75 Ind. 557 | Ind. | 1881
The appellants, who are husband and wife,, filed exceptions to the final settlement report of the appellee, as administrator, with the will annexed, of the estate of John Denny. Issues of fact were formed, and a trial had,, which resulted in a finding and judgment for the appellee, confirming his report and discharging him from his trust as to the appellant Agnes C. Gilbert. The'only question presented here is, whether the finding is contrary to the law and the evidence. There is no conflict in the evidence, and it shows the following facts :
John Denny died testate, and by his will made a bequest to his daughter, Agnes, which was not to be paid to her so. long as she remained the wife of her then husband, but was to be put at interest by the executor, and the interest to be
“The appellants claim, upon these facts, that the loss on the bank shares is the individual loss of the appellee, because the investment was made without authority of the court, was made in his own name as an individual investment, and, if made in execution of the trust, it was in violation of the terms of the will, which required the legacy to be put at interest. On the other hand, the counsel for the appellee claim, on the authority of 1 Perry Trusts, secs. 452, 460, that the direction to- put at interest, means no-more than a direction to make the fund productive, and that the appellee’s duty was to make an investment, without waiting for an order of court therefor. They further argue that bank stock is a proper investment, and claim that it is so held in by far the greater number of the States of the-Union, wherein the courts have passed upon the question. They cite Harvard College v. Amory, 9 Pick. 446 ; Lovell v. Minot, 20 Pick. 116 ; Clark v. Garfield, 8 Allen, 427 ; Smyth v. Burns, 25 Miss. 422; Brown v. Wright, 39 Ga. 96; Hammond v. Hammond, 2 Bland Ch. 306 ; Gray v. Lynch, 8 Gill, 403; Murray v. Feinour, 2 Md. Ch. 418.
There are several reasons why, in our judgment, the loss-in question must be borne by the appellee. First, because, at the beginning of his trust, withholding the truth of the case from the court and the parties interested, he charged himself on the record with money not, in fact, received, and took the assignment of the stock in his own name. Further than the facts stated, there is no ground for charging any bad faith, and it is to be presumed that none was intended
But the question before us is not a question of conversion, nor one to be determined by the same test. Whether' a conversion of the trust money or property has occurred, depends somewhat upon the intention of the trustee in doing the act which is claimed to constitute the conversion, as well as upon the nature and consequences of the act, but the rule which holds the trustee personally responsible for losses incurred of money deposited or invested in his own name, rests, as we conceive, upon different considerations. By deposits and investments in his own name, the trustee obtains advantages by way of personal credit and otherwise, to which he is not justly entitled, and good policy, with a view to the faithful conduct of those who are made trustees, requires that they should, in such a case, take the risk of loss, and, that there should be no inquirypermitted into the good faith of such transactions, the secret springs of which, in most cases, it would probably be impossible to discover.
In the third place, the evidence shows that the parties made, and in part executed, a settlement between themselves, on a basis inconsistent with the position now taken by the appellee. That settlement was made upon the understanding that the appellee was accountable for $1,614.63 in money, and, upon that understanding, the appellants consented to accept of him, in part payment, $600 of his new bank stock. That stock is not money, and may or may not be, or have been, worth the price at which it was taken but, having accepted it of the appellee on the theory that he must account for the sum named, they have the right to have the account adjusted on that basis.
Exception is also made to some small items of costs paid by the_ appellee, but we do not find that any error has intervened in reference thereto.
A motion to dismiss the appeal in this case has been filed. In this respect, the facts are substantially the same as in West v. Cavins, 74 Ind. 265, and, in accoi’dance with the decision made in that case, the motion must be overruled.
The judgment is reversed, with costs, and with instructions to grant a new trial.