The opinion of the court was delivered hy
McIveb, A. J.
These cases depending upon the same principles, were heard together on Circuit, and the appeals will be considered together here.
The conclusion of the Circuit judge, that the investments of the trust funds claimed to have been made.by the appellant, cannot be allowed, is so fully sustained by his reasoning that it *264would be difficult for us to add anything to it. These cases differ materially from the case of Bolling v. Child, MS. decision filed March 5th, 1879, which has been cited by the counsel for the appellant. There the executor, who was also trustee, in pursuance of the directions of the will, had sold the whole estate and converted it into “ well-secured ” notes, and the court said that the executor having, as trustee, simply received the share of the cestui que trust “ in the incidental assets in which the estate consisted, from which this share was derived, and allowed the investment to remain as it was, in notes, which both the referee and Circuit judge have found to have been then well secured, and to have become worthless only by reason of the results of the war and other causes over which the trustee had no control, and for which, therefore, he was not responsible, it is difficult to conceive of any principle of law or equity upon which the trustee could be held liable.” In that case the property really given to the trustee for the -benefit of the cestui que trust was, practically, the very notes which wére in question, for the testator had directed his executor to sell his whole estate- and divide the proceeds into four equal shares, to be held by the executor in trust for certain persons named. Here, however, the testator did not direct a sale of his estate, and it was not, in fact, sold, but he simply gives pecuniary legacies to the executors in trust for his granddaughters, the wives of the plaintiffs, and directs that the executors “ may, if they deem it necessary and prudent, vest the above legacies in stocks or other property,” and then gives the remainder of his estate to his three sons, who were also appointed executors. So that, practically, he said to his sons, “ I give you all of my property, charged with the payment of my debts and these pecuniary legacies, and you may either continue debtors to my granddaughters for the amount of the legacies given to them, or, if you think it best to do so, you may invest the amount of these legacies in stocks or other property.” If the executor, who alone qualified, chose, as he claims to have done, to adopt the latter alternative, his conduct in making the investment must be tested by the same rules as would apply in the case of any other trustee whose duty it was to invest trust funds. So tested, there cannot be a doubt but that these investments must be dis*265allowed. The notes in which it is claimed the investments were made were not notes constituting a part of the testator’s estate, specially given for the benefit of the cestui que trust, as in the case of Bolling v. Child, and which the executor, in his capacity as trustee, simply allowed to remain in the same form in which they came into his hands. Certainly the testator never had any interest in the note of Smarr to W. A. Moore & Co., and even the notes to J. S. Moore & Sons did not constitute any part of the estate of the testator, for, upon his death, these notes became the property of the survivors of that concern, and the only claim that the estate of the testator had was against the survivors for an account. The transaction, then, simply amounted to this— that the executor, acting as trustee, purchased notes from third persons, many of which were past due and entirely unsecured, as an investment of the trust funds, and did not even take the precaution of having such notes legally transferred to him as trustee, but, on the contrary, left them 'in the hands and under the control of the payees, who continued to deal with them, in some respects at least, as their own property, and if disaster had overtaken the payees it might have proved a very difficult matter to rescue such notes from the creditors of the payees. Such a transaction cannot, certainly, be sustained as a proper investment of trust funds.
As to the appellant’s fourth exception to the decree of the Circuit judge, we think, the investments being disallowed, the best way to make up the accounts is to treat the notes claimed to have been set aside as investments as continuing to be the property of J. S. Moore & Sons, for all of which the survivors should account, in order to ascertain the interest of the testator therein, and that such interest so ascertained should be charged to the executor as part of the assets of the testator’s estate, and that any payments made to the legatees, whether such payments were made from collections on such notes, or from other sources, should be credited to the trustee in his accounts as such. The result will be that all money which may have been collected on these notes will be regarded as belonging to J. S. Moore & Sons, of which the testator’s estate would only be entitled to one-fonrth, and if the estate has already got the benefit of more than that *266proportion of such money, its interest in the other assets of the partnership will be reduced to the extent of what the estate has already got the benefit of exceeds such one-fourth. This, it seems to us, would practically effect what we understand to be the object of that exception.
We are unable to discover any sufficient reason for overruling the finding of fact by the referee in regard to the credit of $1698.46, allowed the executor for the expense incurred in the support of Miss A. J. Springs up to the time she attained the age of eighteen years. It is true that the testimony upon this point is somewhat conflicting, but the referee, who had the witnesses before him, has reached the conclusion that the weight of the testimony was in favor of allowing the credit, and we think his conclusion should have been adopted, unless it was shown, as we do not think it has been, that his conclusion could not be sustained by the testimony. Dewitt v. AtKinson, 6 S. C. 140. The judgment of the Circuit Court is, in- this respect, reversed, and the report of the referee, as to this matter, is confirmed.
Appellant’s sixth exception cannot be sustained. The executor certainly undertook to dispose of the stock in question, and he has not accounted for the proceeds of it. He must, therefore, in the absence of any other proof as to its value, be charged with that fixed by the appraisers.
Upon the subject of the commissions claimed by the executor, there is no doubt that the Circuit judge was right in disallowing commissions on all receipts and disbursements prior to the adoption of the general statutes, upon the ground that the executor had failed to make annual returns, (Lay v. Lay, 10 S. C. 208,) but inasmuch as the act of 1789 was repealed by the general statutes, and the provisions enacted in lieu thereof do not contain a clause declaring that a failure to make annual returns shall work a forfeiture of the executor’s commission, it is clear that the executor is entitled to commissions on all his receipts and disbursements since the adoption of the general statutes; and it is equally clear that the executor should, under the case of Gee v. Hides, Rich. Eq. Gas. 5, -be allowed commissions on the final balance. In these respects, therefore, the judgment of the Circuit Court is modified so as to conform to these views.
*267Iiow the accounts will stand after these modifications, it will be for the Circuit Court to ascertain, and until that is done it is impossible to say whether the decree should be against the executor personally as well as in his representative character. If it shall appear that assets of the estate of the testator, including therein thé real estate, and excluding the value of the slaves, have come or ought to have come into the hands of the executor, sufficient to enable him to pay the debts and the legacies, then the decree should be against him personally as well as in his representative character; but if the contrary appears, then the decree should be against.him personally, only to the extent of the assets which have or ought to have come into his hands.
The reasons assigned by the Circuit judge for a change of trustee are quite sufficient, and in this respect the decree below is affirmed.
The cases are remanded to the Circuit Court for such further proceedings as may be necessary or proper to carry Cut the views herein announced.
McGowan, A. J., concurred.