the judgments recovered, and continued to pos that may be "any wise belonging to me." sess the lands peaceably till William Primrose. But what interest was thus vested in the execan attorney of the complainants, visited Ken-utors concerning it? A mere naked power to tucky in 1837 to look after their interests. sell or a power coupled with a trust? or mere

The previous special attorneys hau not interly a power coupled with an interest? These fered, as Hutchinson, one of them, soon died. are necessary inquiries as to the question made and Bennock, the other, declined to act. And in the case, that these lands have escheated to Samuel Taylor, in letters to him in 1824 and the State of Kentucky, and also are useful, if 1825, inquiring, among other things, if Savage not necessary, towards settling the validity of had returned to South Carolina and exhibited the sale by Savage, and the place where, if any further account of his doings in the ordinaliable at all, he can be made to account for the ry's court, makes no mention of the Kentucky proceeds. To determine these inquiries, it will lands. be necessary to look further into the will.

Primrose, soon ascertaining that, in 1818, In that, after directing the payment of a few Savage had sold about eleven hundred acres of small legacies out of the proceeds of his propthem, and the rest had been suffered to remain erty, he proceeds: "I do hereby order, give, in the possession of the former occupants, per-grant, and devise all the remainder or residue suaded the latter to give him something more for a relase or quitclaim, but a sum, including what had been paid to Savage, not at all equal to their full value.

of my estate which shall remain after paying the before mentioned legacies to my dearly be loved brother, Samuel Taylor," etc., "and to my beloved sister, of the same place, share and It is a very important fact, in connection share alike, provided they shall be both alive with this arrangement, that Primrose, though at the time of my decease and have issue, at first denying the validity of Savage's doings, which issue, after their respective deaths, shall was compelled, in order to effect a compromise share the same equally," etc. On this and the with the occupants and obtain something more previous provision in the will, coupled with on a settlement, finally to agree, under his the facts which have been mentioned, we conhand and seal, in behalf of the plaintiffs, "as sider the law to be, that William F. Taylor, far as it is in their power to do so, to ratify taking this property by a deed which made it and confirm the deed made as aforesaid by the an express trust in his hands for the heirs of said Savage," but "reserve to themselves the bene- William Forbes, held it as trustee for them till fit of all claims they may have against the said his death. He then virtually devised the trust Savage or his representatives for the considera- and the lands to the complainants, by directing tion which the said Savage received for the sale that the lands be sold, and, after discharging of the land aforesaid." After executing the some special legacies, the proceeds be paid over releases, he visited Samuel Savage, in Alabama, to the complainants, as his residuary legatees. and demanded of him the money he had re- *The executors were thus invested with [*267 ceived in behalf of the heirs, and indemnity for a power to sell, coupled with a trust; and the injuries they had sustained by his alleged neg-residuary legatees thus became trustees to the lect in respect to all the lands. heirs is William Forbes. To identify those Another material circumstance is very im- heirs is somewhat difficult, but is very imporperfectly stated in the record; but it is probab-tant to a true construction of the will. Probly thus: When William F. Taylor died, in 1811, both Nathaniel, the son of William Forbes, 266*] and Elizabeth, the sister of William Forbes, being the mother of Taylor, were aliens.

ably, in 1810, they were his son Nathaniel, who, dying between that period and 1815 without issue, his grandmother, Elizabeth Forbes, succeeded to him; and, on her death about that time, the complainants, her only surviving children, succeeded to her. As all these, except Nathaniel, were aliens, and he was in feeble health in 1811, the paramount intention of the testator doubtless was to prevent an escheat of this and his own property. From considerations of affection, as well as duty, he must have desired to secure both that and his own estate free from escheat in the hands of those near relatives likely soon to be the heirs both of William Forbes and himself.

On these facts, it is next to be decided, whether the interests of the complainants were such in the lands in Kentucky, when Samuel Savage sold a part of them, in 1818, as to make him liable to the complainants for his conduct, wherever he might reside; and, if so, to what extent. It is first manifest, from a part of the statement, that the interest of William F. Tay lor, at the time of his death, was only that of a trustee in these lands, and not as the owner of any portion of them in his own rights. But still, in that capacity, he had power by his will accomplish this object. The one we have just to direct the sale of them by his executors, and adopted, considering him as devising the prointo whose hands the proceeds should after-ceeds of the lands, and hence their title, to his wards be placed, to be held, of course, for the benefit of the true cestuis que trust.

The clause in his will, bearing on the sale, is: "I do hereby order, will, and direct, that on the first day of January next after my decease, or as near that day as can conveniently be, that the whole of the property that I may die seized and possessed of, or may be any wise belonging to me, be sold."

Either of two constructions of his will would

brother and sister, subject to a power in the executors, coupled with a trust to sell them and pay certain legacies; or another, which would consider the power of the executors as one coupled with an interest, and vest the title at once in them for the purpose of selling the lands and discharging the small legacies and debts, if any, but holding the proceeds in trust to be paid over to his brother and sister, for This undoubtedly meant to empower the the benefit of the heirs of William Forbes, executors to sell the land he held in trust, as whomsoever they might then happen to be. well as that in fee, by including any property 'See 2 P. Wms. 198; 8 Ves. 437; Lewin on

Trusts, 234; Peter v. Beverly, 10 Peters, 533. | mit it. 4 Kent's Com. 304, 319; 10 Peters, 535; One of these seems also to have been the con- Schauber v. Jackson, 2 Wend. 34; Bradstreet struction put on the will by Samuel Savage v. Clarke, 12 Ibid. 663; Bloomer v. Waldron, 3 himself, as he proceeded to visit Kentucky Hill, 365; Oates v. Cooke, 3 Burr. 1684; Jacktwice to discharge his trust in relation to these son v. Martin, 18 Johns. 31; 1 Ves. Sen. 485; lands, and finally sold about a fourth of them Coster v. Lorillard, 14 Wend. 299. They are as surviving executor, which he could not inclined, also, when considering it a trust, or have done honestly, unless deeming himself a power coupled with an interest, to have possessed of more than the naked power which its duration and quantity commensurate with his executor in his answer now sets up. In the object to be accomplished. Shelly v. order to survive to him, it must have been a Edlin, 4 Adol. & El. 585; White v. Simpson, power coupled either with a trust or an interest. 5 East, 164; 1 Barn. & Cress. 342; 5 Taunt. See cases post. To show that the executors, 385. Though the distinctions between these by such a devise, became possessed of a power different powers are not always well preserved, coupled with a trust at least, reference may be no doubt exists that a power coupled with an had to the following cases beside those already interest may be inferred by obvious implicacited: 1 Atk. 420, 469; 2 Johns. Ch. 254; Clay tion from the whole will, as the fee not being et al. v. Hart, 7 Dana, 1; Sugden on Powers, at once vested elsewhere, and it being neces95, 167; 3 Co. Litt. 113, note, 146, 181, a; 2 sary to have it in the executors to effect the Story's Eq. Jurisp. sec. 790; 5 Paige, 318; general design (Jackson v. Schauber, 2 Wend. Zebach v. Smith, 3 Binney, 69. One of the 1, 54, 55, overruling S. C. 7 Cowen, 193), as tests on this subject is, that a naked power to well as from the usual course, which is by an sell may be exercised or not by the executors, express devise to the executors. Bradstreet v. and is discretionary; while an imperative direc- Clarke, 12 Wend. *665, 667. Nor is [*269 tion to sell and dispose of the proceeds in a it of any consequence how small the interest certain way, as in this case, is a power coupled be. Osgood v. Franklin, 2 Johns. Ch. 20; with a trust. 7 Dana, 1; 10 Peters, 533; 12 Bergen v. Bennett, 1 Caines' Cas. in Err. 16; 2 Wend. 554; 2 Story's Eq. Jurisp. sec. 1070; P. Wms. 102. It is enough if only to distrib10 Ves. 536. ute the proceeds as here, or to take the rents or use for the benefit of others. Same cases, and 14 Johns. 555; Zebach v. Smith, 3 Binney, 69. The interest, too, may be equitable or legal. Hearle v. Greenbank, 3 Atk. 714; 2 Johns. Ch. 20. And it is an interest not required to yield a profit or gain, but any title in the estate itself, the thing to be sold. Hunt v. Rousmanier, 8 Wheat. 174, 206. Being given by the will, when it is a power coupled with an interest, and the conveyance under it being by and through the will, it is of course for the use of the person designated in the will, as if it was a devise over to him. And if the whole scope and design of the will could not otherwise be accomplished, it might not therefore be unjustifiable in a court of equity, in a case like this, to let the title vest in the executors first, for the purpose of being sold and turned into personal estate, for the alien legatees, in order to avoid the very escheat now set up by the respondent. Craig v. Leslie, 3 Wheat. 376, 377; 1 Ves. Sen. 144, 485; 4 Kent's Com. 304, 310, note; 14 Wend. 268. Indeed, a court of equity, if it should appear If William F. Taylor, when making his necessary, in order to avoid an escheat, and to will, supposed that he, as trustee of this land, enforce any apparent devise of the testator could direct the proceeds to be paid over to when trustee, directing land to be turned into others than the heirs of William or Nathaniel money and to go to certain legatees, or cestuis F., the devise would none the less show his in- que trust, and look to substance rather than tent to pass to the executors a power to sell form, will consider the act as done at once, coupled with a trust; and they would none the which is directed to be done, and the land as less take it coupled with a trust. Indeed, if it money, and thus to be passed to those entitled was necessary, in a case like this, to carry into to it. Peter v. Beverly, 10 Peters, 533, 563; 3 effect the leading object of the testator in the Wheat. 563; 5 Paige, 318; Bogert v. Hertell, will, to consider him as granting to the execu-4 Hill, 495; 2 Story's Eq. Jurisp. sec. 790; tors a power coupled with an interest, rather Newland on Contr. 48 to 64, and authorities than one coupled with a trust, it would not be cited. difficult to sustain such a construction in a But as the title here can be considered as court of equity, as we have before intimated. passing to the complainants at once, leaving Courts, in carrying out the wishes of testators, only a power coupled with a trust in the execthe pole star in wills, are much inclined, espe- utors, and still accomplish the object of the cially in equity to vest, all the power or inter- testator in preventing an escheat, we are inest in executors which are necessary to effectu-clined to adopt that construction of the will as ate those wishes, if the language can fairly ad- the safer one, amidst several conflicting au

268*] *There are some conflicting cases on this subject; but it is not necessary to review them again, it having been so ably performed by Thompson, J., for this court in Peters v. Beverly, 10 Peters, 565. There, as here, the executors were not expressly named as the persons who were to sell the land, yet, say the court, "it is a power vested in them by necessary implication." See, also, 2 Sim. & Stu. 238; 2 Story's Eq. Jurisp. sec. 1060; 1 Atk. 420; 15 Johns. 346; 4 Kent's Com. 326; 2 Johns. Ch. 254; 4 Hill, 492. There, as here, it was also contended, that if they had the power to sell it was a naked one, and could not survive; but the court say, if they had another duty to perform under the will, with the proceeds, it was a power coupled with a trust or an interest, and survived. 10 Peters, 567; 15 Johns. 349. And the only difference is, that the subsequent duty to be performed there was the payment of debts, and here it was to pay over the money as legacies, and of course after the payment of any existing debts out of it.

an alien, so as to endanger the estate, but will rather pass a title to the executors in trust. 2 Wash. C. C. 447. So it has been held that, if it can be avoided, a court will not vest the estate in an alien by construction, in order to have it escheat, when otherwise it would not. 3 Leigh, 513, and cases cited.

thorities and opinions in relation to this question. See some of them in 4 Kent's Com. 321, note, 5th ed. In such cases, till the sale is made, the title usually vests in the heirs, if no other intent is manifest. Jackson v. Burr, 9 Johns. 105, 106; Denn v. Gaskin, Cowp. 661. But where it is given by devise, as here, and the devisees were not the cestuis que trust and heirs as to those lands when he died, it is proper that the title should be considered as passing by devise, and as being in the complainants by devise rather than descent. Jack-liable in Alabama, this part of the case must son v. Schauber, 7 Cowen, 197; Cowp. 661; 8 Wheat. 206, 207; 2 Wend. 34; Coster v. Lorillard, 14 Wend. 326. And the more especially is it so, when, if the heirs took it as heirs, it might escheat.

We are prepared next to see whether Samuel Savage or his representatives are liable to account for this property in Alabama, provided he is chargeable anywhere. Because, if not so

fail for want of jurisdiction in the State in which the proceedings were instituted; and the further questions as to his liability need not be examined.

*First, then, it happens, that though [*271 the heirs of Nathaniel Forbes and Elizabeth are the same persons here as the residuary legatees of William F. Taylor, yet they take an interest in the Kentucky lands and their proceeds, in a different right and for a different purpose from what they do in the property of William F. Taylor held in his own right. It happens, too, that the interest they thus take is derived from the deed by Mary Forbes to William F. Taylor, and not through the will of the latter, except as directing the trust property to be sold by his executors and paid over to them. It is impor

The case of Jackson v. De Lancy, 13 Johns. 555, reviews most of the cases connected with this question, and comes to the conclusion, 270*] *substantially, that the title to the trust estate would pass in a case like this to the residuary legatees, and be held by them for the cestuis que trust. See the cases there cited, among them Braybroke v. Inskip, 8 Ves. 417; 2 P. Wms. 198; Ex-parte Sergison, 4 Ves. 147; 1 Merivale, 450; 5 Pick. 112; see, also, Dexter v. Stewart, 7 Johns. Ch. 55. The better opin ion is, that a trust estate always passes in a general devise like this to the residuary legatant to observe also, in this connection, that their tees, if no circumstances appear to indicate a contrary intent. Braybroke v. Inskip, 8 Ves. 417, 436; 3 Ibid. 348; 4 Ibid. 147; 13 Johns. 537; Ballard et al. v. Carter, 5 Pick. 115; Marlow v. Smith, 2 P. Wms. 198, 201. Here, the circumstances fortify the idea, rather than impair it, that the trust estate was intended, in the end, to pass to the residuary legatees, as they were then probably supposed to be the cestuis que trust, and in fact became so before the devise took effect.

Another reason is, that the devisee would, if not cestuis que trust, hold the estate for them, and be bound to account for it to them, so as to make it safe. Marlow v. Smith, 2 P. Wms. 201.

taking of this property and the sale of it are neither of them by virtue of any letters testamentary issued in South Carolina; that the property is not assets of William F. Taylor collected or to be accounted for there; and as the sale made by Samuel Savage of a part of these lands was made in a different State, and of property situated in a different State, and the proceeds of it never carried into South Carolina, and the sale made after he had removed therefrom and closed up his administration there, no reason exists for making him account in that State for the sale. See 1 Rich. S. C. Rep. 116; 2 Wend. 471; 6 Pick. 481; 3 Mon. 514; Story's Conflict of Laws, sec. 523. So, not having taken out letters testamentary in Kentucky, or even proved the will there, and residing elsewhere, he could not be sued in that Fletcher's Administrators v. Wier, 7

This view of the case disposes first of the point made, that these lands had, before the sale by Savage, escheated to the State of Ken-State. tucky. It was hence argued that they could Dana, 348. It follows, then, that if liable at not be sold by him, though no office had been all for the proceeds of the sale of this trust found, the respondent considering an escheat property, being not that owned by the testator good without any office found. Montgomery in his own right, and the sale made by virtue v. Dorion, 7 N. H. Rep. 480; 6 Johns. Ch. 365. But that is correct only as to land cast by descent on an alien. 7 Čranch, 629. For, as to land taken by devise or purchase, an alien can always hold it till office found. Knight v. Duplessis, 2 Ves. Sen. 360; Co. Litt. 2, 6; Powell on Devises, 316; Hubbard v. Goodwin, 3 Leigh, 512; 3 Wheat. 589; Governeur's Heirs v. Robertson, 11 Ib. 332, 355; Fairfax v. Hunter's Lessee, 7 Cranch, 618.

It will be seen, on a very brief examination, that the idea of a descent cast upon aliens of these lands, on the death of William F. Taylor or Nathaniel Forbes, cannot be sustained under the opinions we have just expressed. The aliens took them by devise, and not by descent, in either of the two constructions of the will which can be at all vindicated. As a general principle, too, in all cases, a court of chan cery will not raise a use "by implication," in

of a power in the will, and not of letters testamentary, he was liable in Alabama, the State where he had his domicil; the State whither he carried his proceeds-where the demand was made on him by the complainants; where George M. Savage, his executor, took out letters on his estate, and where alone George M. Savage could be proceeded against for any claim against his testator. Bryan et al. v. McGee, 2 Wash. C. C. 338; Trecothick v. Austin et al. 4 Mason, C. C. 29.

Being liable, then, in Alabama, if at all, for the acts done in respect to these lands, it is next to be considered whether Samuel Savage or his representatives are responsible for them to the complainants at all, and if so, to what extent. When applied to in 1838, by Primrose, the attorney of the complainants, to pay over the proceeds of his sale, Savage admitted that in 1818 he executed releases of about one fourth

*Again, if all of several trustees de- [*273 cline the trust except one, the estate vests in him, and he is authorized to sell alone. 3 Paige, 420; 4 Kent's Com. 326, note; King v. Donelly et al. 5 Paige, 46; In re Van Schoonhoven, 560; Cro. Eliz. 80; 7 Dana, 1; Zebach v. Smith, 3 Binney, 69.

of these lands, in which he acknowledged a 562; 8 Wheat. 203; Jackson v. Ferris, 15 Johns. consideration received by him of more than 346. Several of the States have positive stattwo thousand dollars; that he professed toutes regulating this matter, and usually in this make the sale and receive the consideration as way. surviving executor of William F. Taylor, and by virtue of a power in his will, and that he never had accounted for the proceeds since, but contended that the sum actually realized by him was much smaller than that named in the deeds, and objected to pay over anything, though 272] *not assigning particularly his reasons for the refusal. But the counsel for the respondent now interpose various specific reasons against accounting for those proceeds beside that already disposed of, which questioned the jurisdiction over the matter in Alabama. One of their objections is the want of interest in the complainants as legatees or cestuis que trust to recover. Another is the irregularity, and indeed illegality, of his sale. Another is the small amount received, not exceeding his expenses. And another, still, is the statute of limitations. But we have already shown that the complainants, as residuary legatees, were entitled to the trust estate under the devise immediately, and, in any permissible view, as soon as it was converted into money, and would be bound to manage and account for it to the true cestuis que trust, if they were not so themselves. See before, 13 Johns. 555, and 8 Ves. 417, 436, and other cases. Being now, however, cestuis que trust themselves, as well as devisees, their interest in the proceeds of the sale is beyond controversy, there having been, as already shown, no previous escheat of the lands.

All the executors in this case, except Savage, declined to have any concern with these lands, and do not appear ever to have done anything concerning them. It is obvious, likewise, on principle, that where a sale is made under a will, which is merely the evidence of authority or power to do it, the omission to record it will not vitiate the sale, unless recording is in such case required by a local statute. If so required, the statute must of course govern. 9 Wheat. 565; 10 Wheat. 202. Probably the necessity for this must depend entirely on the local laws applicable to the transaction-the lex rei sitæ, 2 Hann. 124; Kerr v. Moon, 9 Wheat. 570; 7 Cranch, 115, and not on any general principles of international law applicable to immovable property. If not necessary by. those laws, the omission to do it would not be taken advantage of by anyone in any case; and if necessary, it would not seem very equitable to let the executor take advantage of it, who himself had been guilty of the omission.

But however this should be decided, looking to the laws of Kentucky, and how far it may In respect to the informality and illegality of be cured by the subsequent proof and record the sale, they are insisted on from its not aping of the will by Primrose for the complainpearing that all the executors except Savage were then dead, from his not recording the will in Kentucky, and from the verbal denial at first of the validity of his sale by Primrose. But it is to be remembered that this is a bill in equity, that the executors had a power under the will to sell this property, which was a power coupled with a trust. That is not a title to be made out at law under a special statute, where much strictness is required. 6 Mass. R. 40; 14 Ibid. 286.

Nor is it only a naked power, not coupled with any trust or interest, where much strictness is also requisite. Williams et al. v. Peyton's Lessee, 4 Wheat. 79; 10 Peters, 161, and others cases cited. But it is merely a case to show such a sale as may make, in a court of equity, an agent or trustee liable to those for whom he acts. Minuse v. Cox, 5 Johns. Ch. 441, and Rodriguez v. Hefferman, Ibid. 429.

ants (11 Peters, 211), and whether it is neces sary to take out letters testamentary in Kentucky to make such a sale, Lewis v. MacFar land, 9 Cranch, 151, we need not give any decisive opinion; since this branch of the inquiry, as to the liability of Savage, can be disposed of under a different aspect of the case.

If the land was sold informally by Savage, still it was sold in fact; it was conveyed in the character of surviving executor; the authority for doing it was claimed under the will; the money for it was received in this way; the lands were occupied quietly under his deed for near twenty years; the consideration was never paid back to the grantees, nor by law liable to be, as his deed was without warranty except against those claiming under W. F. Taylor, and, as regards them, was in the end expressly confirmed by his heirs and devisees under the compromise before detailed.

ing actually taken place, money been received under it, and the lands occupied in conformity to it so long, he was in the end obliged to compromise and confirm it for much less than the real value of the lands, and expressly reserved the right to resort to Savage for the amount he had received.

Now, it appears that Savage, in his deeds of It is true that their agent at first denied the this land, averred himself to be surviving ex-legality of the sale by Savage, but from its havecutor of Taylor's will. And the case discloses the death of two of them, but says nothing of the other, except, in 1824 and 1825 he is referred to as dead "some time ago." Consider ing him also as then dead, which is the probable inference from these facts, the right of Savage alone to sell under the will would be good. A power to sell, not merely a naked one, but coupled either with an interest or a trust, survives to the surviving executor. Peter v. Beverly, 10 Peters, 533; Co. Litt. 113 a, 181 b; Lewin on Trusts, 266; Sugden on Powers, 165, 166; 2 Johns. Ch. R. 1; 7 Dana, 1; 5 Paige, 46; 2 Story's Eq. Jurisp. sec. 1062; 10 Johns.

On a consideration of these facts, can there be a doubt that it is equitable to make Samuel Savage and his representatives pay over to the cestuis que trust the money he thus received or their account? Can they be allowed [274 to set up his own imperfect doings or neglect as a justification for not paying over what he

actually received for them, and still holds? Is he is liable, whether he himself gains by his he not estopped in equity to deny his liability misbehavior or not. Lewin on Trusts, 634; 3 to the complainants? Have they not suffered Bro. Ch. Cas. 198. But when we come to in their interests to this extent by his conduct? inquire, as the complainants insist, whether Have not he and his estate profited to this ex- Savage was not liable for a much larger sum tent by his sale of their property? These ques- on this ground than what was allowed in the tions can be answered only in one way, and court below, we are met by several difficulties. the replies must give a stamp and character to The amount, beyond the money received and the whole transaction in a court of conscience interest thereon, rests on estimates somewhat unfavorable to Savage. Consequently, in this conjectural after so long a lapse of time; and bill in equity between the parties as to a trust, the neglect itself is not so easily fixed with we think it manifestly just that the complain- much certainty, from a like cause, and the ants, as against Savage's estate, are entitled to death of parties preventing explanations, and this money; at least, to the amount adjudged an extraordinary omission for almost a whole in the court below. 1 Johns Ch. R. 620; 1 generation by the complainants themselves to Paige's Ch. R. 147, 151; 6 Paige, 355; 2 bring this business to a close. Savage, also, Johns. Ch. R. 1; 7 Ibid. 122. Simple inter- may have proceeded no further in subsequent est in such cases seems proper, and was allowed. years to sell the rest of the lands, and take 4 Ves. 101; 5 Ibid. 794; 16 Ibid. 410. As charge of the judgments which had been recovan analogy for estopping Savage to deny what ered, because discovering that Samuel and he has said in his own deed, see Speake et al. v. Mary Taylor, the heirs, had appointed HutchinThe United States, 9 Cranch, 28, and cases in son and Bennock special agents instead of himCom. Dig. Estoppel, a, 2. So, "it is a settled self to manage the Kentucky property. The principle of equity, that when a person under- degree of neglect to be made out for any sum takes to act as an agent for another, he cannot beyond that actually received is also different be permitted to deal in the matter of that and greater. When the trustee is made liable agency upon his own account and for his own for more, it must be, in the language of the benefit." Sweet v. Jacocks, 6 Paige, 365. books, "in cases of very supine negligence or willful default." 14 Johns. 527; Ibid. 634;

So, "every person who receives money to be paid to another, or to be applied to a particu-Pybus v. Smith, 1 Ves. Jun. 193; Palmer v. lar purpose, to which he does not apply it, is a trustee, and may be sued either at law, for money had and received, or in equity, as a trustee, for a breach of trust." Kane v. Bloodgood, 7 Johns. Ch. 110; Scott v. Surman, Willes, 404; Shakeshaft's case, 3 Bro. Ch. Cas. 198.

He is liable, then, first, on the ground that the cestuis que trust might confirm the sale and resort to the proceeds, as they finally did in this case. Story's Eq. Jurisp. sec. 1262; 2 Johns. Ch. 442; 1 Ibid. 581. It is true that such a confirmation must be full and distinct; whereas here a disavowal of it was at first made by their agent, and when it was in the end agreed to be ratified, the act was done on the receipt of additional money.

This, however, would not seem to vitiate it under the reservation made of a right to proceed against Savage for what he had received. The complainants, then, fully confirmed Savage's acts as a sale, just as much as if no further noney had been paid. Though they asked for this additional sum, this was no injury to Savage, and should constitute no objection to his paying over to them what his vendees agreed he should, and what he virtually promised to do, when taking the money for their property. But if this view of the matter was at all doubtful, another ground exists on which he might be made liable to a like extent, and on which the complainants seek to charge him for a much larger amount. The sale by Savage, if 275*] not valid and not confirmed, was still injurious to the complainants. It gave such a color of title to the tenants as to prevent the complainants from obtaining anything more for their lands, but by way of compromise, and then a price in all, including what was paid to Savage, far less than their true value.

A trustee is liable for misconduct or breach of trust or negligence, as well as for money actually received. Jacobs' R. 120. And if in these ways he injures the cestui que trust,

Jones, 1 Vern. 144; Osgood v. Franklin, 2 Johns. Ch. 27; 3 Bro. Ch. R. 340; 1 Madd. 290; Caffrey v. Darby, 6 Ves. 497. It would hardly be justifiable to find the existence of either of those after such a length of time, obscuring so much by its mists and obliterating so much by death.

Damages, likewise, for mere neglect would stand in a different attitude as to the statute of limitations from what we shall soon see it does as to money held in trust; and if the claim was on account of a breach of trust committed and perfected when the neglect first occurred, it would be difficult to overcome the bar occasioned by nineteen or twenty years since.

As to the remaining objection, under this head, that the sum received did not exceed Savage's expenses, this is not in the first answer, and comes from an executor who could not possess full means of knowing the facts, and is not entitled to so much weight as if it had been put in and sworn to by Samuel Savage himself. Carpenter v. The Providence Insurance Company, 4 How. 185, and cases cited there.

Besides this, there is no evidence to support the denial. It is not accompanied with [*276 any exhibit of expenses; and no account for them seems to have been offered in evidence in the court below. To overcome this denial stands the admission in the first answer of receipts, to the extent of three or four hundred dollars, and no set-off claimed; next, the acknowledgment to Primrose of something received; next, the recorded confession in the deed that $2,118 was paid to him; and, finally, the testimony of several witnesses to actual payments, and the solvency of all the purchasers. But if any doubt existed as to this amount being the proper one, with interest, it would be removed by the proceedings in the District Court, where the account was stated in this manner after an examination by agreement be