Montgomery's Appeal

Mr. Justice Sharswood

delivered the opinion of the court,

By his last will and testament, dated November 20th 1832, the testator, John Bowen, appointed his wife, Martha P. Bowen, executrix, and his brother-in-law, Austin Montgomery, executor, and authorized and empowered them, and the survivor of them, whenever they, or the survivor of them, at any time before his son should attain the age of twenty-one, should think it expedient so to do, to sell his real and personal estate and property in the island of Jamaica, either at public or private sale, and directed .them, in case of such sale, to invest the proceeds. In the said property, or the proceeds of such sale, he devised and bequeathed to his said wife a life-estate, with remainder to his children; and in the event which happened of their death unmarried, and without issue, before the age of twenty-one, then to his sister, Isabel B. Montgomery, wife of Austin Montgomery, for her own use during her life, and upon her death to his half brothers, Ralph W. Peacock and George S. Peacock, absolutely in fee. He made his wife his residuary legatee. There was no direct evidence of any sale under the provisions of the will, but Mrs. Martha P. Bowen, the executrix named, died July 15th 1849, having first made her last will, in which was the following clause: “ I direct that so much of my 6 per cent, bonds of the city of Cincinnati, as may be necessary for the purpose, be sold, and the proceeds thereof to be applied as a repayment to the Bowen Hall estate, in the island of Jamaica, for certain moneys received from the sale of land belonging to the estate, and which moneys have been used in the management of said estate.” In pursuance of this direction, her executor after-wards paid to Austin Montgomery, surviving executor of John Bowen, $2929.61, of'.which $431.93 ivas afterwards refunded to meet claims against the estate of Mrs. Bowen, leaving the sum of $2497.68, which, with -interest, is the amount awarded below to the appellees, who are the representatives of Ralph W. Peacock and George S. Peacock. Austin Montgomery died in 1855, having first made his last will and testament, by which he devised and bequeathed his whole estate to his wife, Isabel B. Montgomery, and appointed her the executrix. She never filed an inventory, nor settled any account of her husband’s estate. She died in 1865, having left a will, in which the appellants were named as executors. By subsequent proceedings, which it is unnecessary to recite, it Avas found that Mrs. Isabel B. Montgomery had received from her husband’s estate an amount sufficient to meet the claims of the appellees for this and other sums. After a controversy in regard to the will of Mrs. Montgomery was finally decided, letters testamentary were issued to the appellants, July 17th 1866. They filed their account April 21st 1868, Avhich Avas referred to an auditor, before Avhom the appellees appeared by counsel, and made claim to the sum now in controversy. This is a succinct statement of the facts so far as material to the question involved in this appeal.

It is very clear that the amount received by Austin Montgomery, under the provision of the will of Mrs. Bowen, before referred to, Avas received by him in his character as surviving executor of John BoAven, and Avas held by him in trust for the purposes of his will. It did not lie in his mouth to say that it was not the proceeds of a laAvful sale by the executors. Even if this had been the fact, it Avould not have altered the case. He received it as bequeathed by the will, “ as a repayment to the Bowen Hall estate, in the island of Jamaica, for certain moneys received for the sale of land belonging to the estate.” He took it, therefore, upon that footing — impressed with the trust — however, in truth, the money may have come to the hands of the testatrix. Nor can it be pretended that Mrs. Bowen, as life-tenant, had any right to use such proceeds in the management of the estate. She honestly recognised that they had been misapplied by her, and therefore directed them to be repaid to the estate.

It only remains then to inquire whether the appellees have been guilty of such laches as should preclude them in a court of equity from now advancing this claim.

Mrs. Isabel B. Montgomery was the life-tenant of the fund under the will of John Bowen, and the appellees, as remainder-men during her life, had no right to any part of it. Concede that they knew, or might have known, that there had been a breach of trust in Austin Montgomery in not investing it as directed by the will, Mrs. Montgomery was entitled to the interest for life; and supposing the principal to have been paid, or given to her by her husband, all that they could have done was to demand an inventory and security. If they were satisfied, either with Austin Montgomery or Mrs. Montgomery, as fully able to respond in their estate when the time should arrive, they had a perfect right to remain quiescent. They needed no further security. They made their claim as soon as they could do so with effect. We see no laches whatever wrhich ought to bar them.

There is undoubtedly an error in the decree in not deducting from the amount the interest on $2639.32, from the date of Mrs. Bowen’s death, July 15th 1849, to the date of its payment, May 21st 1851, to which Isabel B. Montgomery, as life-tenant, was of course entitled. For this error the decree must be reversed and the record be remitted, in order that the final award of distribution may be corrected accordingly.

Decree reversed and record remitted, that the award of distribution may be corrected according to this opinion. Each party to pay their own costs of this appeal.