Dunscomb v. Dunscomb

The Chancellor. 1. The plaintiffs are 1 entitled, of course, to the sum of 685 dollars and 47 cents, and the only point, on this part of the case, is, whether they are entitled to interest upon that sum, which has lain unproductive for many years in the hands of the defendants. Why it was not paid to the guardian of the plaintiffs, (who was also guardian of Andrew B. Dunscomb, in his lifetime,) and to whom the other portion of the moneys belonging to them was paid, does not appear. The executors say it has always been kept in readiness to pay to the persons entitled, when demanded. But this is no sufficient excuse. If they had met with any real doubt or difficulty, as to the person authorized to receive, they could have applied to the court for advice, or brought the money into court. If the money (as we are at liberty to suppose) has been mingled with their own moneys, it has answered the purpose of credit, and the rule is settled, that executors, and all other trustees, áre chargeable with interest, if they have made use of the money themselves, or have been negligent, either in not paying the money over, or in not investing it, or loaning it, so as to render it productive. (Treves v. Townshend, 1 Bro. 384. Rocke v. Hart, 11 Ves. 58.) The rule is founded in justice and good policy ; it prevents abuse, and it indemnifies against negligence. This was also the rule in the civil law, when the guardian was guilty of negligence in suffering the money of the minor to lie idle. Quod si pecunia mansisset in rationibus pupilli, prwstandum quod bona fide per [511] cepisset, aut percipere potuisset; sed fmnori dare cum potuisset, neglexisset. (Dig. 26. 7. 58.) The defendants must, in this case, account for interest on the above principal sum; and as to the time from which in- _ terest is to be computed, in such a case of negligence in suffering the money to lie idle, there does not appear to be any absolute rule, and the time must vary according to circumstances. It would be laying too heavy a hand upon executors, to charge interest from the moment money was received. In some cases, executors are allowed a year to look out for some due appropriation of the money, and in other cases it would be unreasonable. Here the executors show no pains or effort to discharge themselves of the money. I observe that six months was the time allowed, in a like case, by the civil law, to the tutor to invest the funds ; (Domat, b. 2. tit. Tutors, ch. 3. s. 23. Voet, lib. 26. tit. 7. s. 9.;) and if the defendants are charged with interest after six months from the time they received it, it will not be unreasonable in this case, and I shall accordingly direct it. 2. The husband of Catharine P. West is entitled, as tenant by the curtesy, to the interest of the proceeds of her share of the real estate, which was sold after her death. His right became perfect upon her death, and he was seised in fact, by the seisin and possession of the co-devisees, as tenants in common with her, and claiming only their undivided shares with her under the will. It will, theiefore, be the duty of the defendants to place the sum of 1,046 dollars and 36 cents at interest, on good real security, or invest it in public stock, and pay the interest thereof to William West, as the same shall from time to time accrue, during his natural life; and the plaintiffs, and their lawful representatives, will be entitled to the principal, upon his death. The case of Sweetapple v. Bindon, (2 Vern. 536.,) contains the rule applicable to this case, allowing the interest of money to be settled upon the tenant by the curtesy, in lieu of the profits of the land. [512] 3. The only remaining point in the case is as to costs. It does not follow, as an inevitable consequence, that executors . -11 must pay costs m all cases where they must pay interest; though yle general ru]e jS) that they must pay costs when they pay interest, because they are in default. (1 Ves. jun. 294. 7 Ves. jun. 129. 11 Ves. jun. 61. 582. 13 Ves. jun. 402.) If the demand of the plaintiffs had been confined to the sum of 685 dollars and 47 cents, the defendants ought to have paid costs; but the demand went further, and embraced a larger sum, to which the plaintiffs are not entitled until the death of the tenant by the curtesy. That demand has been successfully resisted, and it w;as a question properly submitted by the executors to the direction of the court. Under the circumstances of the case, I cannot allow costs to either party, as against the other. Decree accordingly.