Mades v. Miller
2 App. D.C. 455
D.C.
1894
Check Treatment
Mr. Justice Shepard

delivered the opinion of the Court:

1. The house and lot, the distribution of, the proceeds of which is in controversy, was taken out of the disposition made in the will by the terms of the codicil. These terms are plain in their meaning, and afford no room whatever for construction. It was the-plain duty of the executors, on January 24, 1887, to pay over to each of the four distributees his or her due proportion of the net proceeds of the sale. There was no excuse for withholding the share of Charles F. Miller and forcing him at last to the expense of a suit to obtain possession of it. The executors were in default after that day. If they then entertained a reasonable doubt or difficulty, with respect to the disposition of the money, it was their duty to apply to the court for advice, and they could have brought the fund into court if they desired. Dunscomb v. Dunscomb, 1 Johns. Ch., 508.

*460They held the money for more than five years, making no attempt to invest it for the benefit of Charles F. Miller, and paying him no interest. Believing, as they contended they did, that it was the testator’s intention they should hold the money during the lifetime of Charles F. Miller, in order to preserve the principal for his children, it was their duty to invest it safely, so as to produce some income for him.

Where money remains in the hands of trustees beyond a reasonable time the burden is on them to explain and justify their failure to invest it, in order to relieve themselves from being made to account for interest thereon. Lent v. Howard, 89 N. Y., 169; Knowlton v. Bradley, 17 N. H., 458; Ringgold v. Ringgold, 1 Harris and G., 11.

They undertake to excuse themselves by saying that they could not safely invest the fund, because they might be called on by order of court to pay it over at any time, and hence were compelled to keep it in readiness to pay over immediately after notice. This excuse is not sufficient. Dunscomb v. Dunscomb, supra; Judd v. Dike, 30 Minn., 380.

2. But without regard to other considerations, the fact that the money was deposited in bank by Mades, mingled with his own and subject to his check at all times, renders both him and his co-executor, who acquiesced in this disposition, liable for legal interest on the fund during the whole time of his possession. The true doctrine in this regard is laid down by Chancellor Kent in Dunscomb v. Dunscomb, supra, as follows: “If the money has been mingled with their own moneys, it has answered the purpose of credit, and the rule is settled that executors and other trustees are chargeable with interest if they have made use of the money themselves, or have been negligent either in not paying the money over, or in not investing it or loaning it so as to render it productive. The rule is founded in justice and good policy; it prevents abuses and it indemnifies against negligence.” This rule is supported by the great weight of authority. Ringgold v. Ringgold, 1 H. & G., 11; Cannon v. Apperson, 14 Lea, 553; Simpson v. Feltz, 1 *461McCord Ch., 213; Knowlton v. Bradley, 17 N. H., 458; 1 Perry on Trusts, Sec. 458.

The report of the auditor is in accordance with the decree of the court referring the cause to him for the calculation of the interest, and it would seem that the appeal should have been taken from that decree; but we have treated it as properly taken from the decree overruling the exceptions to the report.

There being no error in the proceedings below, the decree must be in all things affirmed; and it is so ordered.