| Ill. | Jan 15, 1892
delivered the opinion of the Court:
It is very clear, from the evidence in this case, even that of "the appellant himself, that he has a very erroneous conception •of his duty as trustee, or has willfully disregarded that duty. It is the duty of a trustee holding -funds in trust, with no express or implied directions in the instrument creating the trust as to the management of the fund, to invest the same in .good and safe securities. (Willis on Trustees, 125.) He has no right to convert money into land, or land into money, at his pleasure, unless specially authorized. (Kaufman v. Crawford, 9 W. & S. 131.) He has no right to confuse the trust fund with his own moneys, nor can he use the same for his own benefit or profit. There can be no question that it was the clear duty ■of appellant, having accepted the trust imposed upon him by the will of his father, upon receiving the trust fund, to loan the ■same on sufficient securities, at lawful interest, exercising the same care and diligence as in the transaction of like business for himself, collect the interest annually, and pay it over to his brother Samuel. If at the death of said Samuel his youngest •child had not reached its majority, then it would become his duty to continue to loan said money, adding the interest to the principal, until the majority of said youngest child, and then divide it equally among said children. Then, and not until ■-then, would his trust cease. While the duties thus imposed upon him are onerous, they are well defined and easily understood. He admits that he has, from the first, confused this fund with his own money; that he has invested a large amount •of it in other real estate and taken the title in his own name, and while he denies that he paid for the eighty acres of land ■described in the bill wholly out of said trust money, he admits that he did so apply $600 thereof, and we think the court below -was justified by the evidence in finding that the whole of the ■purchase money came from that fund. Having confused that .money with his own, and admitting that a part of the trust. fund was put in this land, he is estopped to deny that it shall-he treated as trust property, if the cestui que trust so elect. There can be no doubt as to the right of a cestui que trust, as against his trustee, to pursue the trust fund into whatsoever - investment of it the trustee may make, or, repudiating the investment, compel him to pay over the money. It may be true that Samuel B. F. Sholty has, by his agreements, estopped himself from claiming the “interest and profits” on the trust fund, but his children are certainly not bound by any such ■ agreements. It seems impossible, therefore, to render a final decree on the present bill which will conclude them. Even as between the trustee and Samuel B. F. there is no final decree, and therefore this appeal is prematurely taken, and should be dismissed.
It will be seen, from the foregoing statement, that the controversies between appellant and appellee Samuel B. F. Sholty grow out of the purchase by appellant of the land mentioned' in the bill. Not only is the title to this land put in issue by the pleadings, but the right of Samuel to occupy and use the • same is also involved. If/ as the court below has found, appellant holds that property in trust for Samuel and his children, under the terms of the will of Jacob Sholty, the question still remains, is he entitled to possession thereof as such trustee, or can Samuel, one of the beneficiaries, occupy and use ■ the same so long as he lives, to the exclusion of the trustee.. On that branch of the case there is no final decree. Samuel is left in possession, and appellant enjoined from disturbing him, not absolutely, but until the further order of the court, either party being given leave to apply to the court for relief' as occasion may require. In fact, it would seem from the last clause in the decree that the court only intended its order to - be interlocutory, and not a final decree on any of the issues presented in the case. But however that may be, at least one material issue remains undisposed of. It is only from final judgments or decrees that an appeal will lie to this court, and..a party can not bring his case here by piecemeal. “A cause-must be finally disposed of in the court below before either party can carry it to the appellate court and assign errors on the record.” This we have so often decided that to cite the cases would be a superfluity. The rule has peculiar application to this case, because, if the decree of the court below is sustained in holding said land to be trust property, and appellant allowed to continue in his trust, it becomes of the first importance to determine how far, if at all, he can be restrained by the court in the free use and management of such trust, property. Until a final decree has been rendered in the circuit court no decision of this court can have the effect to settle the-rights of the parties.
The appeal will be dismissed.
Appeal dismissed.