274 N.W. 652 | Minn. | 1937
1. Upon remittitur, it is the duty of the court below to execute the mandate of this court according to its terms, without alteration, modification, or change in any respect. Piper v. Sawyer,
It is claimed that the court below had power to surcharge the account with interest because the surcharge ordered by this court carried interest with it as a part of and incident to the amount allowed. Interest does not accompany the surcharge. Where in a proper case the trustee is chargeable with interest the interest would be included in and covered by the amount surcharged. Ordinarily, when a trustee is held liable for interest, the interest is awarded upon equitable principles as compensation for damages to the cestui "to make him whole, to place him in the position he would have been in if the trustee had performed his duty." 4 Bogert, Trusts Trustees, p. 2503, § 863. What is called interest is really damages, computed in terms of interest. Mason v. Callender, Flint Co.
The record does not reveal any agreement by the trustee to pay interest on the funds in its hands. Although permissible, such an agreement is generally foreign to the trustee's undertaking. A trustee is not liable for interest merely because he holds money or securities for the beneficiary. Whether interest will be allowed when the trustee's account is surcharged and at what rate is within *489
the discretion of the court and must depend upon the facts and circumstances in each particular case. 4 Bogert, Trusts
Trustees, p. 2503, § 863; 65 C. J. p. 824, § 707; 1 Perry, Trusts Trustees (7 ed.) p. 794, § 468; Rapalje v. Norsworthy's Excrs. 1 Sandf. Ch. (N.Y.) 399; Price v. Holman,
The court below found that in the purchase of the O'Donnell and Hancock bonds the trustee had acted in good faith. On the Hancock investment $1,499.66 was received and turned over to the beneficiaries. The surcharge of $7,500 allows the beneficiaries to repudiate the purchase of the bonds and receive the amount originally expended for them. In their motion to amend the first decision the beneficiaries did not ask for a surcharge of interest but only for a surcharge of $7,500. The decision of this court followed the prayer for relief. The allowance of interest by the court below on the surcharge ordered would have involved the exercise of discretion which that court did not possess in pursuing the mandate of this court.
2. The trustee was allowed $278.20 expenditures in connection with the O'Donnell and Hancock bonds. The opinion directed that there be no allowance for these expenses, and the mandate ordered the court below to modify its conclusions of law in accordance with *490 the views expressed in the opinion. Therefore these expenses should have been disallowed, and it was error not to do so. There must be a reversal to that part of the order allowing the trustee expenses in connection with the O'Donnell and Hancock bonds.
Affirmed as to denial of interest on the $7,500 principal amount surcharged, and reversed as to allowance of $278.20 expenses in connection with the O'Donnell and Hancock bonds.