provision for the payment of the 11 legacies within a year from his wife's death, without interest; the argument being that such provision indicates a purpose to give his executors time to realize from the investments made to serve his wife's life estate, before any distribution. I think that the provision demonstrates that the testator took into consideration the ability of his estate to presently, upon the probate of his wife's will, meet the demands he had created against it, and, in order to relieve it, postponed the payment of the 11 legacies, and, by implication, the distribution of the residue. But I cannot infer from this provision that he postponed the demands which the exercise of the power conferred upon his wife would occasion. The very fact of his The very fact of his expressly defining a postponement, after consideration of the convenience of his estate, appears to exclude any but the clearest implication of other postponement, for we should assume that when he dealt with the subject of postponement he went as far as he intended to go. Indeed, for aught that appears to the contrary, it may have been his intention to so provide that all demands should not come upon the executors at once. He may have thought that they could quickly realize from assets, and pay the $30,000 to be given by his wife, and then, within the year, provide for the $13,000 he gave in pecuniary legacies, and later, after accounting, distribute the residue. The general rule is that interest commences to run when the legacy is demandable. Executors have a year after their testator's death to ascertain and collect the assets, and make payment of general legacies, for the payment of which no time is fixed in the will. After that year the legacy is de mandable, and, according to the general rule, interest then commences to run. Williams, Ex'rs, 1424; 2 Redf. Wills, 466. If the legacy be payable after the happening of a contingency, such as the death of a tenant for life, it is demandable when the contingency happens, after a year from the testator's death. Laundy v. Williams, 2 P. Wms. 481; Bonham v. Bonham, 38 N. J. Eq. 419; Miller v. Philips, 5 Paige, 573. In the application of these rules in the present case, my attention has been arrested by the decision in Tatham v. Drummond, 2 Hen. & M. 262, where there was a fund held by trustees under a marriage settlement, subject to the wife's power of appointment by will upon the happening of a certain contingency, in which it was held that the rule that interest did not run upon legacies until the expiration of one year from the death of the testatrix applied to the legacies she appointed out of the trust fund. It is suggested that the $30,000, over which Mrs. Wakeman had the power of appointment, was situated similarly to this trust fund, and that, as in Tatham v. Drummond, a year from the death of the wife was allowed to the trustees, so here a year should be allowed to the executors of Mr. Wakeman I think from the death of Mrs. Wakeman. that case is distinguishable from this in the fact that there the question was as to the application of the rule that a year should be allowed for the payment, while here the question really is, not as to the application of that rule, but whether there shall be an addition to it in the allowance of a second year. There the trust fund, in substance, stood as the wife's own property,-the trust being the means by which it was held for her; and the court considered that the existence of the trust should not defeat the application of the rule that one year is allowed for the payment of legacies, although the reason supporting the rule might not apply in its full vigor. In the present case the will of Mr. Wakeman contemplated a fund of $30,000, which was to yield income during the wife's life, and be ready against the uncertainty of the time of her death, and the contingency of her appointing its payment. Because as strong reason for granting a year after the wife's death, as existed in Tatham v. Drummond, to justify the application of the rule that a year is to be allowed, appears, it is urged that another year should be given in this case. Mr. Wakeman's executors have already had the benefit of the rule applied in Tatham v. Drummond. More than a year has elapsed since his death, and all that time they have been facing the present emergency. Shall they be allowed a second year? As has been seen, it is not the rule to allow a second year, where the legacy is payable upon the happening of a contingency. I do not find either authority or sufficient reason to justify such an allowance. The appointees should receive interest upon the sums appointed to them, respectively, from the date of the probate of Mrs. Wakeman's will to the dates of the payments of those several sums. LINDSLEY v. DODD et al. (Court of Chancery of New Jersey. Jan. 14, 1895.) SUIT AGAINST TRUSTEE-LOSS OF TRUST FUNDDEFENSES-LACHES. 1. A trustee who has once actually received the funds of the trust estate cannot discharge himself from accounting for the same to the cestui que trust by showing that they were lost by his own neglect. In such case a suit against him by his cestui que trust to recover the estate is not based upon his neglect, but upon his actual receipt of the estate; and the case is not varied if the suit be against the devisee of the delinquent trustee. 2. In an action by cestui que trust against trustee of an express trust to recover the trust estate, laches in bringing of the suit cannot be imputed to the complainant until he is informed of some breach of the trust or culpable negligence on the part of the trustee resulting in a loss, which the latter refuses to make good. (Syllabus by the Court.) Bill by James T. Lindsley, administrator, against Amzi T. Dodd and others. Decree for complainant. J. E. Howell, for complainant. Alfred E. Skinner, for defendants. PITNEY, V. C. This action, as originally framed, was brought by the administrator de bonis non cum testamento annexo of Stephen H. Dodd, late of the county of Essex, deceased, against the several heirs at law and devisees of the executors named in the will of said Dodd. Its object is to recover the amount of the estate of said Stephen H. Dodd, once in the hands of his executors, and which has been lost, as is alleged, by their neglect. The particular act of neglect relied upon is the failure to cause to be filed for record a mortgage for $1,500, given by one Van Orden to the executors, to secure his bond to them for that amount, payable in one year, with interest. After the giving of the mortgage, the land which it covered was sold away from Van Orden by the sheriff of Essex county, by virtue of judgments against Van Orden, and came to be held by bona fide purchasers without notice of the unrecorded mortgage, whereby, Van Orden having died insolvent, a total loss has occurred. The first question is as to the right of the administrator c. t. a. to maintain the action. I think the clear weight of authority in this state, as well as elsewhere, is that, in the absence of a statutory provision giving an ordinary administrator de bonis non such right, it does not exist. There is no such statute in this state, except in the case of a removal of an executor, administrator, or trustee for misconduct by the probate court, and the appointment of a successor to take his place. In such case a suit of the nature of the present is expressly authorized, as pointed out by the chief justice in McDonald v. O'Connell's Adm'rs, 39 N. J. Law, 317. The case of Beall v. New Mexico, 16 Wall. 535, seems precisely in point against the right of the administrator to recover in this action, and many authorities are collected by Mr. Justice Bradley in his opinion in that case. That suit was in form an action by the territory of New Mexico against the first administrator and his sureties upon his official bond, to recover the amount of the estate of the decedent, as shown by the inventory thereof, made by the first administrator, and which it was alleged he had lost by selling it upon credit, and failing to take proper security for it. The action, though in the name of the territory, was prosecuted by and for the use of the administrator de bonis non, and it was held it would not lie. In the course of his opinion, the learned judge says: "For the delinquency of the former administrator in not prosecuting [claims which it was his duty to prosecute], he is responsible to the creditor, legatees, and distributees directly, and not to the administrator de bonis non." This rule was distinctly recognized and applied by Chancellor Zabriskie in Carrick v. Carrick, 23 N. J. Eq. 364, and is stated to be settled law by the chief justice in Mcv.30A.no.19-57 Donald v. O'Connell's Adm'rs, supra. And see, also, Bradway v. Holmes, 50 N. J. Eq. 311, 25 Atl. 196. The only authority looking the other way is Lindsley v. Personette, 35 N. J. Eq. 355, decided by Chancellor Runyon. For the reason stated in Bradway v. Holmes, I feel constrained not to follow Lindsley v. Personette, and come to the conclusion that the action cannot be maintained by the administrator. However, this point was not taken in the answer, but the defendants answered fully to the merits, and they were fully gone into at the hearing. The wife of the complainant is the sole legatee and devisee in remainder of the testator, and is the real complainant in the cause. Motion has been made to amend by making her complainant in place of the present complainant, and making him a party defendant. A perusal of the bill shows that this can be done without materially altering its frame or prayer, or stating any new matter requiring an answer. Under these circumstances, I think the motion should be allowed. A similar course was pursued in was pursued in Bradway v. Holmes. Looking at the merits, complainant's case, briefly stated, is this: Calvin Dodd and Philip Ward, surviving executors of Stephen H. Dodd, deceased, on the 28th of November, 1873, held the bond of Isaac L. Van Orden for $3,000, secured by a mortgage given to them, as such executors, by Van Orden and wife, on land in Essex county, which was ample to secure it. The bond and mortgage bore date March 3, 1858, and the mortgage was duly recorded on September 1, 1858, in the proper book of records. On or about the 28th of November, 1873, they surrendered these securities to Van Orden, and took in their place a new bond and mortgage to them, as executors of Stephen H. Dodd, to secure $1,500, in one year, with interest, the mortgage covering a small part only of the land which had been covered by the first mortgage. The actual surrender of the old mortgage and the taking of the new mortgage were probably done on or about the 18th or 19th of December. On the date last named, Van Orden caused the old mortgage for $3,000 to be canceled of record, but the executors failed and neglected to cause the new mortgage to be registered or recorded. Van Orden shortly afterward became financially embarrassed. Judgments were recovered against him. Executions thereon were levied upon the lands covered by the mortgage, and the same were subsequently sold thereunder by the sheriff of Essex county, and the title became vested in bona fide purchasers for value, without notice of the unrecorded mortgage. Van Orden died insolvent, and the debt is wholly lost. It abundantly appears that the value of the property covered by the $1,500 mortgage is, and always has been since it was given, ample to secure it. It also appears that neither the complainant nor her mother, who are the sole beneficiaries under the will of Stephen H. Dodd, ever had any knowledge or suspicion of the existence of the $1,500 mortgage until about July, 1889, when it was accidentally discovered among the papers of Calvin Dodd, one of the executors, after his death. He died in 1878. In the meantime both mother and daughter supposed that they had some right and interest in the lands covered by the old mortgage, which lands had belonged to Stephen H. Dodd's father, Samuel Tyler Dodd, and they had made industrious and continued inquiries into the affair, with the view of ascertaining what that interest was, and whether the purchaser at sheriff's sale of Van Orden's right had notice of it. Such inquiries commenced shortly after the death of Calvin Dodd, in 1878, and the death, which occurred a year or two later, of Eliza Dodd, who was the widow of Samuel Tyler Dodd, and entitled to a life estate in the lands. Such inquiries resulted in discovering the unrecorded mortgage above stated, and that no proof could be produced to show that the holders of the title had any notice. It is proper, however, to remark here that no burden was cast upon the beneficiaries under the will of Calvin Dodd to show lack of notice to the holders of the title of the lands. The natural presumption is against such notice, and the burden is on the executors or their representatives to show the contrary. No account was ever rendered by the executors of Stephen H. Dodd of their dealing with the estate, either privately to the beneficiaries, or to the orphans' court, or otherwise, so far as appears. Now, it seems to me that these facts show a complete case against the deceased executors. It should be observed that the executors are in reality not sought to be charged because they have lost the estate through their own negligence, though such negligence is stated as a part of complainant's case. Their liability arises out of their having once had the estate in their possession in the shape of a good bond and mortgage, and they cannot discharge themselves from this liability by saying that they lost that estate by their own breach of trust or negligence in the care of it. This proposition seems so self-evident as to require no authority to support it. There is, however, abundance of authority for that purpose. In Burrowes v. Gore, 6 H. L. Cas. 907, at page 956, Lord St. Leonards said: "What is the position of Thomas Burrowes [the trustee] and of Robert Burrowes, his son [the defendant], as his representative? He ought to have the £1,500 in his hands ready to be paid over to the complainants. He is liable in a court of equity as having committed a breach of trust in not having that money forthcoming. *** In his answer, Robert Burrowes says that he believes that the sums [of money demanded] have * * * been lost through the default of the trustee to the settlement [Thomas Burrowes]. Lost by the neglect of Why, He the trustees! Who are the trustees? he himself is a trustee at this moment. is the representative of his father, Thomas, who was himself a trustee. How is it possible for him for a moment to be heard to say, 'I have lost the money by my breach of trust'? The answer should have been, 'If you have, you will be so good as to pay it.' No trustee can say, as a defense, 'I have committed a breach of trust.'" In Holcomb v. Holcomb, 11 N. J. Eq. 281, at page 300, Chancellor Williamson said: "As to the promissory notes and all other debts not properly secured, it was the duty of the executors to have collected them and made them secure. If, by permitting them to remain without security, they afterwards were lost to the estate, it was through the negligence of the executors in not properly discharging their duty, and they must be charged with their loss." The same principle is recognized in McCartin v. Traphagen, 43 N. J. Eq. 323, at page 334, 11 Atl. 156. Both executors are dead. Philip Ward left no property, and no defense is made by his heir at law. Calvin Dodd, the other executor, left a considerable estate, which, by his will, he gave to the defendant Samuel T. Dodd, who was his grandson. His executors settled his estate many years ago, and were not made parties. Several defenses are set up by Samuel T. Dodd, the grandson and devisee of Calvin. I will notice them. First, he alleges that after the giving of the unrecorded mortgage of November 28, 1873, viz. on December 5, 1873, seven days later, the present complainant and her mother conveyed, released, and quitclaimed all their right, title, and interest in the premises covered by the mortgage to the mortgagor, Van Orden. Such a deed, or certified copy of it, is produced, and it covers the whole premises covered by the first mortgage. It purports to be recorded December 19, 1873, the very day on which the old mortgage for $3,000 was canceled of record. Now, the giving of this release, whose consideration is one dollar, by these ladies, who were mere beneficiaries under the will of Stephen H. Dodd, and not mortgagees, does not and cannot upon its face have the effect of discharging a mortgage given substantially at the same time to the executors of the will of the husband of one and father of the other. Even if the release had been given by the mortgagee to the mortgagor, no presumption would, under the circumstances, have arisen that it was intended to discharge the mortgage. The presumption would be all the other way, viz. that the bond and mortgage were given to the executors in consideration, in part at least, of the giving of the release. The presumption is that, if the parties had intended to discharge the mortgage, they would have done so directly, and would not have adopted so expensive and roundabout a mode as the giving a release within seven days after its date, and before its record, by a person not a party to it. I shall have occasion further on to state the circumstances attending the giving of this release. But, in the next place, the defendant, not relying upon the release alone to show that the mortgage never had any vitality, falls back upon the previous history of the dealings of the parties interested in these mortgaged premises. That history is, briefly, as follows: Samuel Tyler Dodd, the grandfather of the now complainant, and the father of Stephen H. Dodd, died seised of them in April, 1849, testate, leaving a widow, Eliza, and seven children, viz. Stephen H., Phebe L. Van Orden, wife of Isaac L. Van Orden, John, Israel, Zebina, James W., Samuel T. Some of these children were under age. So much of his will as bears upon the present question is as follows: "Second. I give and bequeath to my wife, Eliza, the use of all my household furniture during her widowhood. * *Third. I do authorize, empower, and direct my executors, hereinafter named, or the survivor of them, to sell and convey my lot of salt meadow, lying between meadows of Daniel Dodd and Calvin Dodd, for the best price that can be obtained for the same, and also to sell my personal estate, except the household furni ture, and, by and with the advice of my son Stephen H. Dodd, either to sell and convey so much of my real estate as may be sufficient to pay all my just debts, or raise such amount as may be necessary for that purpose by a mortgage upon my real estate, the reason whereof will hereafter appear. Fourth. I do authorize my son Stephen H. Dodd to take, or my executors to convey to him, his heirs and assignees, all the remainder of my real estate, at the sum of three thousand dollars, by his paying to the other of my legal heirs their share of the same, as he may agree with them, upon the following conditions, that it to say: All my estate to remain, except the amount for debts, which may be sold or mortgaged, for the use of my wife, Eliza, if she remains my wid ow, to maintain and educate my minor children; and, when the youngest shall have attained the age of twenty-one years, then onehalf the value above mentioned, my just debts and other charges on my estate being deducted from the said three thousand dollars, be paid, share and share alike, to my heirs, the other half to remain for the support of my wife, Eliza, during her widowhood, and no longer. In case of the marriage or death of my said wife, then my son Stephen H. Dodd to pay my heirs an equal share each, himself included, out of what may remain. In case my daughter Phebe should marry before the first dividend of the estate, I direct my son Stephen H. Dodd, should my estate then be in his hands, or my executors, should it not, to give her one hundred dollars at her marriage, to be deducted from her share in the first dividend." And he appointed Calvin Dodd and Philip Ward his executors. Besides the salt meadow mentioned in the will, the testator seems to have died seised of five several tracts of land: One of 12 acres, called the "homestead," and one of 6 acres (these two were afterwards conveyed to Van Orden, and the $3,000 mortgage above mentioned was given as consideration money); two tracts, one containing 14.41 acres, and the other, contents not given, sold together by the executors, in 1851, for $653.50; one containing onefifth of an acre, sold, in 1857, for $910. The salt meadow procured $75. Stephen appears to have taken possession of the homestead, and to have held it as a home for his mother and younger brothers and sisters while he lived. In June, 1854, he purchased from his brother Israel L. Dodd, then just of age, his interest in his father's estate, paying therefor $100, and taking his deed of conveyance for the land, which deed was duly recorded. Stephen died, testate, in January, 1856, leaving the present complainant, his only child, about two years old, and his widow, him surviving. By his will he provided as follows: "I hereby constitute and appoint Calvin Dodd, Philip Ward, and Amzi S. Dodd, son of Calvin, of said township, county, and state, and their survivors and survivor, executors and executor of this, my last will and testament, whom I do hereby authorize and empower to sell and dispose of my property, real and personal, for the payment of my just debts and charges, and, as they shall think expedient, from time to time to convey the same in fee simple or for a term of years for the benefit and behoof of my heirs at law, and to carry out and fulfill the intentions of the will of my father, Samuel T. Dodd, and, with the consent of my father's widow, to sell, dispose of, and invest the proceeds of such sale or conveyance for the benefit of my own and my father's heirs at law. I give and bequeath unto my loving wife, Letitia, the residue of my property, real and personal, to have and to hold the same during her widowhood, and, upon her marriage or decease, the same to go to my daughter, her heirs and assigns, forever: provided that, if my said daughter should die leaving no heirs of her body, then and in that case the same shall revert to the heirs of my said father, deceased." It will be observed that he named the same executors as those named in his father's will, adding Amzi S. Dodd, who was the son of Calvin Dodd, and father of the defendant Amzi T. Dodd. By deed dated March 23, 1858, acknowledged March 25, 1858, and recorded September 1, 1858, the three executors above named (Calvin Dodd and Philip Ward being named as executors of Samuel T. Dodd, and all three being named as executors of Stephen H. Dodd), after reciting the power of sale contained in each will, conveyed the two tracts of 12 acres (called the "homestead") and 6 acres, respectively, to Isaac L. Van Orden, in consideration of $3,000. In satisfaction of this consideration, Van Orden and his wife gave back to the three executors, as executors of Stephen H. Dodd only, a bond of like date with the deed, to secure the sum of $3,000, "or whatever less sum shall be found to be due from the executors of Stephen H. Dodd, deceased, at the time the youngest child of Samuel T. Dodd, deceased, shall attain the age of 21 years, to the heirs and for the widow of the said Samuel T. Dodd, deceased, under and by virtue of his last will and testament, which sum hereby required to be paid, and intended to be secured, is the sum which said will directs to be divided into two equal parts upon the said youngest child's coming of age, one part to be paid to the heirs of the said Samuel T. Dodd, deceased, and the other part to remain for the support of his widow." This mortgage appears to have been acknowledged March 30, 1858, before a different master from the one taking the acknowledgment of the executor's deed, but was recorded on the same day, September 1, 1858. The language of the condition of the bond indicates that Van Orden had taken the property upon the same terins upon which it was given to Stephen, viz. at $3,000; and out of this sum Van Orden was to pay the debts of the first testator, and support the widow and minor children, and the next balance was to go to and be divided between the children of the first testator, Samuel T. Dodd. There is further proof that this was the understanding of the parties. A receipt following a statement in the handwriting of Van Orden, and signed by the attorney of Letitia H. Dodd, the widow of Stephen, is produced, by which it appears that on May 7, 1860, two years after this deed was given, Van Orden paid her a balance of $150.89, due on a total of $255.95, composed of $167.37, the amount of divers small debts of Samuel T. paid by Stephen H., and $88.58 of interest thereon. Further, the bond of Van Orden, above recited, bears the following indorsement, in the handwriting of Calvin Dodd, the executor now sought to be charged: "Orange, January 27th, 1859. Received of Isaac L. Van Orden seventy dollars for Letitia A. Dodd, widow of Stephen H. Dodd, as per receipts. $70.00. Do. Received of Isaac L. Van Orden ninety-four dollars for David Riker's account, as by receipt. $94.00. Do. Received of Isaac L. Van Orden two hundred thirty-seven 37/100 dollars, one hundred thirty-seven 37/100 dollars being money advanced for the estate of Samuel T. Dodd's estate, and one hundred dollars for services as executor of estate. $237.37. Calvin Dodd, One of the Executors of Stephen H. Dodd, Deceased." This receipt was, I think, intended as a memorandum of credits which Van Orden would be entitled to upon the sum of $3,000 at the time the youngest child came of age. What became of the interest on the whole sum, or how much went to support Eliza, the elder widow, and how much to educate the children, does not appear. Another document produced by the defendant is as follows: "$75. Orange, Dec., 1861. Received of I. L. Van Orden seventy-five dollars, being an installment on a dividend of $150 payable to each of the heirs of the late Samuel T. Dodd from his estate. The other half of said hundred and fifty dollars I direct to be paid to the order of Eliza Dodd, and indorsed upon an order given to her for one hundred and seventy-five dollars upon the executors of the estate of Stephen H. Dodd, deceased. Letitia A. Dodd." "Executors of Estate of Stephen H. Dodd, Dec'd: Pay to the order of Eliza Dodd one hundred and seventy-five dollars, as follows: Seventy-five dollars of the amount now due the estate of Stephen H. Dodd, deceased, from the estate of Samuel T. Dodd, dec'd, and the balance of one hundred dollars to be paid when the next dividend comes due, which total amount you will charge to the estate of Stephen H. Dodd, deceased. Letitia A. Dodd." A close study of these memoranda indicates that the accounts, stated roughly, stood thus: Land sold by the executors in Ste- $ 653 50 985 00 $1,638 50 26 57 108 35 29 02 100 00 94 00 525 25 $1,638.50 Which deducted from leaves in the executors' hands.... $1,113 25 -A sum quite sufficient from which to make a dividend of $150 each to six children, John having previously died, intestate and unmarried, and leave untouched the half of the $3,000 which, by the will of Samuel T. Dodd, was to be divided at the majority of his youngest child. This balance remaining from the sale of the out lots must be the fund from which this dividend was declared, since, as will appear further on, the youngest child did not attain majority until about 1870. But the conveyance for value of Israel's share in the land to Stephen in his lifetime, and before the several conveyances by the executors, gave Stephen the right to have Israel's share in the net proceeds of those sales, and increased his interest from a sixth to a third. In the meantime, in August, 1858, after the date of the executor's deed, and before its record and the record of the $3,000 mortgage, Van Orden procured to be executed by Zebina Dodd, Israel Dodd, and James W. Dodd, three of the children of Samuel Tyler Dodd, A |