Glenn's Ex'crs v. Cockey

Bartol, J., delivered the opinion of this court: ' The decree of the Circuit court, from which this appeal was taken, confirms the auditor’s “Account C.,” in charging the trustee with interest, and one of the grounds upon which a reversal is asked, is that, “because the bill contains no allegation of misconduct, negligence or breach of trust, or any claim for interest, none can-properly be allowed.” In support of this view, the appellants have referred to 1 Hill on Trustees, 524, where the author uses this language: “It may be observed that interest will not be given against a trustee, unless it be prayed by the bill,” and to sustain the text, refers to Weymouth vs. Boyer, 1 Ves., Jun., 426. Bruere vs. Pemberton, 12 Ves., Jun., 389, and Hooper vs. Goodwin, 1 Swanst., 493. An examination of those cases has not satisfied this court that the principle stated in the text of Hill, however it may in some cases be applicable, can govern the decision of this case. In 2 Daniell’s Ch. Pr., 1507, 1508, 1509, (Ed. of 1846,) this question is considered, and several authorities cited, which establish the principle, that if the circumstances are such, at the time of filing the bill, that a claim for interest did not exist, or could not be known, then it maybe allowed, if, under the facts disclosed, it appears equitable, even although not claimed in the bill; and the learned author also refers tobases, in which bills were filed “for the express pur-:-ppse'of enforcing an account, and payment of balances, and [455] decrees for interest were made, although no interest appears to have been prayed, nor was the consideration of it reserved.” Upon the best consideration we have been able to give this subject, we are all of opinion that the objection to the frame of the bill ought not to be sustained. (Decided July 19th, 1860.) Upon the proof in the case, we concur with the judge of the Circuit court, in the opinion, that the auditor’s account C., in so far as it charges interest upon the trust fund in the hands of the trustee, is correct. In support of this conclusion, see 1 H. & G., 11; 10 G. & J., 185, 186; 1 Johns. Ch. 452, notes 3 and 4; 1 Jac. & Walk., 39, Turner vs. Turner. Ibid., 135, Pearse vs. Green. Agreeing with the views expressed by the judge of the Circuit court, we think the decree below properly ascertains the amount due from the appellants, on account of the trust funds which came to the hands of the late trustee, and the decree in that respect will not be disturbed. It does not appear, however, that the trust is completed; some of the debts, for the payment of which it was created, do not appear to be paid in full, although the amount unpaid is not disclosed. For these and other reasons, it may be necessary to appoint a new trustee as prayed in the bill; instead, therefore, of affirming the decree, which orders the defendants to pay, or bring into court to be paid, to the complainants, the sum due, we shall, without affirming or reversing the decree, remand the cause under the Act of 1832, ch. 302, so that such further proceedings may be had as the case may be require. Cause remanded under the Act of 1832, ch. 302.