
    *Perry v. Smoot & als.
    March Term, 1873,
    Richmond.
    Will — Investment in State Bonds. — S. made his will in 1858, and died in July 1867. He gave to his daughters S. and C. each ten thousand dollars, to he realized out of his estate by sale or otherwise, as early as practicable after his decease; and directed his executors to invest the said legacies in the bonds of the State of Virginia, in the names of S. and C. The residue of his estate he gave to his two sons, who were his partners in business, and who he appointed executors. When S. died his daughter C. was over twenty-one years of age, and capable of understanding her rights. The executors did not invest the $10,000 left to her, but retained it in their hands with her knowledge, and as they aver, by express agreement with her, and paid her the interest regularly upon it. Heed : In the condition of the country from 1867 to 1870, the executors were well justified in not investing the money in State bonds.
    Charles C. Smoot a citizen of Alexandria died in July 1867, leaving a will which was executed in 1858. For years before the date of his will and until his death he was engaged in a mercantile business, with his two sons Charles C. Smoot, jr., and John B. Smoot as partners. By his will he gave two houses and lots in the city of Alexandria to his daughter Mary Ann the wife of John Perry, and he gave to his two unmarried daughters, Susannah Adelaide, and Catharine Florence Smoot, each the sum of ten thousand dollars, to be realized out of his estate by sale or otherwise, as early as practicable after his decease ; and he directs his executors to invest the said legacies in the stock or bonds of the State of Virginia, and in the names of his said daughters
    Susannah Adelaide and Catharine Florence severally, *which said legacies he gave to his said two daughters for their sole and separate use and property', free and exempt from the debts, liabilities, and control of any husband either of them may marry, with power of disposition either in their life time or by last will. He gave all the rest of his estate, both real and personal, to his two sons Charles C. and John B.’ Smoot; and he appointed them his executors.
    In 1869 Catharine Florence Smoot having married Wm. Perry, a suit was instituted by them, and afterwards in the name of Catharine Florence byher next friend, against Charles C. and John B. Smoot, as executors of Charles C. Smoot deceased; and in the bill it was charged that the testator left an estate of not less than $150,000; that the investment of the $10,000 left the plaintiff might have been made within six months after his death; but the executors had chosen to retain- the money in their own hands, paying her simply six per cent, interest upon it; that in failing to make the investment they had been unfaithful to the trust reposed in them, and had greatly injured the plaintiff. The prayer of the bill was that the defendants may be required to purchase for. the plaintiff as much State stock as might have been purchased with 10,000, at the time the investment ought to have been made, and for general relief.
    The executors answered the bill. They say that the estate of their testator was worth about $60,000, instead of $150,000. That the devise to Mary Ann Perry and Susannah Adelaide who had married Thomas Perry, had long since been paid and satisfied. That the plaintiff at the death of their testator was twenty-three years of age, intelligent, and fully informed of her rights ; that the respondents paid her the interest on the $10,000 from the death of. their testator, and she received the *same in accordance with an agreement between them to that effect. It is true that they had not invested the $10,000 as directed by the will; but this was because the plaintiff, after a full discussion of the subject, shortly after the testator’s death, determined to leave it in the hands of the respondents on legal interest, until she should require it to be otherwise disposed of or invested; of which she agreed to give them reasonable notice. This notice came on the 1st of April 1869 in the shape of a demand from her husband about two months after his marriage with the plaintiff, for the payment of the money to himself; and his suit was brought in two days after that demand. They deny that the plaintiff has been injured by the non-investment of the said $10,000 in Virginia stock. In 1858 when the will was made, State stock was considered a safe and profitable investment; but in 1867 when the respondents commenced executing the will, they did not, in view of the great changes that had taken place since the will was made, and of the depreciated and unsettled condition of such stock, feel authorized to invest $10,000 in such unreliable and unprofitable property; and they were therefore gratified when the plaintiff, long prior to her marriage, agreed that the said money should remain in the hands of the respondents on legal interest. How it shall be invested they submit to the court.
    In August 1869 and before the defendants had filed their answer, the court made a decree in the cause, directing a commissioner to settle the account of the administration of the executors, and to ascertain and report the amount of property of every kind that came into their hands, with the description thereof; the earliest practicable time after the death of the testator at which the sum of $10,000 directed by the will to be invested in Virginia State stocks, for the sole and separate use of the plaintiff, could have been realized out of the estate *of the testator by sale or otherwise ; the market value of Virginia State stock at that time; the lowest market value of said stocks at any time between the periods at which the said $10,000 could have been realized and the date of the decree ; and what would have been the present value of $10,000 worth of registered stocks of the State of Virginia if the same had been purchased as directed by the will of the testator, and what amount of interest would have been collectible on the same up to the date of the decree.
    The commissioner reported that the estate of the testator consisted at his death of real estate $42,900, of bonds of the State of Virginia and other stocks $4,195 64, and of his interest in the partnership $15,000 =$62,195 64; that the $10,000 might have been realized and invested within six months from the death of the testator; that the market value of Virginia State stock at the end of six months from the testator’s death, was thirty-seven cents; the lowest value up to the time of the decree was thirty-six cents; and assuming the lowest value as the proper basis of the settlement, he ascertained the amount of principal which the $10,000 would have purchased, at $27, 77 77; or in United States currency $13,055 55, the interest paid by the State on that amount at $791 67, and the interest placed to the credit of the bond holders at $1,583 33=$2,375. And rejecting the claim of the executors for a credit for the succession tax on the $10,000 of $100, he stated their account with the plaintiff, showing them indebted for interest $1,683 33, after crediting them with $975 of interest paid by them to her.
    The executors excepted to the report for the failure to credit them with the succession tax, and for fixing the amount of principal due the plaintiff at $13,055 55 and interest at $1,683.
    *The cause came on to be heard on the 14th of February 1870, when the court sustained the said exceptions to the commissioner’s report; and it appearing from a statement filed, that after the application of such credits as the defendants are entitled to, there was in their hands the sum of $9,884 25 which should be invested in registered stock of the State of Virginia, it was decreed that they should make said investment in the name of the plaintiff for her sole and separate use, free from the debts and control of her husband, and that they should pay to her the balance of the interest then due to her, to wit, $524 92, and the costs of suit $57 42. And it appearing that the defendants had brought into court and delivered to the attorney of the plaintiff, the State bonds, and paid him the money as directed by the decree, the same was made a final decree in the cause. From this decree the plaintiffs applied to this court for an appeal; which was allowed.
    Claughton, for the appellant.
    Smoot, for the appellees.
    
      
      See principal case cited in Cooper v. Cooper, 77 Va. 303.
    
   STAPUFS, J.

The -testator, Charles C. Smoot, died in the city of Alexandria on the 31st of July, 1867. By his will, bearing date February 16th, 1858, he devised to his daughter Mary A. Smoot, certain real estate in said city; to his daughters Susannah A. Smoot and Catharine F. Smoot he bequeathed the sum of ten thousand dollars each, to be realized out of his estate, by sale or otherwise, as early as practicable after his decease; and he directed his executors to invest said legacies in the stocks or bonds of the Commonwealth of Virginia. All the rest of his estate, real and personal, the testator devised and bequeathed to his sons Charles C. Smoot and John B. Smoot, whom he appointed his executors. The *will was admitted to probate, and the executors qualified in October 1867. The legacy to Susannah A. Smoot has been paid or arranged by the executors. The whole controversy in this case grows out of the failure of the executors to invest the ten thousand dollars given to Catharine P. Smoot, according to the directions of the will.

It is insisted by the complainants, that the investment ought to have been made as soon as it was practicable after the death of the testator; and that it was practicable so’ to do, at any time within six months after that period. Not having made the investment at the time they should have made it, the executors are answerable for any loss by the subsequent rise in the price of the stock. It is certainly true that where a trustee is required by the terms of the trust to invest in public securities funds in his possession, and instead of doing so, he appropriates them to his own use, or otherwise, unreasonably delays the investment, the cestui que trust has the option of charging him with the principal sum and its interest, or- with the amount of stock he might have purchased with the money. And the same rule applies to an executor, who is also a trustee, but having fully administered the estate retains the legacy in his possession, not as assets of the estate, but as trustee of the legacy. In all such cases the trustee or executor is regarded as a wrong doer; and as such, he is compelled "to place the injured party in the same situation he would have been in if the wrong had not been done. But, where the executor has received no funds for investment, and is required to raise them in the course -of his administration, there can be, in the nature of things, no fixed rule as to the time within which the trust is to be executed. The farthest the courts have gone, is to say that the investment must be made within a reasonable time. What is a reasonable time depends upon all the ^circumstances of the case. In one •instance a year from the testator’s •death was considered a reasonable time for the purchase of United States stock. This rule was adopted in analogy to the payment •of legacies. In another case the same period was regarded a reasonable time, although the trustees were directed to invest in the purchase of land with all convenient speed. Perry on Trusts, 462, and cases there cited; Hill on Trustees 370-371. And under our •statutes the executor is not compellable to •pay any legacy given by the will, or make distribution, until after a year from the •day of his qualification; and even then he can only be required to make such payment •or distribution upon being secured by proper refunding bonds.

In this case the executors qualified in October 1867. The estate which came into their hands is estimated by complainants at one hundred and fifty thousand dollars. The commissioner, however, reports it as of the value of sixty-two thousand dollars only. It consisted of real estate valued at , forty-two thousand dollars, the interest of the testator in an unsettled partnership amounting to fifteen thousand dollars, and certain stocks and securities not exceeding four thousand dollars. Prom such sources the executors were required to raise the large sum of twenty thousand dollars. The testator was well aware of the difficulties they might encounter in carrying out his wishes. He therefore directed that the legacies should be realized out of his estate, not immediately, but by a sale as early as practicable after his decease. He did not intend that his sons should sacrifice the property given to them in paying the legacies to the daughters. He no doubt had entire confidence in the integrity and sound judgment of the former, and it was his purpose they should exercise a fair and liberal discretion in carrying out his instructions.

*I think that discretion has not been abused; and that the executors were' well justified in declining" to make the investment. The condition of the State politically and financially from October 1867, to January 1870, when the decree complained of was rendered, is a matter of public history. The reconstructipn acts passed in the beginning of the year 1867 declared that no legal Governments existed in the States south. Virginia was denominated Military District No. 1, and as such was placed under the control of a General of the Federal Army; her judicial, executive and ministerial officers were removed, and their places occupied by Military appointees, and all the departments of the Government, with all the great interests of the State, political and financial, subjected to a Military denomination acknowledging no constitutional responsibility. How long this state of things was to continue no one could foresee. Reflecting men, attentive observers of the times, were profoundly despondent of the future. They believed the termination of the Military power would be followed by the establishment of a civil Government greatly more disastrous to the prosperity of the State. Whether these fears were well or ill-founded, whether they would have been realized in any event, it is not our province to inquire. It is certain that this condition of things exerted a most depressing influence upon the spirit and temper of the people, upon all the industrial interests of the State, its credit, its business and its progress. The effect upon the credit of the State is apparent from a single fact disclosed by this record, that in 1867 and 1868 State bonds commanded in the market about thirty-eight cents in the dollar only. Capitalists might purchase such securities upon speculation, but few would regard them as safe and judicious investments. The executors no doubt acted upon these views. *They wisely abstained from embarking the fortune of their sister in securities which did not and could not command public confidence, and might, at any day become utterly worthless in the ■ commercial world.

All the circumstances and facts of the case tend to show that complainant throughout was informed of the failure of the executors to make the investment. She resided in the same town with them. At the death of the testator she was over twenty-one years of age, and fully competent to understand her rights. If the investment had been made, the bonds would have been in her possession, and the interest collected from the State by her authority alone. But instead of this she receives from the executors annually a sum or sums equal to the yearly interest upon the amount of her legacy. She received the payments without objection or complaint, although she must have been apprized they were made by the executors as borrowers of the fund due her. In Byrchall or Bradfield, 6 Mad. R. 148, cited by complainant’s counsel, Sir John Teach directed an enquiry by a commissioner to ascertain whether the legatees were informed at any time that the executor had retained the legacy in his hands. It appeared that he had so retained it for ten years, paying interest to the ces-tui que trust under a representation that the legacy had been invested according to the trusts. Under these circumstances the executor was required to furnish the stock which might have been purchased when the investment ought to have been made. It is fair to presume a different decision would have been made, if it had appeared that the cestui que trust had accepted the interest knowing the funds were retained by the executor. In such case he would be treated as a borrower and not as a wrong doer. In this case there is nothing to impeach the good faith of the executors. Their conduct throughout evinced a desire to perform *the duties imposed by the will, with a due regard to the interest of all the legatees.

Eor these reasons I am of the opinion the decree should be affirmed.

The other judges concurred in the opinion of STAPEES, J.

Decree affirmed.  