
    Jameson’s Legatees vs. Shelby, Ex’r. et al.
    
    1. Shelby, executor, transferred and appropriated to his own purposes, thirty 'shares of Bank stock, belonging to the legatees of Jameson, deceased: Held, in a 'bill filed against'him for an account thereof by the legatees, that he was liable for 'the whole of the stock at the time of the transfer, and interest thereupon from that time till-the decree.
    2. Where the answer of the defendant sets forth and shows a state of facts which ■entitles the complainant to a decree, the complainant is entitled to such a decree, though the bill may not by its allegations make out such a case.
    3. Where, however, the bill prayed only a decree for an account of thirty shares •of Bank stock, and the answer of the executor alleged, that he, as executor, was indebted, on settlement with commissioners appointed by the county court, to the 'legatees, $756; that he had executed his note therefor and had subsequently paid -said note: Held, that this state of the pleadings did not authorise a decree against the defendant for such sum, the answer not making on the face thereof a case .proper for a decree.
    This bill was filed in the chancery court at Franklin, on the -4th day of April, 1834, by Eleanor Jameson, against John Shelby executor of the last will and testament of her deceased husband, William C. Jameson, and against- D. S. Jameson, praying a de-'creefor an account of thirty shares of stock in the Bank of Nashville, belonging to the legatees of the estate of said Jameson •■and converted by said Shelby.
    4t appears that in 1821, William 0. Jameson, a citizen of Montgomery county, made his last will and testament and died.- This-will appointed John Shelby and others,- executors. No one, however, qualified as executor except Shelby. It directed, (after disposing of a portion of his estate, in which was not included Bank stock,) that the rest and residue of his estate, real- and personal, should go to his wife “for the- support of herself and children during her natural life or widowhood.” The-testator was possessed of thirty shares of stock in the Nashville Bankamounting to $1500 in nominal value. On- the 7th day of January,-1824, Shelby, as executor, transferred to himself individually the stock on- the. books of the Bank and subsequently converted it to his own private purposes,- at a- loss of twenty-five per cent. The bill charges, that this transfer and appropriation was made without the consent- or knowledge of the complainant. The answer of Shelby denies this allegation,'and charges that it was done with her approbation. T. Claiborne, a witness, states, that he advised Shelby to transfer the stock to himself, as it would secure to the representatives of Jameson, deceased, the full value of the stock and avoid the loss consequent upon possible depreciation. The stock at the time of the transfer was about at par. In April, 1824, Shelby went to the county of Montgomery, where the will was recorded and letters granted to him, and there tendered a resignation of his executor-ship of the estate to the county court. This was received by that body and David S. Jameson appointed in his stead. The bill charges, that this proceeding was irregular, void and done without the consent or knowledge of complainant. The answer expressly declares that it was done in accordance with the expressed wishes of complainant. Commissioners were thereupon appointed by the county court to make a settlement with Shelby, who, upon investigation, ascertained Shelby to be in debt to the estate the sum of $756, exclusive of his indebtednes on the account of Bank stock converted. Shelby thereupon executed his note to D. S. Jameson, as administrator with the will annexed, for the amount returned against him, and delivered the same to said Jameson which was received by him. At the same time, Shelby executed a bondin the penalty of $3000, to transfer to the heirs of W. C. Jameson,'.deceas-ed, fifteen hundred dollars of the stock of the bank, on the 24th day of April, 1826, and in the interval to pay the dividends which might be declared from time to time on said amount of stock.
    David S. Jameson received this bond in discharge of the claim. of the estate against Shelby on the stock-account. Shelby payed the dividends, but did not transfer the stock. The stock in the meantime had greatly depreciated; The bill was filed not for an account of the entire estate, but was confined to the singlé item of stock which had been converted by Shelby and not accounted for. The answer set forth the bond executed for the transfer of stock in 1826, and contended that the defendant was chargeable with the value of the stock at the period he obligated himself to transfer and not at the time of the transfer to himself. The answer also set forth the settlement with the commissioners in Montgomery county, the execution of' the note for $756 to D. S. Jameson as administrator with the will annexed, and insisted that he had paid the note with the exception of $55, which it alleged, he still Owed and was willing to pay.
    In the progress of the suit, Eleánor Jataeson died, having first made her last will and testament, bequeathing her estate to her children by her deceased husband. The suit was revived in their name. It came on to be heard ott the bill, answer, replication, exhibits and proof, at the April term, 1839, of the chancery court at Franklin, Bramlett, presiding.
    The chancellor decreed to complainants the value of the stock at the time when Shelby obligated himself to transfer it, to wit, in 1826, with interest thereupon from that date. He also decreed, that Shelby account to them for the sum paid to D. S. Jameson, with interest, and gave Shelby a decree for an account against Jameson. From this decree the defendant appealed to the supreme court.
    
      Washington, for complainants.
    
      Meigs, for Shelby.
   Reese, J.

delivered the opinion of the court.

1. In discussing the decree of the chancellor in this case, the complainants insisted, that the value of the Nashville Bank stock, the only subject in the bill, should, in taking the account between the parties, have been estimated as it existed in the year 1824, when the executor transferred the stock, then standing upon the books of the bank, in the name of the executor, to himself individually; and that interest from that time should have been computed upon such ascertained value. The objection to the decree, we think, is well taken. For although there is no reason to question the fairness of the motives under which the defendant, in the transfer acted, still the transfer having been made to himself, and the stock having subsequently been used by him for his individual purposes it must be held to have been ah appropriation and conversion of the stock from the time of the transfer.

2. On the part of the defendant it is insisted, that the decree is erroneous in holding him liable to account for the $756, mentioned in the answer as the balance due from him on settlement with the commissioners of the county court of Montgomery county, and for which he then alledged he gave his note to complainant in the original bill, because no claim for it is set up in the bill, nor any charge on the subject made or even any interrogatory propounded, and because, therefore, not put in issue. And to maintain this ground we are referred to Story’s Eq. Pl. 36, and 88, and Gr’s Ev. 22, 23, 1 Ves. 338, 339.

This court, in the case of Rose vs. Mynatt, 7 Yerg. Rep., held that when a case is made out in the the answer differing in the grounds and principles of equitable relief from that set forth in the bill, still, if the answer shows a proper cause for relief, the court will decree it. But that case materially differs from this, for here the answer upon this point does not make out any case for relief. It contains the matter of charge, indeed, but it also contains the matter of discharge; the defendant says he paid the $756 to the son and agent of the complainant, with her authority and sanction. Here, then, is no case made out in the answer, upon which, of itself, the court would be warranted in grounding a decree. And if the complainants had wished to avail themselves of the matter of charge contained in the answer, and to disprove the matter of discharge also contained therein,'it would have been necessary to have amended the bill, and by proper allegations to have put the matter in issue. For the bill does not seek for an account of the administration, but goes for the thirty shares of Bank stock only. The fifty-five dollars, however, admitted in the answer and which the defendant acknowledges he still owes, stands upon a different ground, and falls within the principle of the case of Rose vs. Mynatt, above referred to. The decree will, therefore, be reformed in conformity with these views.  