
    William Pearce vs. William Venning.
    
      Will-Power.
    
    Testatrix devised and bequeathed the sum ot $7,500, some real estate, and certain slaves to Y. in trust, to pay the income to P. for life, with limitations over, and declared that it should be lawful for the trustee, with the consent in writing of P., “to dispose of.the whole or any part of the said real estate and other property, and to substitute other property, real or personal, in the stead thereofHeld, that the power had relation only to the real estate and slaves, ancl not to the pecuniary legacy of $7,500, and therefore, that as to the latter, Y. could receive and invest the same without the consent in writing of P.
    BEFORE LESESNe! CH., AT CHARLESTON, FEBRUARY, 1867.
    The decree of his Honor, the Chancellor, is as follows:
    Lesesne, Ch. Mrs. Ann Yenning died in 1854, leaving a will, whereby she gave ancl devised to the defendant, William L. Yenning, the sum of seven thousand five hundred dollars, ($7,500,) some real estate, and certain slaves, in trust, to receive and pay over to the plaintiff, during his life, the rents and profits, interest and income, and upon his death, in trust for his children, with contingent limitations over; and declared that it should be lawful for the said trustee, with the consent in writing of the said William Pearce, “to dispose of the whole or any part of the said real estate and other property, and to substitute other property, real or personal, in the stead thereof,” to be held for the same uses.
    The legacy of seven thousand five hundred dollars, ($7,500,) was paid in a bond of William Lucas for two thousand five hundred dollars ($2,500,) and a bond of T. D. Wagner for five thousand dollars, ($5,000,) secured by a mortgage of a plantation in Christ Ohurch parish. Wagner’s bond being past due, was paid in 1859, and the money invested in a bond of P. P. Bonneau, secured by a mortgage of the same plantation. In January, 1863, Bonneau’s bond being past due, was likewise paid to the trustee, and'the money invested in eight per cent, bonds of the Confederate States of America, at par.
    The bill is for an account. The defendant has filed his account with his answer, and the plaintiff objects to the receipt of payment of Wagner’s bond, and investment of the money in Bonneau’s bond, and the subsequent receipt of payment of Bonneau’s bond, and investment of the money in eight per cent. Confederate bonds, as changes of investment made without the compliance of the condition required by the will. In all other respects the account is satisfactory to him.
    The plaintiff has three children, named Thomas, Harriet, and Ann, but they are not parties to this proceeding.
    Eeceiving payment of the two bonds in question was not, in my judgment, what was contemplated by the will, in the provision made for disposing of the settled property, to which the written consent of the cestui que trust, was made necessary. When Wagner’s bond became payable, the trustee, so far from needing the consent of the cestui que trust, was bound to receive payment, and the money so received was money in his hands to be invested according to the rules and responsibilities which appertain to the subject. The investment in Bonneau’s bond, secured by mortgage of real estate, seems to have been a very proper one. So, too, when Bonneau’s bond became payable, he had a right to require the trustee to receive payment, but only in lawful currency, to wit, gold or silver coin. The trustee received payment, in -fact, in Confederate States treasury notes, and the question, and the only question in the case is, whether the Court will sanction the act, or regard it as a nullity, and hold him liable to the trust estate for the amount.
    I do not think the consent of the cestui que trust, to his receiving payment in Confederate currency, was a sine qua non. If under the circumstances it was right and proper, that is enough.
    Now the evidence (which is reported by the Master) shows, and all of us remember, that in January, 1863, and for months after, the banks received Confederate currency in payment of old debts, the most prudent individuals did the same; it was very unusual to refuse to do so, and the witnesses, Messrs. Stoney and Haskell, say of the debt in question, that they would have thought it proper to receive payment of it in that way. This trustee, then, seems to have done no more than he, or any other prudent man would have done in his own case, than thousands of prudent men did. And that is the standard by which the law judges a trustee’s conduct.
    Had there been any ground for imputing an interested or corrupt motive to the trustee, the case would be liable to a different judgment. But there is not the least. He appears to have acted in perfectly good faith in the line of his-duty. So too if the cestui que trust had objected to payment being received in Confederate currency, and the trustee notwithstanding, had persisted in taking it, he would have done so at his peril. But he knew of no such objection on the part of the plaintiff- It is plain, I think, that he regarded the receiving of that currency so much a matter of course, that it did not occur to him to mention it to the plaintiff. The plaintiff’s objection was not expressed until he called to pay him his interest, six months after the thing had been done. And then, according to the trustee’s version, the plaintiff only said: “ I had rather that the money on Bonneau’s bond had not been paid,” but at tbe same time agreed to tbe investment. Plaintiff says he told Bonneau in January, 1863, that he was not willing for the bond to be paid in Confederate currency. It would have been more to the purpose if he had so expressed himself to his trustee, who alone had the right to receive payment.
    Payment having been, in my judgment, rightfully received by the trustee in Confederate currency, the investment of the same in eight per cent. Confederate bonds was proper. Haile vs. Shannon, MS. 1866.
    It is ordered and decreed that the bill be dismissed.
    The complainant appealed on the grounds:
    1. That the power contained in the will of Mrs. Venning authorizing the trustee to sell or change investments of the trust property, with the written consent of Mr. Pearce, is a power dependent upon a condition precedent and equally applicable both to the sales and the reinvestments, and that in the exercise of the power, the conditions must be strictly complied with.
    2. That when Wagner’s bond was paid, that it required the written consent of Mr. Pearce to invest in the bond of Bonneau, and that not having been obtained, the fund must be regarded as now in the hands of the trustee, and in the like manner as to Bonneau’s bond.
    3. That it was in the evidence that Mr. Pearce objected to the payment of Bohneau’s bond in Confederate currency.
    4. That the decree is contrary to law and evidence.
    
      WJialey, for appellant,
    cited Fronty vs. Froniy, Bail. Eq. 518; Sugden on Powers. 20, 210, 212, 261 to 268, 319. Dillit vs. Wkitner, Che ves, 213 ; Í Kent, 320 to 331.
    
      Simons & Simons, contra.
   The opinion of the Court was delivered by

Dunkin, C. J.

By the will of Mrs. Ann Venning, she devised and bequeathed to her nephew, the defendant, the sum of seven thousand five hundred dollars, and her house and 'lot st Mount Pleasant, and certain slaves (by name), in trust to receive and pay over to testatrix’s son, William Pearce, during his natural life, the rents and profits, income and interest thereof, and to take his receipt therefor, and upon his death in trust for his children, &c., as therein jorovided, and it was declared to be lawful for the trustee, “with the consent in writing of the said William Pearce, to dispose of the whole or any part of the said real ■estate and other property hereinbefore mentioned and to ■substitute other property, real or personal, in the stead thereof,” and so on, from time to time, to sell the said property and to substitute other property in lieu thereof. The pecuniary legacy was paid in the bond of William Lucas for two thousand five hundred dollars, and of Theodore D. Wagner for five thousand dollars. No objection is made that the trustee, instead of requiring payment in cash from the executors of Mrs. Venning, as he had the right :to do, received payment in these bonds. Wagner’s bond 'being past due, was paid in 1859, and the money invested in a bond of P. P. Bonneau, secured by a mortgage of the same plantation. In January, 1863, Bonneau’s bond being past due, was paid to the trustee, and the money invested in eight per cent, bonds of the Confederate States of America at par. No charge of negligence, or want of caution or of judgment in this transaction is alleged against tbe trustee. But tbe objection is, that tbe power to sell and dispose of and reinvest, given by the will of the testatrix, applies as well to the pecuniary legacy of seven thousand five hundred dollars as to the house and lot and slaves devised and bequeathed for the use of the plaintiff. The Court is unable to recognize the soundness of this construction. The terms “sell and dispose” are not properly applicable to money. The testatrix exhibited no want of confidence in the judgment or discretion of the trustee; but the contrary. He was authorized to receive the pecuniary legacy, and pay over the interest to her son during his natural life. No directions were given to invest the funds. That may have been left to the discretion of the trustee, but the interest was made payable to her son during his natural life. But the testatrix had also provided for the use of her son, a house and lot and certain slaves. To part with any part of this for other property, was not merely a matter for the exercise of judgment and discretion of the trustee. Her son, for whose use it was, might have partialities for any part of the property, and was also properly to be consulted as to the ■ property proposed to be substituted.

It was, therefore, declared that any such change should only be lawful, when made with the consent, in writing, of her son, William Pearce. But none of these reasons were applicable to the pecuniary legacy, the management of which was left with the trustee. Such being the construction of the will adopted by this Court, it is ordered and decreed that the appeal be dismissed.

Wardlaw, and Inglis, A. J., concurred.

Appeal dismissed.  