The last controverted item is the interest charged against this trustee. In the settlement of a trustee's account in a court of equity he is or is not charged with interest according to the circumstances. There is no statute or arbitrary rule on the subject. When a court of equity charges the trustee with interest, it is when, and only when, the circumstances of the case render it right and just to do so. In this case the various sales of real estate ran through a period from March, 1888, to February, 1902, and the trustee is charged with interest on each item at 6 per cent. per annum from the date of the sale to date of decree, January 14, 1904.
We do not think the circumstances of this case justify the charging of the trustee with interest. The evidence shows that he did not receive any interest on it, and, whilst it shows that he spent it for his own purposes and it is now all gone, yet he did so openly, believing it to be his own and under circumstances which show that the plaintiffs had notice of it. If the plaintiffs thought that they were entitled to a share in the proceeds of these sales, they ought to have said so earlier. But they allowed a period of about 18 years to pass after the final settlement in the probate court, and 10 years or more after defendant began selling this land, before they gave any intimation to him that they claimed any interest under their grandfather's will.
During all that time they seemed to acquiesce in that interpretation of the will on which defendant acted. They now say that these controverted items of credit claimed by the trustee are afterthoughts of his trumped up to meet the exigencies of this case, and very likely that is so, but the plaintiffs' case also bears evidence of being an afterthought. It would have appeared in a more favorable light if it had been brought to the attention of the court 10 years or more ago, or when defendant first began selling the land. The judgment of $140.29 on final settlement in the probate court would bear interest under the statute from the date of its rendition, but the record shows that since that date, and before the filing of this suit, the trustee paid out sums to the beneficiaries more than the amount of that balance; therefore the interest on that sum should not run in this account.
Taking all the other items of the account as stated by the court about which there is no controversy, eliminating the items of interest on both sides, giving the defendant credit for $1,575 in addition to the $900 allowed him by the court for the maintenance of the widow of the testator, and $500 as a fee for his attorneys, leaves as total amount of debits against defendant $10,118 and credits in his favor $4,904.71, leaving as a basis for distribution a balance of $5,313.29, but, as against the respective shares of some of the distributees, defendant is entitled to credit for amounts already paid them, as will be shown in the figures following.
The judgment is reversed, the account is restated to conform to the above views, and a final judgment will be entered here in accordance therewith, the defendant Linus Sanford to pay the costs incurred in the circuit court. All concur.
