collected by
him were deposited or placed to the credit of K.
M. Apperson, as executor of Wade II. Bolton, de-
ceased, with the commercial firm of E. NJ Apper-
son & Co, of which he was q member and three
business, and still has about $50 900 according to
the admissions OF the defendant Apperson, and
perhaps more, and no profits have been made on
the same for the estate. Upon these facts he is
sought TO be charged on two grounds:
1. for gross neglect OF duty in permitting the
years. That such neglect amounts to breach Of
trust and makes him liable for interest.
Il That he could not deposit the funds with Z.
n Apperson 4 Co. without sacn dc posts Oper-
sting as deposit with himself and that the use
by it in its trade and business is in effect by
inns hat Y, -
titled to the profits made on the fund or interest
with annual rests.
The executor denies both these propositions and
that the exigenees of the estate required him at
ali times to Keep the money on hand. To the sec
ond ground for the recovery OF interests profits,
he replies that it was his duty, stated above to
keep the money on hand and such being the fact,
he had right to deposit it for sale keeping in any
depository, and thai he did do so, and that the
deposits with said firm is authorized by law.
The list question will be considered In order
Is the executor chargeable for interest in failing
TO make the moneys in his hands productive for =
long series OF years under the facts of this case?
Form. is Executors were not chargeable with in
terest, hut ever since the time OF Lord Ihurlow
they hays cen held to pay interest according as
the cireum 'nees of each case may Justify" Nor
"Butitis Gifieult to lay down any general rule
as sauitsb!e and applicable in all SEES" Perry
1.-THE rules which apply in which executors are
charged with interest on the balances retained by
them are subject to a good deal of dificuity arts
ing not so much from any donnt as to the porinei
pes themselves as from The practical application
Of the particular casts. Generally, it
have returned balances in his hands
which he ought 70 have invested, the court will
charge hin WIth simple interest on these
balances IDunscombe Us. Dunscombe, l John
Chy. r. sos The same rule is laid own in Bud
dick vs. Gsrriek, 5Chy. Appeal cases. 232i Courts
terest or not according to the circumstances of
each ctse. Yet it is not arbitrary but in a great
GSgree eoniroliea and governed by principles from
certainty and confusion into system of equity
jurisprudence" Zones rs Ward, IS Yerg. iGi
been guilty OF negligence in emitting to Law out
money where It is m. ode his duty to do So iPar
R Ees % Es1 s 81 Pa ST. P Perry sec 46s, IL
breach OF positive duty to make him liable for in
terestn i Perry, ass; SILL Again it is held that
Improperly retains in his hands" or delays to paw
out for an unreasonable time lBisphsms' Eq
I R2, Perry 81 Jones e. Ward, 10 Yerg.. 1851
fault, and the circumstances are such
that he could NOT pay out or distribute the fund,
IS on him TO show the excuse" Morris rs Morris
Heis, S14; German IS German, Cald Is3i
And this is the rule in Tennessee. when the ex-
the money by him, when he has not nnreasonabiy
delayed his accounts, when he has made promptly
just and true exhibition OF his receipts and dis
buisements, he is not chsrgeable with interest on
any accidental amounts he may have in his hancs
and on which he received no interest" II Yers..
LIZ; 10 Yerg:, l61; Morris Us. Morris, Heis s2l
Turneyus. Williams, YeTg, $751;
Circumstances often arise when he may retain
money In his hands after the two and three wear,
given creditors to sue, although strict construc
ton OF Code 2Sl1 might lead TO that result This
row ION is only directory and is to be un ierstood
In connection with the other provisions" on the
subject. IWeliford Is Watson, II HefB, 1901 In
general no trustee will be charged with interest
for holding the money beyond the time indicated
in said statute for payment unless he has actually
received it, or what is regarded as the same thing
might have received il without fneiirrine - spy
hazard lpalF
wills. sOl; Chambers rs. Kerns Jones Eq $50
Our eonrt on this subject says that I'm The case
cellor Kent reviewed the English cases upon this
subject, and lays down the rule that If an eSecu-
tor or other trustee negigently suffers the money
to lie idle he Is chargeable with simple interest
II the moneys are retained in his hands
length of time when the exigenc'es of the trust
did not require it, the inference is irresistible that
the fund had been retained that ii might be EN-
ployed for the private benefit of the trustee"
IuI1ey rs: Wiiiisms, Z Yerg,. PA: see Jones Us.
bers u.s. Kerns cited above, the Court say, the gen.
ers rule is that an executor is not expec ed to in.
not ehargesble with interest unless 1t be proved
that he has made interest.
Wymesm rs. Hubbard. 10 Moss 2ss, is to the same
effect. But this rule like most others, is subject
TO exceptions growing out of the peculiar facts Of
the cases. BuI he must show that ne has kept the
money on hand to meet the exigencies of the es-
tate in order to avoid the payment of Interest
Morris us. Morris, Heis S14; Hew. & Min. Az
Hence 1t becomes important in ali cases where
OF retaining trust moneys to consider when the
time for distribution OF the money has arrived"
When he cannot pay out the money It Is not a
breach of trust of itself to retain it-but he is
guilty of breach of trust where the time of pay.
ment is delayed for q definite time not to make it
productive. ll5 Bearan, 460 In Pennsylvania an
executor was charged with interest for permitting
money TO lie IDLE for five years. 57 Pa ST. 46: see
Harris, 575i Perry, 46s and 81 IS TO delayI
From these anu The many other authorities cited
in the case, the result Is reached, that il is not
consistent with the duties OF an executor in this
State to loan out money of the estate. ror to in
vest the same in United States securities, unless
or it is made manifest that the time for payment is
long delayed on account of some fact arising in
the case for the that unless it is SO DELAYED
he may be called upon at any time
legatees in the due administration of the
estate. But section 1864, of the Code of Ten
nessee, provides That guardians executors ad-
minisrstors and trustees shall also be authorized
and empowered to invest money and funds in
their hands in the public stocks and bonds OF the
United States unle,s another mode of in
testator" The last clause of this section tends to
show thst the lawmakers in passing the act only
intended II to apply to cases wnen the deed or viii
imposed upon the executor the duty of investing
and if this be so, it has little bearing on
this case. But whether this Is the true copstrucl
tiOn of the act or not, it Is Clearly not mandatory
but at most only directory, and, think only per.
miksiye. That is, he may do so when the circtpl-
STAGES, arising in the administration of the es.
tste, are such as not TO require him to keep the
money on hand for the due and proper admins
tIation of the estate, And where the money can
not be distributed and the time of payment is not
delayed for & definite period. his duty in such
cases Is matter OF discretion. To q great degree,
AID ne will not be chargeable for the ex-
ercise or bad judgment when he acts hon.
estly and is not guilty of such con-
duct to lead 10 the conclusion that
man Of ordinary care could not reach such a