
    JOHN N. WASHINGTON, cum tes. ann., against THOMAS R. EMERY and others.
    
    Where there was a general residuary clause in a will, directing a division of the fund when A might come of age, between such of the testator’s grandchildren as might then be alive, and one of the grandchildren died, in the lifetime of the testator, before A came of age, it was held that the part intended for such deceased grandchild fell into the residuum, as property not otherwise disposed of, and did not go to the next of kin.
    Whore a trustee changes an investment without the direction of a Court of Equity, ho takes upon himself the onus of proving- entire lona fides, and that there was reasonable ground to believe that the fund would bo benefited. Where, however, he is able to make such proof, the court will sustain his act..
    Where a trustee- making a change in an investment is interested in a large-portion of the fund, ho will be regarded in a different light from a naked trustee, and a presumption is raised that he acted with good faith.
    This Court will sanction tlie act of. a representative of a deceased person, in making small gratuities to slaves, at particular times, as-- encouragement to good conduct, where such had been the usage of the deceased owner.
    Five per cent, commission is not an excessive allowance by the way of commissions on moneys raised on the hire of slaves.
    The bill was filed by the plaintiff as the administrator with-the will annexed of Mrs. Eliza Tail, for the auditing and settling the estate in his hands, and to that end he asks the Court todeclaro the rights of the legatees in several particulars wherein ho thinks his duties, as administrator, are doubtful; and his-course unsafe, without the instruction of the Court. One item, in the will of Mrs. Tail, gives a share of her estate to-the plaintiff, in trust for lier grand-son,.Benners Vail; with a limitation over to his children if he should leave any. Another clause’ of the said will, provides as follows :
    “ When my grand-son, Thomas R. Emery, arrives at the-age of twenty-one- .years, (or earlier, if lie dies,) I wish the whole of my estate-, of every kind and description, not otherwise given away, to be equally divided between such of my grand-children as may be then alive, and the lawful issue of' such as may be dead; so- that the child or children of such of my grand-children as may be then dead, may take the part which his or her father or mother would have been entitled to, if alive.”
    Benners Tail died in the life-time of the testatrix, leaving the plaintiff’s wife, and the other parties described in the pleadings, as the next of kin, and the question submitted to the Court was, whether they took the share that was intended for the said Benners Tail, or whether it fell into the residuum, and became distributable among the grand-children, who were then alive.
    There was a charge upon the estate for the support of five superanuated slaves, and the administrator with the will annexed, asks the Court to instruct him as to the fund from which the same shall be taken, and the amount.
    There are several annuities directed to be paid during the interval between the death of the testatrix and the arrival of Thomas E. Emery at the age of twenty-one; the annuities ■were running from January till January, and from the last payment, to wit, from January, 1853, to the time of Thomas E. Emery’s death, there was the fraction of a year, and the question was, whether the annuities should be paid pro rata for that fraction ?
    The defendant answered at the Spring Term, 1857, of the Court, and at that term an order was made to take an account of the personal estate of the testatrix, in the hands' of the plaintiff as administrator with the will annexed, with the power of examining the parties on interrogatories. An order was also made, appointing commissioners to divide the slaves.
    At the ensuing term, the commissioner appointed to take the account reported, and exceptions were filed to the report by both plaintiff and defendant.
    The first exception of the plaintiff is, that he was not allowed the sum of $5400, which he paid for sixty shares of stock in the "Wilmington and Weldon Eail Eoad Company, and because the commissioner refused to recognize this stock as part of the intestate’s estate. The money paid for this stock had been invested in the note of a man by the name of Blackwell, and although his credit was generally good, yet he was known to be extensively engaged in speculations at the time of this change. He afterwards failed, quite suddenly, for a large sum, and many active and prudent business men lost their debts. The Wilmington and Weldon Eail Eoad stock, on the other hand, had, for many years, been paying dividends, and for several years last past had paid seven per cent. It appears that the plaintiff proceeded with considerable caution in making this change, taking the opinions of persons best informed on such matters. The evidence on this point, is set out by the Judge in the opinion of the Court as fully as is needed. The commissioner rejected the claim as a voucher, and plaintiff excepted.
    The administrator having hired out the slaves between the time of the death of Mrs. Yail and the arrival of Thomas E. Emery at twenty-one, allowed them small sums at Christmas, as gratuities, amounting, during the whole time, to $90. In this, he had followed the example of the testatrix, whose uniform practice it was to make such gratuities, and it was in proof, that such was the usage in that community. It was proved that the slaves of this estate were faithful and obedient. This item was rejected by the commissioner, and the plaintiff excepted.
    The commissioner refused to allow plaintiff commissions on the receipts and payment over to the legatees, of money raised from the hires of slaves, dividends of stocks, &c., for which the plaintiff excepted.
    The defendant excepted to the allowance of any commissions, upon the ground, that the plaintiff had not made any due return or proper inventory as administrator. 2nd. That the commissions allowed on the collection of notes, was excessive. The facts relating to these exceptions, are noticed by his Honor in the opinion of the Court.
    After this cause was instituted, answers filed, and an order of reference for an account, the defendant Thomas E. Emery, caused an action to be brought for his legacies, on the plaintiff’s administration bond, against the plaintiff and his sureties, to stop which, the plaintiff filed a bill for an injunction, which was issued in vacation, and at the return term, on the coming in of the answer was ordered to be dissolved, as having been irnprovidently issued ; the plaintiff appealed, and the decretal order below was affirmed. (See preceding case.) By consent, the bill was, by an order of this Court, allowed to be treated as a petition, or motion, for an injunction to issue in this cause, the plaintiff agreeing and undertaking to dismiss his other bill at next term of the Court below ; and it was insisted by the plaintiff, according to this arrangement, that he had a right to have an order from this Court, that the defendant’s suit at law shall be dismissed.
    
      J. TF Bryan, for the plaintiff.
    Haughton, Hubbard and Donnell, for the defendants.
   Pearson, J.

1st. The construction of the will: There is a general residuary clause, directing a division when Thomas E. Emery arrived at full age, between such of the grand-children as may be then alive, and the issue of such as are dead. The interest of the grand-children, in the residuum, was consequently contingent, and as it has turned out, Benners Emery, who died in the life-time of the testatrix, was entitled to no part thereof, it follows that Johnson v. Johnson, 3 Ire. Eq. 426, Dickey v. Cotten, 2 Dev. and Bat. Eq. 272, and the other cases cited, have no application. So, the share which would have belonged to Benners Emery, had he lived until Thomas arrived at age, was undisposed of, and falls into the residuum, and the grand-children, who were living at that time, and the issue of such as may have died, take this fund under the will, subject to a rateable deduction in respect to annuities and the support of the five old slaves, mentioned in the pleadings, charged on the estate, and do not take it as next of kin, free from those charges.

The day on which the payment of the annuties was to begin, not being fixed, it is clear that a rateable amount is. to be paid, so as to cover the fraction of the last year. There will be a reference to ascertain this sum, and tbe amount necessary for the support of the five old slaves.

2nd. The exceptions to the report:

The first exception on the part of the plaintiff is allowed. When a trustee changes an investment, without having applied to a court of equity for an order to that effect, he takes upon himself the onus of proving entire l)ona fides, and that under the circumstances there was reasonable ground to believe that the fund would be benefitted. The proofs sustain the plaintiff in both particulars. There is no suggestion that he made, or expected to make, any individual, or private gain by the change. He was interested in the fund to the amount of one-third. This puts the question on a different footing from that of a naked trust, and raises a presumption that the the trustee was doing what he believed to be for the best. Blackwell, whose notes were converted into rail-road stock, although his ci’edit was not openly doubted, yet, was a man of such extensive speculative operations as were calculated to impair his credit in some degree ; so that one, holding his paper, although he would not feel called on to force its collection, would desire a change, if an opportunity offered. The rail-road had been paying, and continued to pay, seven per cent as dividends, for several years, and the plaintiff had an opportunity of getting the stock at ninety dollars for a share. He did not make the investment hastily, but consulted with persons whose opinions were entitled to respect, and the stock of this road was looked upon as established, and stood upon a footing entirely different from that of a road just struggling into existence, where so many interests and considerations are collaterally brought to bear as inducements for subscribing, and subscriptions are often made under excitement. Besides all this, Blackwell has, in the mean time failed, suddenly, for a very large amount, so that but for the change of investment, this part of the fund might have been lost, without being chargeable to the trustee, unless he could have been fixed with greater negligence than that of the many prudent, business men, who lost their debts by Blackwell’s failure.

The second exception is allowed. The point is fully covered by the doctrine discussed and established in the case of Waddill v. Martin, 3 Ire. Eq. 563, in regard to the crops of cotton, corn, &c., that masters allow their slaves to make for their private use. "We entirely concur in the conclusion that policy, as well public as private, sanctions that degree of indulgence which justifies the personal representative in acting towards slaves as the master had been in the habit of doing, and it seems in that section of the State, it is usual for masters to give slaves, who are hired out, presents at Christmas, when the year ends, and for the hirer to allow each slave twenty-five cents at the end of every week as an inducement to good behavior.

The third exception is also allowed to the extent of two and a half per cent as commissions on receipts, as set out. "We take a distinction between receiving dividends on bank stock, state bonds and the like, and receipts by the way of negro hire, which is very troublesome, compared with the amount raised, and is often unpleasant, as it is difficult to find hirers against whom the slaves will not make complaint.

The exceptions on the part of the defendant are both overruled. The first is not sustained in point of fact. The plaintiff did file an inventory, which was sufficiently specific when explained by the statement, that he had charged himself with all of the notes of his testatrix as good, except those of Blackwell, which were invested in rail-road stock as referred to above, with which he is charged.

In respeet to the second, we think five per cent upon the hires of slaves, is certainly not an unreasonable allowance, considering that it is troublesome and unpleasant, and the amount does not swell up as in the case of the sale of slaves.

Upon the hearing of a motion to dissolve an injunction brought up to this term by appeal, in a cause pending in the court below, between the plaintiff and Thomas E. Emery one of the defendants, the plaintiff had leave to treat his bill as a petition or motion in this cause, and the answer of the said Emery as a reply thereto, upon the undertaking' of the plaintiff to dismiss his bill at the next term of the Court below. Thereupon, the plaintiff insists that he is entitled to an order directing the defendant, Thomas E. Emery, to dismiss the action, which he lias commenced against the plaintiff and his sureties on the administration bond. The Courtis of opinion that the plaintiff is entitled to the order. The j urisdiction of a court of equity for the settlement of estates is well established. After a decree for an account, the course of the court is to prevent any of the parties from resorting to a separate proceeding ; on the ground, that it would interfere with the orderly action of the court, and defeat the end for which jurisdiction was assumed, and is supererogatory and vexatious. To this end, a petition may be filed, or a motion made in the cause. Adams’ Eq. 483-4-5, and notes; Simmons v. Whitaker, 2 Ire. Eq. 129. If the proceeding was commenced before the decree for an account was entered, the order is to stay its further prosecution, but if it be commenced after the decree for an account, it is proper to require the party to dismiss, as being useless and vexatious. In this case, the action at law was commenced after the decree.

It is insisted that the defendant had a right to sue at law, and the proceeding is not obnoxious to the charge of being useless and vexatious, because it extends to the sureties on the bond, and is, therefore, a moré certain remedy. In the absence of a direct allegation that the plaintiff is insolvent, or unable to perform the decree that the defendant expected to obtain against him, we are forced to look upon the action at law as useless and vexatious, or at all events, as interfering with the jurisdiction of this Court after it had undertaken to adjust the rights of the parties, and as not calculated to benefit the plaintiff in the action. If the bond covers only a breach of the plaintiff’s diríja as administrator, the party’s remedy at law, is much more restricted than in equity. If the bond extends to a breach of the plaintiff’s duty as trustee, (a question which we cannot decide, as the bond is not before us,) a court of law is clearly incompetent to administer the right.” It cannot put a construction on the will, nor can it decide upon the liability of the trustee in respect to changing the investment of a part of the fund ; so, the action can do no good, and ought not to have been instituted. If the plaintiff fails to perform the final decree, a supposition which we are not now at liberty to make, the remedy against his sureties will be open.

Peb Curiam. Decree.  