Year: 1861

On this branch Of the case the Court properly
oecreed that Amy and her children, as well as tbs
one,ourteenth of Cader Dement'S estate, should b


qIany divided between the compliments, and their
i@Tmer' T ne accounting for those he had sold


Guilty. o~0e PieSe"'' ie'S "a ~


a s1e sale OF the lands of Cader Dement, as di-
reesee oy the will, Tarpley became the purchaser
" " - @Sres, Ior which ha executed his notes. Az
Ter TINS ne was appointed guardian for zi,r ~ com,
plalnans, and took up his notes for the lana fo-n
the executors simply by executing his RECENT AZ
guardian Tor the amount due TO his vzaras on5 H.;


SELF perhaps under the will as the Fourteenth Of IN
estate In effect this Was urrchase 80 ,Io io - =
with the money of the wards he was NO. tba;
guardian at the time Of his purchase but vac AZ IN
time of payment, and as guardian vested tlsi Ca, u
in the land What difference can it make In nr;nc;
pe whether this done at OF after the cdntrac,
of purchase? 1t was in the one case as we'll as r.
other the conversion of the trust fund into land II
is every where laid down that in such a case the
owners of the fund may elect to take the land in
stead of the money whenever the fact comes to their
knowledge 1t is not two late to do this after they
have received the fund if they were not aware of
the investment at the time. To preclude them on
this ground it must appear that they knew their
rights and made their election Understandings or
that they have delayed too long to assert them.


Their right to the land is not a resulting trust
properly so called stated in the decree. That is
well established by the authorities cited in the ar





OF trust fund to pursue it into any property In
which the trustee may have invested it. Kent,
229 and notes. The case of Turner vs. Petgrew
and others, Hump, is conclusive, without refer
ence to other authorities. There is distinction
In principle between that case and this --.


1t Is. however, not clear from the proof that the
whole consideration for the land paid out Of the
trust fund If that were not sO the decree Is wrong
In Vestng the title to the whole of the land IN the
wards. They would only be entitled to an interest
to the extent that their funds applied to the
payment OF the consideration. This must be refer
red to the Master to ascertain and report


In all other respects we think the decree is rizht
and it will be affirmed


The cause will be remanded for the account or
dered, the sale of the land and such further orders
and DEGREES as the rights of the parties may re-
quire.


The costs of this Court will be paid out of the
common fund. CARUTHERs


Since writing the above opinion the counsel of
defendants have directed our attention to the oues
tion made in the argument to the right OF the
widow of James A Tarpley to dover in the Isl
acres of land in controversy. There is nothing in
the peadings to bring up that question but as the
case is remanded it may be presented by the proper
amend, or distinct application on the part of the
widow We think it very clear that she has right
to dover out of the insterest of the cOmplainants
who were the wards of her husband. for as to that
he never was seized owner, but only as trustee
for them so far he paid for the land out of 9TH
er means the trust does not attach and to that ex
tent she would have a right to DOVER and no fur
ther. Her husband died testate, and she did not
disseIt from his will. But that provides that size
shall have legal DOVER and gives her the same in
terest as in case of intestacy or dissent.


But the question as to any right to dover az
against the deed of trust to Mccullough will be lett
open for the chancellor, after taking the account
ordered. CARurHERs.