Lewis v. Cook

18 Ala. 334 | Ala. | 1850

DARGAN, C. J.

The object of this bill is to remove the trustees, appointed by the executor to manage the trust fund, and to convert it into slaves. Were we to do this, we should violate the plain intention of the testator. The clause of the will, by which the fund is bequeathed, is in the following language’: “ I also give unto her (Caroline Lewis) and her children five thousand dollars in cash, as soon as it can be collected, to be put at interest for the benefit of Caroline Lewis and her children, by the trustees; this I wish to be a separate estate.” Here the testator gives plain and specific directions how the trust funds shall be employed, and we know of no principle that that will justify a conversion of the funds into other personal property, at the request of one of the cestuis que trust, the others being infants, when there is no necessity for it, but upon a speculating idea, that the money could be more profitably employed by the conversion than by pursuing the directions of the testator. The general rule, regulating the conduct of trustees in reference to the management of the trust estate, is this, that where special instructions are given in the instrument creating the trust, the trustee should strictly pursue them, (2 Story Eq., § 1276,) and if he depart from the directions, he is liable for any loss, however honest and fair his intentions may have been. Pride v. Fooks, 2 Beav. 430. As the trustees themselves cannot violate the instructions of him, who creates the trust, without subjecting themselves to responsibility, surely the court will not interfere and order it to be done against their wishes, at the request of one of the cestuis que trust, the others being minors.

The trustees so far have pursued the directions of the testator; they have employed the trust funds as directed, and it yields the lawful interest in the State of Georgia, where the testator resided at the time of his death, and where the funds were. They cannot be removed because they do not loan out the money in another State, where the legal rate of interest is higher. In reference to the kind of security, however, they take for the re-payment of the money, it may be well to observe, if it be personal security only, and the money should be ultimately lost, it would be difficult for them to acquit themselves of liability; but as they show by their answer that they consider the fund entirely secure, we will not undertake to decide this question, which in all probability will never arise.

Let the decree of the chancellor, dismissing the bill, be affirmed.