Opinion
07-25-1878
COLTRANE v. WORRELL.
J. A. Walker, for the appellant. Tipton & Brown, for the appellee.
1. C, living in Virginia, trustee of D, a married woman separated from her husband, and residing in Missouri, holds bonds on a solvent debtor, well secured on real estate, which were executed before the war; and in 1863 receives payment in part of said bonds in Confederate money, and invests it for D in a Confederate bond. The receipt of Confederate money at that time was a breach of trust, and C will not be allowed a credit for the amount of the bond.
2. C, holding bonds bearing interest, will be charged with the interest falling due during the war, the debtors living in Virginia, and therefore bound to pay the interest to him.
3. By the terms of the trust, C was to pay the interest of the trust fund and as much of the principal as might be necessary for the support of D. Before the war he paid her some interest, and also since the war. In settling his account, whilst he will not be charged interest upon interest, his payments will not be credited upon the principal of the fund.
4. The trust deed provides that D shall have the interest and so much of the principal of the trust fund as shall be necessary for her support. If she dies in the lifetime of her husband she may dispose of the whole of the trust fund by her will, and if she survives him it shall be hers absolutely. She may have the trust fund removed to Missouri, and vested in a trustee appointed in that state to receive and hold it on the same trusts.
5. A trustee cannot derive profit from the trust fund without rendering an equivalent therefor. He is bound to execute the trust for the benefit of the cestui que trust, whether the latter live at home or abroad, or the trust is to be executed in peace or in war. If the trust fund be perfectly secure, bearing interest at the beginning of the war, he cannot voluntarily change it so as to make it insecure and bear no interest.
On the 30th day of March, 1857, Amos Worrell and Darthula, his wife, then of the county of Carroll, between whom there was then pending a suit for a divorce from bed and board, brought by him, compromised the matter, and in pursuance of the compromise he settled on her a portion of his estate, to be " secure from his control and disposition and free from all liability for his debts and obligations." Accordingly, by deed dated on that day and duly recorded, they conveyed to William Kyle, in fee simple with general warranty, a tract of land in the said county, and also certain slaves and other personal property, all of which is described in the deed, in trust to sell said real and personal estate as therein mentioned, and to divide the moneys arising from such sale and the bonds taken for property sold, into two equal parts, first deducting his commissions and all other expenses properly incurred in the execution of the trust, and to pay, assign and transfer one of said parts to said Amos Worrell, or such person or persons as he might direct, and the other part or half to Ira B. Coltrane, to be held by him in trust for said Darthula Worrell, " for her sole use and benefit." And it is declared in the deed that " it shall be the duty of said Coltrane to invest all such moneys as shall be so paid to him, or shall come into his hands from said bonds, in such stock and security, or to loan out the same on such security as he may deem best calculated to produce the largest amount of interest and profit, and to pay all such interest and profit as may come into his hands unto the said Darthula Worrell for her sole and separate use, or to such person or persons as she may from time to time order and direct by writing under her hand; and if such interest and profit should not be sufficient for the comfortable maintenance of said Darthula, the said Coltrane shall be at liberty to apply so much of the principal of the funds for that purpose as may be necessary; and full power is given to said Darthula, if she shall die before her husband, to dispose of said trust fund by any last will and testament by her to be made and executed as the laws of Virginia direct wills of personal estate to be executed; and in case she should survive her husband, then the funds of said trustee are to be paid over to said Darthula, to be disposed of and used by her as her absolute property." And the said Amos Worrell, by the said deed, relinquished and released all claim to the said fund for himself and all persons claiming under him, and agreed that the full control and use thereof should be in the said Darthula as therein provided for; and a provision was therein made for the appointment of another trustee if said Coltrane should decline to act as such.
The said Kyle seems to have sold the property conveyed by the deed on the 30th day of April, 1857, the real estate on a credit of three, four and five years, and the personal property on a credit of six months, and to have taken separate bonds from the purchasers for the portions due to the husband and wife respectively. The said Coltrane accepted the appointment of trustee for said Darthula, with all the duties required to be performed by him in said deed; and on the 27th of June, 1857, received from said Kyle $705.39 in cash and interest, and $2,211.81 in bonds, amounting together to $2,917.20, which appears to have been her portion of said proceeds of sale, for which he executed his receipt as trustee to the said Kyle. Three of the said bonds were for real estate, amounting, the first to $309.76, due 30th April, 1860, the second, to $619.52, due the 30th April, 1861, and the third to $619.52, due 30th April, 1862, and all three to $1,548.80. The rest of the said bonds, twenty-five in number, were for personal estate, some of them being small in amount, and all of them were due 30th October, 1857.
Coltrane, the trustee, seems to have paid to Mrs. Worrell, the beneficiary, on the 30th of April in each of the years 1858, 1859, 1860 and 1861, a sum about equal to or little more or less than the annual interest of the trust fund in his hands. But before the late war commenced, in 1861, she removed to the state of Missouri, where she has ever since resided and yet resides, and intends hereafter to reside. In consequence of such removal he paid her no money out of the trust fund, principal or interest, during the war; and since the war he has made her payments at different times, in the years 1868, 1869, 1873 and 1874, leaving still a large amount of the trust fund remaining in his hands.
As she intends permanently to reside in Missouri, and as it has been and must continue to be inconvenient for her to receive the trust fund from a trustee in Virginia, she desires to have it placed in the hands of a trustee residing at or near the place of her residence. She accordingly applied on the 14th of August, 1874, to the circuit court of Clinton county, Missouri, in which she resides, to appoint a trustee there to act for her in the place of the said Coltrane; and on the next day Granville M. Hiatt was appointed as trustee by the said court, and executed a bond with security as such trustee accordingly.
On the 7th day of September, 1874, Mrs. Worrell brought her suit in the circuit court of Carroll county to obtain a settlement of the account of her said trustee, Coltrane, and a decree for a transfer of the trust fund remaining in his hands to the place of her residence in Missouri. In her bill, to which she made the said Coltrane, Kyle, and Amos Worrell, her husband, defendants, among other things, she charges that she removed to the state of Missouri before the war, of which state she is now a resident and citizen, and not of the state of Virginia, in which latter state she has not resided for twelve or fifteen years; that the state of Missouri is her permanent home, and she intends to reside there as long as she lives; that she desires to remcve the fund and money due her under said trust deed to the state of Missouri, and has caused one Granville M. Hiatt, a citizen of that state, to be appointed a trustee to execute the trusts created for her in said deed. She filed with her bill documentary evidence of his appointment and qualification as such in the circuit court of Clinton county, Missouri. She states that he has accepted the trust, and executed bond with good security conditioned according to law, a copy of which she also filed with her bill. " She states that she has been compelled to make two or three trips to this state to get funds, as all appeals by letter proved unsuccessful, and that the trouble and expense of the trips is very considerable and largely exhausts the funds, and unless she can get her money transmitted to Missouri she will soon have spent it all in travelling from the latter-named state here and back again. She states that the trustee, Coltrane, has never made any settlement of the trust estate in his hands, or rendered accounts according to the terms of the deed," & c. After making defendants to the bill as aforesaid, and praying a settlement of the trust account, she further prays that a decree may be made for the removal and transmission of the trust fund to Missouri; that the same be paid over to said Hiatt for the purpose of being so removed and transmitted, and that she may have such further general and special relief as the nature of her case may require and equity can give.
On the 13th day of October, 1874, said Coltrane filed his answer to said bill in which, among other things, he says, " that a considerable portion of the fund placed in his hands consisted of bonds and notes, and he believing those amounts as secure as he could make them, deemed it unnecessary to collect and loan the same to others perhaps not so responsible. Of the remainder, respondent admits that he invested but little, and for the reason that he met with no opportunity he considered perfectly safe." He further says " that in the spring of 1863 he had on hand one thousand dollars of Confederate money belonging to said fund, and which sum he invested in Confederate states bonds, believing that to be the best manner in which he could invest the same at that time, as complainant had absented herself from the state, and he could not pay her anything, and which he has now on hand, and thinks should be allowed him in settlement." He denies the allegation of the bill, " that complainant has repeatedly tried to get money from him for her actual wants, and has at all times been unsuccessful." He further " denies that the terms of the deed required him to make any settlement, but states that he always has been and now is ready and willing to have a settlement." He further states that he " believes that the interest has always been more than sufficient for her wants, as she has never called upon him for the whole of the interest, and of the part received by her she has now, your respondent believes, some $400 loaned out." He asks " that under the provisions of the act of the general assembly in such cases provided, he may have an abatement of four years' interest in the settlement of his accounts as said trustee." He insists " that in equity he is entitled to so much at least, the complainant having absented herself from this state during the time of the late war, and thereby prevented him from having any opportunity to pay her any portion of the interest due her, which he would have done had she been here, and which amounts were therefore lost to him without any fault of his, having saved and kept secure the fund placed in his hands during the time of the late war and financial troubles, when so many estates were lost, and when respondent lost of his own means, and unavoidably, a much larger amount than the amount of the trust funds in his hands."
He further states that he " is advised and so answers that of the fund placed in his hands the complainant is only entitled to receive, and he authorized to pay to her, the interest and so much of the principal as may be necessary for her comfortable support, and that a court of equity will not cause a trust fund to be removed to a foreign state upon such a state of facts as are presented in this case; that he insists that he has faithfully performed his duty as trustee, and that if the provisions of the deed really entered into between the complainant and Amos Worrell should, on investigation, prove to be what he really thinks they are, he would not be authorized to pay any portion of said fund more than accrued interest and so much of the principal as might be necessary for her support, and that if he did so pay over the same the said Amos Worrell might hereafter be entitled to recover the same of him."
It appears that answers were filed by the two other defendants, Kyle and Amos Worrell. Kyle's is not material, and need not be further noticed here. Amos Worrell's is not in the copy of the record before this court, no doubt because not considered material.
On the 20th of October, 1874, there was a decree for the settlement of the accounts of said Coltrane before one of the commissioners of the court, who was directed to state and adjust the same, and make report to the court.
On the 9th of April, 1875, the report of the settlement made by Commissioner Brown in pursuance of said decree was filed in the cause. The commissioner submitted four statements of the settlement of said Coltrane's account as trustee. " In the first statement he is charged with interest during the war, and is not allowed a credit for the Confederate money received and bonded as stated in his deposition. This statement shows a balance of $2,557.54 principal, and $495.28 interest due from said trustee on the 20th day of April, 1875. In Statement No. 2 no interest is charged from April 30, 1861, to April 23, 1865, which, in this account, is the same as striking off the interest from April 17, 1861, to April 10, 1865, but said trustee is not allowed a credit for the money bonded as aforesaid. This statement shows a balance of $2,459.25 principal due from said trustee April 20, 1875. In Statement No. 3 interest is charged during the war, but the said trustee is allowed a credit for the money bonded as aforesaid. This shows a balance of $2,149.92 principal due from said trustee April 20, 1875. In Statement No. 4 no interest is charged during the period," & c., " and the said trustee is allowed a credit for money bonded as aforesaid. This statement shows a balance of $1,267.52 principal due from said trustee April 20, 1875."
On the 2d of April, 1875, said Coltrane's deposition was taken by the commissioner, in which he states " that sometime in 1863 he invested in Confederate bonds the sum of $810 of the funds in his hands as trustee for Darthula Worrell, which bonds are filed with the papers of the suit mentioned in the caption, and says also that he was not authorized to do so by any order of court nor Mrs. Worrell either, and the main reason for investing in Confederate bonds was, that he could get a higher rate of interest, and Mrs. Worrell being absent from the state, he did not know what better he could do."
Afterwards, to-wit: on the 30th of July, 1875, said Coltrane's deposition was again taken in the case, and appears to have been taken by or in behalf of the complainant. The witness then proved that the largest part of the money invested by him, as trustee aforesaid, in Confederate bonds, was received by him from C. F. Worrell in the spring of 1863, out of money due for the purchase of a tract of land of the said trustee, Kyle, in 1857, and that so far as witness knew, said Worrell was then and has since continued solvent.
On the 16th of October, 1875, the cause came on to be heard upon the bill, exhibits, answers, depositions, orders and decrees entered therein, the report of Commissioner Brown, and argument of counsel. Whereupon the court being of opinion that the first statement of Commissioner Brown is the correct one in the case, with this exception, that the defendant, Coltrane, should receive credit for the amount of Confederate money paid in taxes in 1864 and 1865, at its par value, instead of its scaled value, he was allowed a further credit of $23.75, of date March 12, 1864, and of $147 of date February 11, 1865, being the difference between the par value of said amounts and the scaled value allowed by the commissioner; and the court adopted and confirmed the first statement of said report, with the amendment aforesaid. It was therefore decreed that the complainant, Darthula Worrell, recover against the defendant, Coltrane, the sum of $2,557.54, principal, with legal interest thereon from the 20th day of April, 1875, and $495.28, interest, subject to a credit of $23.75, of date March 12, 1864, and $147 of date February 11, 1865, to be applied as a credit on the last mentioned amount, to-wit: the $495.28 interest. And it was further decreed that unless the defendant, Coltrane, shall pay over to Granville M. Hiatt, the trustee appointed by the circuit court of Clinton county, Missouri, appointed as such in this behalf, his agent or attorney-in-fact, within sixty days, all moneys in his hands belonging to the trust funds, and all notes, stocks and securities of every description, of the trust fund, execution shall issue in the name of said Granville M. Hiatt, for the amount herein-before decreed against said Coltrane, or for such amount or part of said trust funds which he, the said Coltrane, shall fail to account for and pay or turn over to said Hiatt within the time aforesaid. And it appearing that the complainant has complied with the provisions of the statute in such case made and provided, it was further decreed that the trust funds be removed to the state of Missouri, to be held by said Hiatt, as trustee, according to the terms of the deed of trust and separation aforesaid, and the statute in such case made and provided. And there was a decree for costs in favor of the complainant against said Coltrane; and the cause was continued with leave to the complainant to apply for any further relief necessary to carry into effect this decree.
From the said decree of the 16th day of October, 1875, the said Ira B. Coltrane applied to a judge of this court for an appeal; which was accordingly awarded.
J. A. Walker, for the appellant.
Tipton & Brown, for the appellee.
MONCURE, P., after stating the case, proceeded:
The first and principal assignment of error in the decree appealed from in this case is, that credit was not therein given to the trustee, Coltrane, in the settlement of his account as trustee, for eight hundred and ten dollars, claimed by him as having been invested in 1863 or 1864 in Confederate bonds on account of the trust. This is indeed the only assignment of error on account of which, it seems, that an appeal in this case was allowed, though all the assignments of error made in the petition, or ore tenus or in writing, in the argument, will be noticed in this opinion.
I do not think there is any error in the decree in respect to the said first and principal assignment of error. The investment of $810 therein mentioned was made out of money the largest part of which the trustee, Coltrane, admits he collected in Confederate money, in the spring of 1863, from C. F. Worrell. He says there were some small amounts collected from other parties, but he cannot state from whom.
Now, was he warranted by law in making such collection when and under the circumstances he did?
I say no, according to well-settled principles of law. In the spring of 1863 Confederate money was very greatly depreciated, and a fiduciary had not then a right to receive Confederate money at par in discharge of a well-secured specie debt, except under peculiar and extraordinary circumstances. The debt on account of which the said collection was made was certainly a well-secured specie debt when such collection was made, and was most likely so to continue. Coltrane himself proves that C. W. Worrell, the debtor from whom the collection was made, " was and has been solvent." But the debt due by Worrell was also secured by a lien on real estate, which was duly recorded. It was a part of the purchase money of land sold and conveyed by William Kyle, trustee for Amos and Darthula Worrell, by deed dated the 23d of February, 1858, and duly recorded on the same day in the clerk's office of the county court of Carroll, in which county the said land was situate. In the said deed a lien was expressly reserved on the said land for the purchase money. It is not pretended that the land was not ample security for the purchase money. Here, then, was a double security of this debt, the solvency of the debtor personally, and the specific lien reserved upon the land. Were there any peculiar and extraordinary circumstances in existence which warranted the collection of the said debt or any part of it in Confederate money at par, depreciated in value as it was in the spring of 1863? Certainly not. What occasion had the trustee, in the execution of his trust, for the money, or any part of it, at that time? None whatever. The only person in the world who had any interest in it was the beneficiary in the trust, who had removed to the state of Missouri before the war, and continued since to reside there. No payment had been made to her by the trustee since the war commenced, and there would be no power to make such payment until the war was ended, Virginia and Missouri being on opposite sides of the belligerent line. No one could tell in the spring of 1863 when the war would be at an end. That was about the middle of the war. It was the plain duty of this trustee to continue to hold, as he had a right to do and easily might have done, this well and permanently secured specie debt until the end of the war, instead of collecting it or any part of it in the spring of 1863 in greatly depreciated Confederate currency at par, only to invest the same in Confederate bonds, no less depreciated in value below their nominal amount. In regard to the small amounts said by Coltrane to have been collected from other parties, he could not state from whom, the matter is altogether too vague to be of any account. Most, if not all, of the bonds and notes placed in his hands as trustee were doubtless good debts. He says in his answer, that " believing those amounts as secure as he could make them, he deemed it unnecessary to collect and loan the same to others, perhaps not as responsible."
These bonds and notes were placed in his hands as trustee on the 27th of June, 1857. They were all due except the three bonds of C. F. Worrell, on the 30th of October, 1857, three and a half years before the war. The trustee had ample time to have collected them before the war, if such collection had been necessary or proper. If he did not do so, it was no doubt because he considered them perfectly good. The bonds of Worrell, we have seen, were not only good by reason of the general solvency of the debtor, but also because they were secured by a lien on real estate; and they amounted to more than double the amount of all the other bonds put together. It may well be assumed in this controversy, therefore, that all of these bonds were good and solvent and well secured, and that the trustee had no power, in the spring of 1863, to receive payment of any of them in depreciated Confederate currency at par.
I am, therefore, clearly of opinion, that there is no error in the decree in respect to the matter of the first assignment of error, and that this position is fully sustained by the cases cited on the subject by the counsel for the appellee. The following are the cases, or some of them, which were so cited: Williams' adm'r v. Skinker, 25 Gratt. 507, 518, 519 and 524; Crickard's ex'or v. Crickard's legatees, Id. 410, 418, 219, 424 and 425; Moss v. Moorman, 24 Id. 97; Hannah v. Boyd, 25 Gratt. 692, 701; Ammon's adm'r v. Wolfe, & c., 26 Id. 621; Walker v. Beauchler, 27 Id. 511.
The second assignment of error in the decree (which, however, is not made in the petition for an appeal in the case), is that the appellant is charged with interest during the war.
In the ordinary case of debtor and creditor, where they reside on the same side of a belligerent line, the debt bears interest during the war, which is recoverable, notwithstanding the act of assembly on the subject. But where they reside on different sides of the belligerent line, interest on the debt during the war is not recoverable; and this is not the effect of the said act of assembly, but of principles of law which have been long since recognized and established. This, however, is not an ordinary case of debtor and creditor, but a case in which a trustee holds bonds and notes in his hands for the benefit of a cestui que trust. Can such a trustee avoid liability to his cestui que trust for interest on the trust fund during the war, when he has already collected such interest or may collect it hereafter?
It does not appear that the debtors to the trustee for the trust fund, or any part of it, ever have refused or will refuse to pay such interest to the trustee. The fact is, those debtors and the trustee always, during the war, lived on the same side of the belligerent line, and there was always on that side a hand to receive payment of interest from them. A trustee cannot derive a profit from the trust fund without rendering any equivalent therefor. He is bound to execute the trust for the benefit of the cestui que trust, whether the latter live at home or abroad, or the trust is to be executed in peace or in war. If the trust fund be perfectly secure, and bearing interest at the beginning of the war, he cannot voluntarily change it so as to make it insecure and bear no interest. I am therefore of opinion that there is no error in the decree in respect to the matter of the second assignment of error.
The third assignment of error in the decree is that the accounts should have been stated on the principle of the cases of Granberry v. Granberry, 1 Wash. 246, and Burwell's ex'or v. Anderson, adm'r, 3 Leigh 348. (And this assignment of error was made for the first time in the argument.)
Without stating what the principle of those cases is, I think it very clear that the account stated by the commissioner in this case is stated on a principle which can do no injustice to the trustee who was bound by the express terms of the trust to apply the interest and so much as might be sufficient of the principal of the trust fund in his hands or under his control, to the sole and separate use of the said Darthula Worrell. She has not received from the trustee, as he admits, the whole amount of the interest on the trust fund, which she was certainly entitled to receive, and he has not been charged with any interest upon interest in the mode of stating the account.
The fourth and last assignment of error in the decree is, that " the direction for the removal of the fund to Missouri was erroneous. The trustee appointed in Missouri was not legally appointed, and is not entitled to receive the fund."
I think the decree is not erroneous in this respect. The law under which this proceeding for the appoinment of a trustee in and the transfer of a trust fund to another state, is in the Code, ch. 125, §§ 6 and 7, p. 936, and is in these words:
" 6. When any personal estate in this state is vested in a trustee resident therein, and those having the beneficial interest in the said estate are non-residents of this state, the circuit court of the county or corporation in which the said trustee may reside may, on a petition or a bill in equity, filed for that purpose, order him or his personal representative to pay, transfer and deliver the said estate, or any part of it, to a non-resident trustee appointed by some court of record in the state in which the said beneficiaries reside.
7. No such order shall be made in the case of a petition until notice of the application shall have been given to all persons interested in the trust estate, nor until the court shall be satisfied, by authentic documentary evidence, that the non-resident trustee appointed as aforesaid has given bond, with sufficient security, for the faithful execution of the trust, nor until it is satisfied that the payment and removal of such estate out of the state will not prejudice the right of any person interested or to become interested therein."
The proceedings in this case for the appointment of a trustee in the state of Missouri are very formal, and there seems to be no defect therein, except that there is no certificate of " the judge of the circuit court of Clinton county, Missouri," added to the record of that court, attested by the clerk thereof, with the seal of the court annexed, which record is filed as an exhibit in this case. See Code, ch. 172, § 15, p. 1108. But there was no exception or objection to the said exhibit on that ground or any other, either in any of the answers or other proceedings in the case in the court below, nor until the said fifth assignment of error was made to the said decree. I think it was then too late to make the objection for the first time, and that the trustee in Missouri must be considered, as no doubt he was in fact, duly appointed.
The case comes within the category of cases to which the statute applies, authorizing a transfer of property of a cestui que trust to another state. " When any personal estate in this state is vested in a trustee resident therein, and those having the beneficial interest in the said estate are non-residents of this state," is the language of the statute.
Now, Mrs. Worrell is the only person who can be said to have any beneficial interest in the said estate, in the meaning of the statute. During her life she is certainly entitled to the interest on the subject, and so much of the principal as may be necessary for her comfortable maintenance; " and full power is given to her, if she should die before her husband, to dispose of the trust fund by any last will and testament by her to be made and executed as the laws of Virginia direct wills of personal estate to be executed; and in case she should survive her husband, then the funds of said trustee are to be paid over to said Darthula, to be disposed of and used by her as her absolute property." After this full conveyance of the subject to her or for her use, the deed thus proceeds: " And the said Amos Worrell doth hereby relinquish and release all claim to the said fund for himself and all persons claiming under him, and doth agree that the full control and use thereof shall be in the said Darthula, as herein provided for." She is certainly entitled to the fund absolutely, subject only, if to anything, to one possible contingency, to-wit: the contingency of her dying before her husband without having disposed of the trust fund by last will and testament as aforesaid. What would become of the fund in that single contingency it is unnecessary here to decide. But it is a contingency entirely within her power and control, which may at any time easily be exercised by her, and has no doubt already been so exercised. It cannot be regarded by the husband as of any value, and he has interposed no objection, on that or any other ground, to the removal of the trust fund to the state wherein the beneficiary resides. Can the trustee in Virginia interpose any such objection? The only substantial beneficiary having been for many years a resident of the state of Missouri, and intending permanently to reside there, ought not the trust fund to be there also? The record shows how inconvenient has been her distant separation from the fund heretofore, how seldom and at what expense she has received any benefit from it, and how beneficial it would be to her to have it near at hand, while no person would be thereby injured.
Upon the whole, I am of opinion that there is no error in the decree, at least in substance, and that it ought to be affirmed, after being amended in the form of a draft which I have prepared, as a part of the foregoing opinion.
The other judges concurred in the opinion of Moncure, P.
The decree was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transacript of the record of the said decree and the arguments of counsel, is of the opinion, for reasons stated in writing and filed with the record, that the decree appealed from instead of being as it is, should, and it is accordingly adjudged, ordered and decreed, that it be so amended as to be in words and figures following, to-wit: The cause came on this day to be heard upon the bill of complaint, the exhibits filed, the several answers, the depositions of witnesses, the order and decree heretofore entered therein, the report of Commissioner Brown, and argument of counsel. And the court being of the opinion that the first statement of Commissioner Brown is the correct one in this case, with this exception, that the defendant, Ira B. Coltrane, should receive a credit for the amount of Confederate money paid in taxes in 1864 and 1865, at its par value instead of its scaled value, a further credit of $23.75, of date March 12, 1864, and $147 of date February 1st, 1865, being the difference between the par value of said amount and the scaled value allowed by the commissioner. And the court doth receive, adopt and confirm the first statement of said report with the amendment aforesaid. It is therefore adjudged, ordered and decreed that the complainant, Darthula Worrell, recover against the defendant, Ira B. Coltrane, the sum of $2,557.54, principal, with legal interest thereon from the 20th day of April, 1875, and $495.28, interest, subject to a credit of $23.75, of date March 12th, 1864, and $147, of date February 11th, 1865, to be applied as a credit on the last mentioned amount, to-wit: the $495.28, interest.
And the court being satisfied by authentic documentary evidence in the cause that Granville M. Hiatt, of the county of Clinton, in the state of Missouri, in which the said Darthula Worrell resides, has been duly appointed by the circuit court of said county to receive and hold as trustee the fund now held by the said Ira B. Coltrane, as trustee, for the benefit of the said Darthula Worrell, under the deed of trust in the proceedings mentioned, and also that the said Granville M. Hiatt, the now non-resident trustee appointed as aforesaid, has given bond with sufficient security for the faithful execution of the trust, and that the payment and removal of the said fund out of the state will not prejudice the right of any person interested or to become interested therein, it is therefore adjudged, ordered and decreed that the said trust fund now held by the said Coltrane as aforesaid, being the sums of money and interest hereinbefore recovered against him by the said Darthula Worrell as aforesaid, be paid, transferred and delivered to the said Hiatt, the non-resident trustee aforesaid, to be held and disposed of by him as such according to the terms of the deed of trust and the condition of the bond aforesaid. And to enforce the payment of the said sums of money and interest to him, he may sue out executions for the same on this decree and in the name of the said Darthula Worrell for his use as such trustee. And it is further adjudged, ordered and decreed that the said Darthula Worrell recover against the said Ira B. Coltrane her costs by her expended in the prosecution of this suit; and liberty is reserved to her, or her non-resident trustee for her benefit, to apply to this court in this cause hereafter, by motion or petition, for any further order or decree which may be necessary to carry into effect the decree.
And it is further adjudged, ordered and decreed that the said decree appealed from, as hereinbefore amended, be affirmed, and that the appellee, Darthula Worrell, recover against the appellant damages according to law and her costs by her about her decree in the appeal expended; which is ordered to be certified to the circuit court of Carroll county.
DECREE AMENDED AND AFFIRMED.