
    H. D. Lester, Trustee, &c. v. Allen W. Vick et als.
    
    I. Executoes. Bond of. Trusts of the will. Under the Act of 1838, e. Ill, s. 18, the sureties of an executor are liable for the performance of the trusts created by the will, whether sucb as relate to the office of executor, or continuing trusts relating to the preservation and management of the property for the benefit of devisees for life, and remainder-men.
    2. Same. Will. Loan. Investment. Where a will directs a trustee to keep a fund loaned out, there is no authority for investing it in real estate.
    FROM WILSON.
    Chancery Court at Lebanon, J. P. Steele, Ch., presiding.
    JORDAN Stokes and B. J. Tarver, for complainants.
    Mr. Stokes insisted that the character of trustee and executor were consistent, and may coexist; in which it differs from the offices of executor and testamentary guardian, the latter of which succeeds or follows the former; that this will does not separate the capacities of trustee and executor. The words of the Act of 1838, c. Ill, s. 18, embrace the case. If he took the fund as executor, he could not discharge his sureties from their liability by a subsequent holding as trustee: 2 Bedf. on Wills, p. 64, § 13; Hwnter v. Bry-son, 5 Gill & Johns, 483. But there is no act to change the character of holding: Hill on Trust., pp. 237, 239, 364. He settles as executor 29th June, 1860, and 25th September, 1861, as executor and trustee. He loaned the fund; as executor, up to May 15, 1862, and left it so when he died.
    
      B. J. Tarver cited, on the accountability of trustees, Carter v. Holland, 11 Hum., 333; Draper v. Joiner, 9 Hum., 614; Code, 2513; Story Eq., § 1272; 3 Lead. Gas. in Eq., 744, m.; 2 'Wms. on Exr’s, 1539 and n.; Hill on Trust., 558, top and n. He insisted that Carroll v. Bosley, 6 Yer., 222, did not apply, and cited Boss v. Wharton, 10 Yer., 192, as construing it. Change of character of holding, 9 Mete., 525; Perkins v. Moore, 16 Ala., 9. Insisted that the proof showed a continued holding as executor.
    J. W. Hear & Son, for defendants,
    insisted that a party would be regarded as holding, as he ought: Harris on v. Ward, 3 Dev., 417; State v. Hearst, 12 Mo., 365; Lasley v. Lasley, 1 Duval, 119; Carroll v. Bos-ley, 6 Yer., 222; Drane v. Bayless, 1 Hum., 174; 2 Hawks, 512; 19 Beav., 409. Probate of will; acceptance of trusts: Hill on Trust., 214 Code, 1974, does not affect the validity of acts of trustee, who does not give bond. Change of character of holding: Hill on Trust., m. 214, 215; Knight v. Loomis, 3 Me., 294; Wheatley v. Badger, 7 Barr, 467; 2 Barr, 325.
   TurNEY, J.,

delivered the opinion of the Court.

The decree of the Chancellor is reversed.

Jemima Carr died in Wilson county in 1857, after having made a last will, in which occurs a provision in these words:

“I direct that my executor sell my two slaves,' Amanda and Alexander, which he may do at private sale, in order to secure for them good masters. I prefer that they should select their masters, provided they select men that will buy them at a fair price. The proceeds of said slaves, and the money I have at interest, I give to Dabney Carr, in trust, for the use and benefit of my said daughter, (referring to Martha Johnson,) and her children, during the life of said daughter, Martha Johnson, above named.
“In the execution of this trust, he will give my said daughter one-half of the interest, annually, for her sole use, and use the other half in paying for the schooling and other necessary expenses of her children, during the natural life of said Martha Johnson; and at her death, the whole of said fund is to be equally divided between her children then living, unless some of said children should die during her life time, leaving . children of their own. In that event, such child or children shall represent the parent in said division,”

Dabney Carr was appointed executor of the will, and qualified and gave bond at the October Term, 1857, of the County Court for Wilson County.

This bill is filed to have the administrator of the estate of Dabney Carr, and his securities upon his executor’s bond, account for whatever of the estate of Je-mima Carr came to his hands, or ought to have come to his hands, under the will.

It is insisted for the defendants, that Dabney had made his final settlement as executor, and had assumed to control the fund as trustee, and the loss by him or on his account, if any, occurred while he was acting as trustee, and after he had settled and ceased to act as executor; therefore, the securities upon the bond as executor are not liable for the devastavit.

Whether he was acting in the one capacity or the other, when he appropriated or misapplied the fund, can make no difference in' this particular case, as section 18 ,of the Act of the 26th of January, 1838, which was, at 'the time of the execution of the bond, in force, provided: “That all executors hereafter qualified, and their securities, shall be liable upon their bonds for the performance of all the trusts of the will which they are required to perform, and all duties devolving upon them as executors, as well in relation to the- real as personal estate; and, in like manner, administrators hereafter appointed, and their securities, shall be liable upon their bonds for the performance of all the trusts and duties of their respective offices, as well in relation to real as personal estates; and such bonds, when taken in the forms heretofore prescribed, shall bind such executors and administrators, as herein provided.” Nicholson’s Supplement, 181.

This statute is broad, comprehensive and explicit, leaving no place for the escape of the securities under the defense made in their answer and argument.

By the. bill, we are asked - to construe the will. The provision is so plain we can see no course for the trustee to pursue, other than to keep the money at interest, upon safe and ■ prompt security, collect the interest annually, and apply it as directed. There is no authority for its investment in real estate, as prayed for.

A report of the Clerk and Master shows the amount of -money for which Dabney Carr and his sureties must account. A decree therefor will be entered here.

On the 25th of February, 1871, a petition for rehearing was refused in this cause, and reference made to Porter v. Moores, decided on that day. 
      
       See Porter v. Moores, February 25, 1871, post—.
     