
    Banister and Wife v. M’Kenzie.
    Decided, Dec. 2d, 1819.
    i. Marriage Settlement-Powers of Trustee. — if, by a deed of marriage settlement, property be conveyed in trust, to be invested in “Bank stocks, or jreeliold lands or lots,’' — the trustee Is not thereby authorised to make the investment in united States six per cent, stock.
    Previously to the marriage of John Monroe Banister and Mary Burton Augusta his wife, a Deed of marriage settlement was made, by which it was provided that certain property real and personal, of the said Mary, should be invested in Bank Stocks, or freehold lands or lots in this State, to be held by Edmunds B. Holloway, in Trust to pay the annual profits to the husband and wife, and the survivor, for life, remainder to their children ; and, in default of such issue, to the right heirs of the said Mary. The said trustee having departed this life before the said investment was made, Donald M’Kenzie was appointed by the Superior Court of Chancery for the Richmond District, in June 1816, to act in his stead; whereupon, the parties being at that time unwilling to purchase lots or land; bank stock being high; and Government stock comparatively low; the said M’Kenzie invested nearly the whole fund in United States six per cent, stock.
    In January 1819, a Bill was filed, in the same Court, by Banister and wife; admitting that the trustee in purchasing the said 6 per cent, stock had made a very judicious and fortunate temporary investment; but remarking that such investment was not authorised by^he Deed; and, for various reasons set forth in the Bill, insisting that it would be beneficial to the complainants, as well as their right, to have the trust specifically performed, by selling the said stocks, and investing the proceeds in a tract of land.
    The trustee, by his answer, admitted the correctness of the views of the plaintiffs, and the expediency of carrying their wishes into effect; but, as they had only the life estate, and infants were interested, he considered the ^interposition of the Court necessary for his instruction and direction. He also tendered a resignation of the trust; requesting the Court to appoint another trustee.
    The infants, by their guardian ad litem, submitted the whole subject to the Court.
    Chancellor Taylor was of opinion that the purchase of the United States six per cent, stock, under the circumstances of this case, was a good execution of the trust under the deed; and therefore dismissed the Bill: — from which decree the plaintiffs appealed.
    
      
       See monographic nota on “Trusts and Trustees” appended to Dee v. Randolph, 2 Hen. & M. 12.
    
   The cause was submitted by the Counsel for the appellants; the appellees not appearing; and the following was this Court’s opinion.

The Court, not concurring in opinion with the Court of Chancery, that the purchase of the United States six per cent, stock mentioned in the proceedings, was a good execution of the trust confided to the trustee by the Deed of October 15th 1807, reverses the Decree with costs, and remands the cause, to have another trustee appointed, if necessary, and the trust carried into execution pursuant to the prayer of the Bill.  