Dennis v. Dennis

Eccleston, J., delivered the opinion of this court. From the final decree in this case, the complainants and also the defendants have appealed. The bill was filed on the 4th of April 1853, by George R. Dennis and Elizabeth U. Dennis, as complainants, against the defendants, George R. Dennis and James U. Dennis, as executors of John U. Dennis, stating: That about the month of April 1833, Littleton U. Dennis, the father of the complainants, died, leaving a last will and testament, dated die 26th of March, in the same year, a copy of which was filed with the bill and marked as exhibit A. The bill also states that in the first clause of the will, the testator devised to the complainant, Elizabeth, certain real estate, therein described, for life, without impeachment of waste, and after her death then over on certain limitations. That by the second clause of the will, the testator devised to the complainant, George, certain real estate therein described, for life, without impeachment of waste, and after his death then over on certain limitations.

That by the third clause in the will, the lands at White Haven, formerly George Robertson’s, were devised to the complainant, George. That by the explanatory clause of the will the testator devised to Elizabeth the farm called “’Coulbourn’s Greek,” on condition, that she, in a reasonable time after arriving at twenty-one years of age, should convey the lands at White Haven to George. That on the 20th of March 1851, Elizabeth did, by deed duly executed, convey to the said George, all her interest and. estate in the said lands at White Haven; and that exhibit B is a copy of said deed. That by the fourth clause of his will, the testator devised- ⁹⁹ all the residue of his real estate to the complainants, in fee-simple, as tenants in common; and that the said residue consisted of the farm or land known as the aNewbold Farm,” and the Mills at or near Puncheon Landing, with the lands thereunto belonging.

The bill also states, that after giving certain pecuniary and specific legacies, the testator, by the fifteenth clause of his will, gave and bequeathed the entire balance of his personal estate to his brother, John Upshur Dennis, upon trust, during the minority of his children, or in case either of them should die under the age of twenty-one years, until the survivor of them should attain that age, to appropriate the profits thereof for the use and benefit of his children, or surviving child, and also gave to his said brother, during the same period, the entire profits of his real estate, in trust, for the same uses and purposes, and empowered his »said brother to exercise any control or act of ownership. over his said real estate, except selling any part thereof, or the timber thereon standing; that he also gave his said brother, during the continuance of the said trust estate, six per centum per annum upon the annual amount of the income of his said children, or the survivor of them; and also gave to his brother the care of the persons and education of his said children, or the survivor of them, with power to sell any part of their personal estates. That, by the sixteenth clause of his will, the testator provided, that during the continuance of the trust estates, the profits of his real estate should be apportioned to the use of that one of his children who is entitled to the estate itself under his will. That, by the will, John U. Dennis and Littleton P. Dennis, were appointed executors thereof, but that Littleton refused to act as executor. That the complainants are the only children of the testator, that Elizabeth arrived at the full age of twenty-one years, about tile month of January 1849, and George arrived at said age about March 1852.

That John U. Dennis accepted the appointments of executor and trustee, and on the 7th of May 1833, gave bond as ¹⁰⁰ executor, of which 0. is a copy, arid that immediately thereafter the said John U. Dennis, under and by virtue of the said will, took possession of the real and personal estate of the said Littleton U. Dennis, and continued in the possession thereof until his death, which occurred sometime about the latter part of December 1851; and during all that time received the rents, issues and profits of so much of the said real and personal estates of the said Littleton U. Dennis, as was given and devised, as aforesaid, to the complainants, separately and in common. That the complainants do not know and cannot state the precise amount received by the trustee from the rents, issues and profits of the said real estate; but they allege the said real estates were of great value, and they charge, that over and above all proper allowances for repairs, taxes and other necessary expenses, the said real estate was worth $6000 per annum during all that time, that is to say, the real estate devised to Elizabeth by the first clause of the will, was of the annual value of $1500, the real estate devised to George, by the second clause of said will, was of the annual value of $1500; the Newbold farm and mills were of the annual value of $1000; the farm called Coulbourn’s Creek was of the annual value of $1000; and the lands at White Haven were of the annual value of $1000. The bill further states, that. John U. Dennis, as executor, returned an inventory of the personal estate of said testator, a copy of which is marked exhibit D; that he made sale of part thereof, as appears by a list of sales returned to the orphans court, a copy whereof is marked exhibit E; that he returned two lists of sperate debts, one on the 21st of January 1836, for $833.40, and the other on the 10th of March 1842, for $2206.37; and also stated two accounts of his administration in the orphans court, copies of which lists and accounts are marked exhibits F, G, H, and J. That on the 10th of March 1842, the said John, as executor, made a distribution of the personal estate of the deceased, in his hands as executor, according to the will; in and by -which there was awarded to him, the said John, upon ¹⁰¹ trust for tlie use of the complainants, during their minority, the sum of $20,189.74’, and exhibit E is a copy of said distribution.

That of said sum of $20,1615.744, the sum of $13,671.71, -consisted of seventy-four negro slaves, at the value thereof as fixed by the appraisement, and the balance thereof consisted of money or 'articles, included in the inventory, not sold by the executor, which unsold articles, were of a perishable quality, or of such quality as that they could not be used unless consumed thereby. The bill states, the complainants are advised, that upon the acceptance of the said trust, it became tire duty of the said John, to rent, to good and prudent tenants, the real estate, for the best rent that could be fairly obtained, and to have hired out, for the best prices, said slaves, to good and careful masters, and to have converted the residue of the said properly, on account of its perishable nature, into money, and have invested the sanie in some safe and productive fund, for the benefit of the complainants; and the income derived from said rents, and hires and interest, after paying out of the same the expenses of said trust, the necessary repairs and the expenses for the maintenance and education of the complainants, if any should remain, to have invested at the close of each year for their benefit-; but now so it is that from the death of the testator to the time of his own death, the said John had in his possession all the said real estate, so as aforesaid devised to the complainants, and also all the personal estate, so as aforesaid distributed to their use; that by his agents and servants, he occupied, cultivated and worked the real estate, and employed the said slaves, and used, or wasted and destroyed, all the rest and residue of said property, and received and took to his own use-the issues and profits thereof. The complainants aver their inability to state what, the trustee received for the labor and services of the slaves, but they charge that the slaves were worth, from the death of the testator to the decease of the trustee, an annual hire of $4000, above all proper charges for support and clothing of said ¹⁰² slaves and for taxes; and that the residue of the property distributed as aforesaid, was worth a sum per annum equal to the legal interest on the appraised value thereof. The complainants state that they were very young at their father’s death, and have very little personal knowledge of the manner in which their uncle conducted and managed the trust estates, or of the care he took of them, or in what condition he found the same when he took possession of them, but they have been informed and believe, they were in fine order and condition and productive; and they charge, that during the continuance of the trust, the lands were greatly impaired in value; and when the same came to their hands, since the death of the trustee, they found their land in bad condition and unproductive, the buildings dilapidated and decayed, and the whole estate greatly wasted and injured; and the complainants charge that the said John did not use proper care and diligence in preserving the same; and they insist that they are entitled and ought to receive compensation for all waste and decay, arising from such want of care and diligence; and they aver and charge that the real estate was so injured to the value of $10,000.

The complainants say they are informed and believe, that the said slaves have greatly increased in numbers during the continuance of the trust; but for want of correct information, they are unable to state the names, numbers, ages and value of said increase, and they are advised that said increase are part of the trust estate, and that the trustee is responsible for the same, and they pray that when the names, number and value of said increase shall have been discovered, that the trustee shall be held accountable for the annual value of the same; and where such additional slaves have not been received by the complainants, that the trustee may be charged with the value thereof. The bill charges that the trustee sold part of the slaves, to wit: one negro man, three negro women, and three negro children, but the complainants are unable to state when they were sold, their names, or what sum they sold for, but they insist that the said slaves were worth $5000, and claim their value, with interest from their sale. ¹⁰³ The bill states that, from the death of the testator, tbfrsaid John, under the will, took care of the complainants, and maintained and educated them, that Elizabeth lived in his family, or was at school, until her marriage, and George lived also in his family, or was at school, under his direction and control; but (he said John never qualified as guardian, except in so far as the acceptance of the said trust, and the possession of the persons and property of the complainants under the said will, may be considered such qualification. That the complainants do not know the sums expended for their maintenance and education, but they arc willing to allow and credit, in any account that may be taken, all reasonable and proper expenditures for those purposes. That there was, or ought, to have been, and, if the trustee bad performed his duty, there should have been, at the close of each year, a large surplus, which it was the duty of the trustee to have invested for the benefit of the complainants, but they are informed and charge, that the trustee never invested said annual surplus for their use and benefit, but ap~piierl the same to his use.

And they insist that he ought to be charged with interest from the close of each year on such-surplus, in such manner as will preserve the complainants from loss by his failure to invest the said annual surplus as it accrued. That, in 1846, the said Elizabeth intermarried with Little-ton Dennis, who died in 1847, but John, the trustee, did not account with her husband concerning the trust, or in any' manner settle the same during her husband’s life, nor did her husband, the said Littleton, reduce into possession any of the property of his wife; but, by his will, released and quitclaim to any of her property, on condition that she would release and abandon all claim to his estate, which she has done. That much of the personal property distributed to the trus-tee as aforesaid, has been wasted, lost and destroyed, or greatly injured or impaired, from the management and want of care in the trustee, and although, for want of information,' the complainants cannot state the amount wasted, lost, ¹⁰⁴ destroyed or injured, they still insist that the amount, when-discovered, shall be charged against the said trustee. That, after the death of the said John, in 1851, the complainants took possession of the real estate devised' to them,- and also of die slaves and other personal property, found' on the said real estate at that time; that they do not know the value of the personal property, exclusive of the negroes, so taken possession of by them, but they insist it was greatly less in value than the personal property, exclusive of negroes, bequeathed to them by their father, as aforesaid, and if, in any account which may be taken by the court, concerning the said trust, the trustee shall be charged with the value of said personal property, exclusive of negroes,- in money,as tire complainants insist should be done, they are willing to be charged, and that said John should be credited-with the value of the personal property,- exclusive of ne-groes, so found on said real estate, and taken possession of by the complainants.

The bill further states that John U. Dennis, the said trustee, by his will, appointed the defendants, James U. Dennis and George R. Dennis, his executors, who accepted the trusty and, as such executors, have in their hands sufficient assets to pay the claims of the complainants against the said John, and all other debts which he owed at the time of his death. That the said John, in his lifetime, never accounted as executor, with the orphans court, or with the complainants, or either of them, of and concerning the said property, real and personal, and the annual interest and profits thereof, so as aforesaid left to them, by their father, or paid the same,- and the increase, and' income,-and profits thereof, to them; nor have the executors of the said John ever accounted with and paid the same over to the complainants. That the complainants have, from time to time, requested the executors of the trustee to account and pay whatever may be found due, but they have always neglected and refused, and have always met these demands with frivolous excuses and pretexts, sometimes pretending that the trustee, in his lifetime, accounted and delivered over all the trust ¹⁰⁵ property and income, and at other times, that there never was any such trust created, sometimes that they have settled with the complainants, and at other times, that they have no assets of the said John out of which the complainants can be paid; all which pretences are charged to be unjust and untrue. The prayer of the bill is, that the executors of the said John may answer the premises; and that an account may be taken, under the direction of tbe court, of the property devised and given to and for the use of the complainants, aiid each of them., by the will of their father, which came to the •hands and possession of the said John, trustee as aforesaid, and of the annual va3ue, from the death of their father, of the real estate devised to them, severally and in common; and also of the value, annually, of said negro slaves and their increase, and of the value of the slaves sold, with interest thereon; and of the value of the other property given to the said John in trust for the complainants, and with interest on said value from the date of his letters testamentary on their father’s personal estate; also, that an account of the waste and injury to the real estafe of the complainants, while in the hands of their said trustee, and of the interest properly chargeable against the said John; and that, by a decree of the court, the said executors of the trustee maybe compelled to pay to the complainants what, on such an account, may be found justly due them respectively; and that the complainants may have such other and further relief in the premises os may bo just and proper, according to the nature of their case.

The following extracts from the will of Littleton U. Dennis, will disclose the nature of the trust which gave rise to this controversy: 13tfi hem. aMy will and desire is, that great care be taken in the education of my children, and that no expense may be avoided which may be necessary for that purpose. I do not mean that my son shall have money enough to buy a diploma from the faculty of a college, or that, my daughter shall have money enough to spend several years in a board ¹⁰⁶ ing school of high character; but that their minds (if capable ■of it) shall be highly cultivated, that no facilities within the reach of their income shall be withheld, for I would have them both learned.” 15th Item. “After my executors, hereinafter named, shall have paid my debts and settled my personal estate, I give and bequeath the entire balance of my said personal estate, except what may be bequeathed by this will to my brother John Upsher Dennis, upon trust, during the minority of my children, or in case either of them die under the age of twenty-one years, until the survivor of them shall attain that age, to appropriate the profits thereof, for the use and benefit of my said children or my surviving child. I also give and bequeath to my said brother, during the same period, the entire profits of my real estate, upon trust, for the same uses and purposes. I also authorize and empower my said brother to exercise any control or act of ownership over my said real ’ estate, of which I myself am capable, except the selling of the Whole or any part of it, or the selling of timber off it; for my will and desire is, and these words of desire are imperative, that no timber shall be sold during the infancy of my children, or either of them, from any part of my real estate, and that no timber be felled thereon, except for the necessary consumption of my respective farms, during the continuance ■of the said trust estates.

I give and bequeath to my said brother, six per centum per annum upon the annual amount of the income of my said children, or the survivor of them, during the continuance of the said trust estate. I give to my said brother the care of the persons and education of my said children, or the survivor of them, with power to sell any part of their personal estates.” Part of the 16th Item. “Be it also known, that during the continuance of the trust estates created by the preceding clause of this will, my will and desire is, that the profits of my real estate shall be appropriated to the use of that one of my children who is entitled to the estate itself under this will.” The bill is not sworn to, nor does it call for an answer under oath. ¹⁰⁷ At October term 18-53, the defendants filed their answer without oath. In their answer they admit the death of Littleton U. Dennis, leaving his will as stated in the bill, and that exhibit A is a true copy; to which they refer for a correct statement of' the several devises and bequests made by the said Littleton, submitting the true legal construction to the court. They admit the execution of the deed from Elizabeth to George, and that exhibit B is a correct copy thereof; that the residue or balance of the real estate mentioned in the will is properly described in the bill; also the renunciation of Littleton P, Dennis, as executor; that the complainants are the only children of the testator, and that they arrived at full age, at the times stated in the bill.

They admit the acceptance of the trust of executor and trustee, by John U. Dennis, and, that in virtue thereof he took possession of the real and personal estate of Littleton U. Dennis; but they deny that the said John continued in possession thereof till his death in December 1851, on the contrary, they aver, that he gave up the possession thereof to the complainants, on the first of January 1850. They admit that the property devised by said Littleton was of large value; but they deny that the several parcels of real estate, set forth in the bill, were of an annual value at. all approximating the value stated in the bill. They admit the inventory, list of sales, lists of debts, administration accounts and distribution, mentioned in the bill, of which exhibits D, E, F, G, H, J and K axe copies; but they aver that in the list of sperate debts, dated the 10th of March 1842, (exhibit G,) said John made an error in charging himself with the sum of $629.64, debt of William Perkins, whereas the amount should have been $504.22, and they claim to have the error corrected in the settlement of the trust account. They deny that the slaves which were in the hands of the said John were of the appraised value stated in the bill, and that any portion of the property mentioned in the distribution, as left in trust for the complainants, was in the hands of said John, in money, on the contrary, they aver, that the amount of money received by him, and belonging to said ¹⁰⁸ estate, was altogether insufficient to pay the debts, and expenses of administration, and legacies, but that to pay ¡the same the said John advanced, of his own means, the sum of $3051.86!,t0 which extent, with interest from the time of his payment thereof, said Littleton’s estate was, and the complainants, now are, indebted to the defendants, as executors of said John.

The defendants aver, that the personal property mentioned in the inventory, and not sold by the executor, consisted, besides negroes, of horses, cattle, and other- live stock, farming utensils, and provisions required for the maintenance of the negroes of the estate, and were reserved, by the trustee, for the use of the complainants, in the cultivation of their estates; that the said property, and its increase, and the results of its use, continued on the said real estate, and in said employment and use, from the death of said Littleton U., till the complainants took possession of it, with their real estate, and appropriated it to their own use. They deny that the will imposed on the trustee an obligation to manage the property in any particular manner, but left him free to manage the same in such manner as he, in the exercise of a reasonable discretion and diligence, might consider best for the interests of the beneficiaries of the trust. They aver that, in the exercise of proper discretion and diligence, the trustee cultivated the trust real estate by means of the slaves and other personal estate belonging to the trust, and kept an annual account of the issues and profits thereof. That the trustee managed the trust estate with skill, fidelity and attention; that he gave to the oversight thereof a very large portion of his time, and instead of wasting the estate, or causing, or suffering its deterioration, he left it in as good condition as any of his own real estate, except the mansion house farm, on which he resided; and they deny, that complainants have any claim for compensation for deterioration of the estate, whilst in the trustee’s hands.

They admit that the negroes have very considerably increased in numbers and value, during the trust, but aver that .the complainants have received the full benefit of such i}> crease. ¹⁰⁹ They deny that the trustee’s possession of the trust estate continued till his death, as charged in the bill, but aver, that in 1849 the complainants caused an inventory or list of the slaves and -other personal property of the trust, in the hands of the trustee, to be made by two disinterested persons named by the complainants, and at the request of the complainants the trustee delivered to them the entire trust estate, and from that time the complainants have been in the possession of their said property, and have used the same, and received the profits and income thereof. That the personal property so delivered to the complainants by the trustee, far exceeded in value that which came originally into the hands of the executor or trustee. The defendants say they have no knowledge of any sale, by the trustee, of trust negroes, but if any were sold they expect to be charged with the value thereof. They deny that the slaves were worth an annual value of $4000, as charged in the bill, above all proper charges for support and clothing of said slaves and taxes; and also deny that the property distributed to the trustee, for the use of the complainants, was worth the interest on the appraised value thereof.

They admit that said Jdhn gave no bond as guardian, and passed no guardian accounts; they admit the marriage of Elizabeth, and the death of her husband, but charge that, during his life, he took the possession and management of his wife’s property. The defendants admit the death of the said John, the execution of his will, their own appointment as executors, and their acceptance of the trust, their possession of his personal estate, and its sufficiency to meet all just and proper claims against it. They av.er that they have always been ready to account with the complainants concerning all just and proper claims which they may have against the estate of the said John, the complainants, however, having never, before bringing suit, presented any specific claim; and the defendants deny any such pretexts and excuses as are alleged in the said bill ,to have been made by them. ¹¹⁰ To this answer the general replication was put in. At April term 1854, the marriage of James M. Rush with the complainant, Elizabeth, was suggested, and he made a party complainant.

At July term 1854, the defendants asked leave to amend their answer, which was granted by the court. During the same term, the following agreement between the parties, was filed: “In this cause, it was agreed that this cairse be referred to William J. Byrd, with power to take such testimony, as a commissioner, on the usual notice, as may be offered by either party, reduce the same to writing and return the same to this court; and that hq, from the pleadings in the cause, and the proofs now , in the cause, and which hereafter may be taken by him, state such account or accounts of the trust as may be required by either party, and return said accounts, and all his proceedings to this court, for such action as shall be proper in the premises; and it is further agreed that all questions arising under the pleadings and evidence, shall be reserved until the coming in of the auditor’s statement.” The record states that, “In pursuance of which said agreement, by order of the circuit court here, the premises aforesaid are referred to the said William J. Byrd, Esq., for the purpose contained in and according to the said agreement.” At January term 1855, the defendants filed a “supplemental answer,” without oath, in which, they state that, during the life of their testator, John, the trustee, the account of the trust under the will of Littleton U. Dennis, kept by the said trustee, as stated in the original answer, was accessible to, and often seen by the complainants, George and Elizabeth, and that each of them had expressed themselves satisfied with the correctness ofi the same. That since the death of the trustee, the defendants, as his executors, have been ready and willing, at all reasonable times, to exhibit to the complainants, or to any of them, the original account of the trust, in the handwriting of the trustee, and have repeatedly offered to settle with the complainants, upon the basis of said account, the amount due to them, ¹¹¹ respectively, with interest, correcting all errors in said account. That in March or April, 1854, the defendants, upon request, furnished to the complainants, through their solicitor, a copy of said account.; and, as part of the supplemental answer, a copy of said account is filed, marked exhibit J.U.D. And the defendants tender the use of the said original account to the complainants, and to the proper officer of the court, in any account of the trust to be taken under the order of the court.

Then follows the copy of the account marked as exhibit J.U.D. To the supplemental answer there is a general replication. In 1857 the deatli of Elizabetli U. Rush was suggested, and James M« Rush, as her executor, made a party complainant. On the 27th of April 1857, the auditor, William J. Byrd, made a report, with which he relumed the documentary or written evidence, offered and filed with him by the parties; and also the parol testimony of the numerous witnesses examined before him. In his report he says, “that, according to the terms' of’ the agreement referring this cause to him, after having taken anil reduced to writing all such evidence as was offered by either party, he proceeded to state for the parties sundry accounts, according to their respective requirements.

For the complainants, and according to the instructions of their solicitors, he has prepared the statements and accounts herewith returned, designated Statement A — Statement B — and Statement G — Account E.U.D., No. 1 — Account E.U.D., No. 2— Account G.R.D., No. 1 — and Account G.R.D., No. 2, “For the defendants, and according to the instructions of their solicitors, he has stated and herewith returns the accounts marked Account L.U.D. — Account E.U.D., No.-3— Account E.U.D., No. 4 — Account G.R.D., No. 3— Account G.R.D., No. 4. The accounts G.R.D., No. 5, and G.R.D., No. 6, reported as made for the defendants, we are informed,- have been abandoned.- ¹¹² The auditor says, in his report, “These accounts have ail been stated in accordance With the instructions of the respective parties, not only in the general principles upon which they are stated, but also in the details of -the accounts. “The auditor, by- the terms of reference, Was not required to state any account upon his own responsibility, or according to his own views and discretion, but only to follow the instructions of the parties: He has not transcended the limits of the duty thus assigned him — but in every instance, where any doubt might exist as to his course; he has been governed by the instructions, written or verbal, of the party ¿t whose instance the particular account was stated.” After an explanation of the several statements and accounts,the auditor concludes by saying: “As to. the further details of these several accounts, they sufficiently explain themselves--and the auditor; tts he has before stated, having followed the instructions of the respective parties, in reference to the theory of the accounts, and the principles on which they are based, leaves the maintenance of their consistency and propriety to those at whose instance they have been stated.” When speaking of the documentary evidence offered, the' auditor, in his report, says: “The defendants also filed with the auditor; (as per their statement filed,) the following as evidence, to Wit: “The book of the testator, containing the account of the trust referred to in their answer to the bill, and tendered, and a copy filed With their supplemental answer.” This is the much controverted account, J.Ü.D. It appears in the record, and is preceded by the following language: “And at the same time, the said auditor, to wit; Willians J. Byrd; Esquire, exhibits and files in the said circuit court here, in the said cause,- a book purporting to be in the handwriting of - the said John U. Dennis, deceased, containing an account of the said trust; which said account, in the said book, ensues as follows, to wit:” The account is then stated; beginning in January 1834, ¹¹³ and ending November 1851, in regard to charges against the “estate of L. II. Dennis, deceased,” and beginning with the credits, in January 1834, and ending in June 1850. At the foot of the account appeal’s the following: “1850, January 1. — E. U. D. and G. R, Dennis having commenced keeping house this year, I have given the management of their property to them, and they have promised not to hold me responsible for their property any longer.

J amuuy 1st, 1850. ’ ’ There is an agreement signed by the solicitors of the parties, in relation to the copy of this account, filed by the defendants with their supplemental answer; which agreement is as follows: “In this causo it is agreed that in any accounts which may he taken in this cause, the defendants shall be credited with all charges for taxes paid, for repairs to buildings, for medical bills, and for board, clothing, tuition and other personal expenses of the cestui que trusts, George and Elizabeth, contained in the account marked ‘exhibit J.U.B.,’ filed January 4th, 1855, by the defendants, with their supplemental answer, as of the times therein charged, and against the particular cestui que trust, or both, as from the nature of the charge may be proper. And it is further agreed that the other items charged in said account, (except the item of $200 to Mrs. S. 1). Bayiey, and the item of $800 to Mary U. Dennis, which arc hereby absolulely rejected,) shall be considered and treated as the bills anti receipts of the persons to whom said payments profess to have been made, would be, if the same were produced and offered in evidence, and the execution of said receipts proved, and liable to all such exceptions as su< h bids and receipts would be liable to, if the same were offered in evidence; provided, that, in making this agreement, the complainants shall be understood as waiving any claim set up by the bill, or as admitting the propriety of the trustee’s management of the trust, or that said items, or any of them, except those hereby unqualifiedly admitted, are proper charges against the trust .estate, and legal ¹¹⁴ and competent evidence in this cause, or that said account fe a proper, or any account, of the trust created by the will set forth in the bill.” After having mentioned the book containing the “Account J.U.D.,” the auditor says, the defendants filed with him, as evidence, “also, another book of their testator, containing a Separate account against Elizabeth U. Dennis, in the handwriting of their testator. Also, a copy of said last mentioned account, marked E.U.D.” In addition to the above, he reports, the'bill obligatory of Wm.

Perkins, with the endorsements thereon, and receipt of balance by John U. Dennis. The report, also, includes sundry receipts for faxes, and other receipts for various sums paid to or for the cestui que •;trusts, which are not disputed. Among the papers filed with him-, by the defendants, the auditor says, is “also an account of the articles bought by Mrs. E. U. Dennis, at the sale of the personal estate of Littleton Dennis.” • The auditor, also, reports the following agreement, signed by the solicitors of the parties: “In this cause, it is hereby agreed that the paper writing herewith filed with the auditor, endorsed, ‘Division of the personal property of Mrs. Elizabeth Dennis and George R. Dennis, Esqu-ire,’ contains a full list of the negro slaves, and personal property, being and remaining on the real estate of the said Elizabeth and George, mentioned in the proceedings in this cause, received by the said Elizabeth and George from John U. Dennis, the trastee, in the year 1850, with a description and valuation-of the same, except those negroes opposite whose names the valuation is left blank, and it is agreed that said paper may be read by either party at the trial of this cause. “And it is further admitted that the negroes named in the said paper, are, as far as they go, the same named in the inventory of the personal estate of Littleton U. Dennis, mentioned in the bill, in this cause, and the residue are the natural increase of those who are named in said inventory; ¹¹⁵ olid that the negroes, described in the said inventory and not in said paper, have not been delivered by said trustee, or his executors, to these complainants, or either of them; but it is expressly agreed that this last admission shall not «fleet any question in reference to the negroes mentioned in the testimony of James H. White, before the auditor, as having been taken from the Essex farm by Mr. Overly, which might be raised but for said last mentioned admission.” The paper, alluded to in this agreement, shows, that ¡here are negroes included in the division, who were divided bv the parties without regard to valuation. It also shows, that Elizabeth’s part of the negroes valued, amounted to......$17,800.00 And her portion of other property amounted to 1,505.00 $19,305.00 George’s part of the negroes, as valued, amounted to the same sum as Elizabeth’s.

And his portion of other property also amounted to the same as hers. Having reported the statements, accounts, and other matters already mentioned, the auditor says, “that since the making of his report in this cause, he has, at the request of the complainants, and by their directions, prepared, and herewith returns, an additional statement, designated 'Statement D,’ exhibiting the personal -property of Littleton U. Dennis, deceased, included in the inventory by the executor according to his account of sales, and the residue specifically remaining unsold in the hands of the executor. Prom this Statement it, appears, that there remained in the hands of the executor after the sales reported by him, exclusive of legacies, personal property spedRealty, amounting to $9,020.94.” The statement shows this balance of $9,040.94 is exclusive of legacies, and of negroes also. It likewise shows this balance includes, as property appraised in the inventory and not included in the list of sales, 477-J- lbs. of wool, 1340 bushels of com, and 75 bushels of oats, appraised at $894.34, and also the crops at White Haven, Annamcssex and Essex, -“including the tenants,” “estimated” and appraised at ¹¹⁶ $4,838.00.

None of these appearing in the list of sales, returned by the executor, the auditor includes them in the balance of unsold personal property. “Statement A” is designed to show the annual value or income of the negroes of the estate from 1834 to 1849, inclusive ; being rates fixed upon by the complainants, according to their views of the weight of evidence. “Statement B” is intended to show the balance of personal property, other than negroes, distributed to John U. Dennis, as trustee, for the use of the cestui que trusts, in the settlement of his account as executor. After reporting this statement, the auditor discovered it to be erroneous, and corrected the errors, by reporting another. In the second, he makes the value of the negroes distributed to be, - -......$13,671.00 And the other personal property distributed to be, 6,399.59 $20,070.59 The difference between this sum and the amount stated in the distribution, (exhibit K.,) as it appears in the office copy, results from a correction of the error in relation to the sperate debt due from Wm. Perkins. “Statement C”‘presents the claim of George R. Dennis, for the timber cut on the White Haven farm, in 1846, according to the testimony of Win.

Holliday, amounting to the sum of $888,00. In “Account E.U.D., No. 1,” as corrected by the auditor, the complainant, J. M. Rush, in right of his deceased wife, claims a balance of $48,167.21, as due the 1st of April 1857. In “Account E.U.D., No. 2,” as corrected, the balance claimed is $40,661.33. The difference between these two accounts results from compound interest being charged in one and omitted in the other.

In “Account G.R.D., No. 1,” as corrected, George R. Dennis claims a balance of $53,068.37, due 1st of April 1857. ¹¹⁷ In “Account, G.ll.l)., No. 2,” as corrected, the balance claimed to be due, 1st of April 1857, is $46,698.38. Compound interest is charged in No. 1, and not in No. 2. In relation to the four accounts just mentioned, the auditor says: “the allowance to the trustee for taxes paid, is according to the vouchers filed with the auditor, which differ in •some cases from the amounts charged in account J.U.D., filed by the defendants.” In his report, whilst making an explanation of “Statement A,” the auditor says: “All the accounts stated at the instance of the complainants, discard the management of the trust as conducted by tito trustee, and claimed to be accounted for in the account hi. U.I).,’ — and seek to establish from other sources the actual value, under fair management, of the trust property during the continuance of the trust.” The explanation given to “Account E.U.D., No. 1,” contains the following remarks: “It then makes him (the trustee) allowance for all the personal expenses of the cestui que trust, charged in account J.U.D., filed with the defendants’ answer, which are clearly applicable to hot- — and with one half of all the expenditures for taxes, medical bills, repairs, and other expenses applicable to both cestui que trusts, and admissible or chargeable under the complainants’ theory in stating the account; of course, ail charges growing out of the cultivation of the estate, are rejected from the account.” Defendants’ statement, or “Account L.U.D.,” is intended to be a synopsis of the complainants’ exhibits D, E, F, G, H, J and K, filed with their bill, they being the inventory, accounts of sales, lists of sperate debts, administration accounts and distribution, as they appear of record in the orphans court.

This statement corrects the error in the charge of the sperate debt due from Win. Perkins; which error appears to be conceded by the complainants. This account, the auditor says, “in other respects agrees with the accounts passed in the orphans court. It ascertains the balance distributed to the trustee in money and in specific property, in a manner explained by a note appended to the account.

The defendants assume that the sales of grain, ¹¹⁸ &c., charged in account J.U.D., for the year 1834, are sales of property included iu the inventory of Littleton U. Dennis’ estate. That amount is accordingly brought into the administration account, instead of being included in their statement of the trust account. Assuming that amount of the property included in the inventory, and not in the list of sales, to have been converted into money, this account shows the balance distributed to the trustee for the use of the cestui que trusts,, in negroes, $13,671.00 — in specific property other than negroes, $5959.40 — and in money, $438.30-. It also shows that $12.12 was distributed to the trustee as the proceeds of a legacy bequeathed to E. U. Dennis, and sold; and that $49.40 was distributed to- the trustee as the proceeds of a legacy to George R. Dennis, also sold.” The following are the auditor’s explanations of the defendants’ accounts, of the trust, E.U.D., No. 3 and No. 4, and G.R.D., No. 3 and No. 4: - “Account E.U.D., No. 3-, between the trustee and E. U. Dennis, is based upon the account J.U.D. It excludes, however, the proceeds of grain,, &c., sold in 1834, according to account J.U.D., the same having been included by them in the administration account, L.U.D. It also excludes the legacies to Mrs. Mary Bayley and Mary U. Dennis, according to agreement No. 2.

Excepting these items, account E.U.D., No. 3, charges the trustee with half the proceeds of grain from Essex, half the rent of mills and houses and lots on Newbold tract, and with the proceeds of grain from Annamessex farm — with half the annual interest on $438.30, balance in the trustee’s hands in money, on settlement of his administration account — with annual interest on the proceeds of legacy to Elizabeth, sold and distributed to trustee — with annual interest on the value of negroes Ephraim and Rose Ann — and with any other items charged to him in account J.U.D., applicable to Elizabeth U. Dennis, for each year from 1834 and 1835, (which are included in one account,) to 1850 and 1851, (also included in same account,) inclusive. Allowance is made to the trustee in each year for all the dis- * bnrsements in the account J.U.D., applicable to E. U. Dennis ¹¹⁹ ■ —all the disbursements applicable to both cestui que trusts7 or not specified as to which cestui que trust applicable, are divided, and one-half allowed to the trustee in this account, and the other half in his account with George R. Dennis. He is also allowed a commission of six per cent, on the income, according to the previsions of L. U. Dennis’ will. A statement is then made, as of the 1st of April 1857, in which tire trustee is charged with half the balance remaining in trustee’s hands in money, on settlement of account as executor — with half the value of negroes Ephraim and Rose Aim — with the legacy distributed of Elizabeth U. Dennis — • with interest on the same from 1st January 1850, to 1st April 1857, also with the balances of accounts for the several years in which the receipts by the trustee exceeded the expenditures, with interest on said balances from the time they are ascertained to the 1 st of April 1857, and is allowed credit for the balances of accounts for the several years in which the disbursements by the trustee exceeded the income, and also for the payment of $100, made by the executors of John U. Dennis to Elizabeth 5J.

Dennis. This statement shows balance due James M. Rush, (the representative of E. U. Dennis,) as of the 1st of April 1857, of $3522.30. In the statement of the defendants’ accounts, it has sometimes been very difficult, if not impossible, to tell whether an item of expenditure was properly applicable to both, or one only', of the cestui que trusts — in such cases, the auditor has generally been governed by the direction of the defendants as to the particular item, and he leaves to them the maintenance of the propriety of the course pursued. In 1848 and 1849, crops from Essex and Annamessex are mixed in the charge in Account J.U.D. The auditor has, by instructions, divided the proceeds equally between the two farms, giving half to E. U. Dennis, as the proceeds of Annamessex, and dividing: the remaining half between E. U. Dennis and George R.Dennis, as the proceeds of Essex.” “Account E.U.D., No. 4, adopts the account E.U.D., No. 3,” (to the end of the year 1851,) “and makes a statement between the trustee and cestui que trust, Elizabeth U- ¹²⁰ Dennis, as of the 1.6th of March 1852, the period at which George R. Dennis, of L., the younger of L. U. Dennis’ children, arrived at the age of twenty-one j^ears.

That statement charges the trustee, as in account E.U.D., No. 3, except that it does not charge any interest on the annual balances against him- — allows him the samé credit as in the preceding account; and shows balance in favor of the trustee, at that time, of $51.20. That balance, and the payment of the executors of J. U. Dennis, with interest on them to the 1st of April 1857, show balance due to the executors of the trustee, from E. U. Dennis’ representative, of $186.-77, on the 1st of April 1857.” „ “Account G.R.D., No. 3, is stated on the same principle as Account E.U.D., No. 3. The trustee, in it, is charged with half of the items divided in Account E.U.D., No, 3, and with the proceeds of White Haven farm, and the interest on’legacy to George R. Dennis. He is allowed credit for half the disbursements divided in Account E.U.D., No. 3, and for all the disbursements applicable to George R. Dennis only, or to his property, from each year, from the beginning to the close of the trust — 1834 and-1835 being included in one statement, and the expenditures, after the 1st of January 1850, being also included in a single statement.

A statement as of the 1st of April 1857, shows a balance due George R. Dennis, of L., by the executors of the trustee, as of that date, of $8,251.33, over and above all payments.” ■ Account G.R.D., No. 4, adopts the Account G.R.D., No. 3, to the end of the year 1851, and therefrom a statement is made between the trustee and George R. Dennis, as of the 16th of March 1852, making the same charges and credits as in the statement of the same date of Account G.R.D., No. 3, except that interest, in Account No. 4, is not charged on the annual balances against(the trustee. The auditor says: “This statement shows balance due George R. Dennis, 16th of March 1852, of $4,009.94, computing interest on this balance, and deducting payments made by the executors of the trustees, to the 1st of April 1857, a balance is found due to ¹²¹ George II. Dennis by said executors, at that period, of $1,957.16.” The payments above mentioned, as made by the executors to George R. Dennis, are shown by two receipts, which are not disputed; one dated 1853, March 21st, for $2500.00, and the other February 4th, 1854, for $200.00. The court below decided: First.

That the trustee, John U. Dennis, in the use and employment of the trust estate, acted discreetly, and entirely within the contemplation and limits of the trust conferred on him by the will of Littleton ¡J. Dennis, deceased. Secondly. That, in the management of the trust, the trustee exercised great care, diligence and fidelity. “ Thirdly. That Account J.U.B., should be received by the court as on account of the rents, issues and profits of the trust estate, and of the disbursements on account thereof, and for the use and benefit of the cestui que trusts, because of agreement No. 2, filed in the cause, and of the death of the trustee before the expiration of the term or period of the trust, and before he could have a settlement of the trust with the cestui que trusts, and the said account being in the handwriting of the trustee, and bearing intrinsic evidence of having been kept by him, and intended as an account of the products and proceeds, and expenses of the trust estate, and cestui que trusts; and because of the entire absence of evidence to impeach the correctness of said account, or to show that irremediable, or any loss, or injury must or will result to tlie complainants, if said account is so received.

Fourthly. That the complainants should not he allowed compo und interest. Fifthly. That the trustee should not be charged with simple interest, as claimed by the complainants, upon the excess of the products of the said estate, over the expenses thereof, in the occasional years of the trust, when the products did exceed the expenses.

Sixthly. That the trustee should not be charged with, nor account for, the amount of the personal estate of his deceased testator, as shown by the final account passed by him ¹²² as executor, in the orphans court, and filed in the cause; because such account is shown by the evidence tobe erroneous; but that he should be charged with, and account for, the maount shown to be correct by all the evidence in the cause. Seventhly. That the trustee should be charged with, and account for, the values of negroes Oelia Ann, Charlotte and Hester, mentioned in1 the proceedings, and with the interest thereon, from the 1st day of January 1850, to the date of the decree for the benefit of the two cestui que trusts; and also with the value of the timber cut and sold by him from the “White Haven farm,” with interest thereon from the 1st of January 1847, to the date of the decree, for the benefit of the cestui que trust, George R. Dennis.

In regard to Elizabeth U. Dennis’ portion of the trust estate, the court below adopted the account E.U.D, No. 4, up to the 16th of March 1852, correcting it by the addition of one-half of the value of the above named negroes, Celia Ann, Charlotte and Hester, valued as follows: Celia Ann, ----- $675 — $337.50 Charlotte, ----- 650- — 325.00 Hester, - - - - - 450 — 225.00 Adding interest on the half of such value from the 1st of January 1850 to the 16th of-March 1852, and then charging the trustee with interest on the balance of the account thus corrected, from-the 16th of March 1852 to the 15th of January 1⁸⁵⁸, the date of the decree, allowing him the credit of $100 as paid to Elizabeth, by the executors, on the 26th of November 1853. The- account, so adjusted, shows a balance in favor of James M. Rush (as surviving husband and executor of Elizabeth) of $1188.1-0. A decree in his favor was passed for this sum,, less a moiety of the costs incurred by the defendants in this suit. In relation to George R,.

Dennis’ claim, the court adopted the account G.R.D., No. 4, up to the 16th of March 1852, corrected by the addition of one-half the value of the three negroes above named, also adding $888 for the estimated value of the timber cut and sold from the “White Haven ¹²³ farm,” and including interest upon half the value of the said three negroes, from the 1st of January 1850 to 16th of March 1852, also upon the estimate of the said timber, from the 1st of January 1847 to the 16th of March 1852; and then charging interest on the balance of the account, thus corrected, from the 16th of March 1852 to the date of the decree, allowing credits for the payments made by the executors of the trustee to George R. Dennis, already mentioned in explaining Account G.R.D., No. 4. The account, when thus corrected, will show a balance in favor of George R. Dennis of $5029.53; in whose favor .the decree was passed for this sum, less a moiety of the costs in this ease incurred by the defendants. Having, with much care, examined the pleadings, evidence, and other proceedings in the cause, it appears to the court that the substantial merits of the case require that it should be remanded, for further proceedings, under the Act of 1832, ch. 302; and therefore the .cause will be remanded without reversing or affirming the decree. In doing which, it becomes our duty to- express our views in regard to the points which have been made, and which are presented by the record.

The bill states that the complainants are advised that it was the duty of the trustee to rent out the lands, to hire out the negroes, and to convert into money all the other trust property, and invest the proceeds. Because this was not done they claim the right to demand what the trustee might have made but for such neglect or failure to perform his duty. The defendants insist that upon this issue the complainants’ whole case depends. And, a's exceptions to the averments of the bill have been filed, it is said that unless they can maintain the issue thus made, the facts set forth in the bill are not sufficient to entitle them to the relief prayed, or to any relief.

To such a position we cannot yield our assent. There can be no doubt that the will gave the trustee very large discretionary power. The language on the subject is, “I also authorize and empower my said brother to exercise any control or act of ownership over my real estate, of which ¹²⁴ I, myself, am capable, except the selling of the whole or any part of it, or the selling of timber off it. ’ ’ The entire residuum of the personal estate, after payment of debts, legacies nnd expenses of administration, was given in trust, with power in the trustee to sell any part thereof. Haying such discretion, instead of being obliged to. rent, out the lands, the trustee possessed the authority, if he deemed,