Loomis, J.
This is a bill in equity in which the petitioners, who are grandchildren of James M. Goodwin, late of Hartford, deceased, and children of his deceased son, Henry W. Goodwin, pray for an account of the property which the respondent has received as trustee for .them under the last will and testament of the said James M. Goodwin, and of the investments, rents, income and profits thereof, and the charges against the same, and for the payment to the petitioners of the balance which may be found due to them from the respondent, upon such accounting, and also for general relief.
It appears from the report of the committee to whom the bill of the petitioners was referred, that on the 2d day of February, 1870, the said James M. Goodwin made his last will and testament, by which, after directing his personal estate, except his stocks and bonds, to be sold, and the avails added to the general fund of his estate, and after providing for the payment of his debts and funeral expenses by his executor, and making bequests to his sisters, Mary G. Spencer and H. G. Wells, of five hundred dollars each, to his grandson, Frederick Goodwin, of one thousand dollars, and to his sister, Roxanna G. Wells, of four hundred dollars a year in four quarterly payments during her natural life, he directed that all the residue of his estate, except the interest he had in certain real estate in West Hartford, then occupied by his son, Henry W. Goodwin, including such sums as, at the time of his decease, his said son should be owing to him for money lent since May 1st, 1868, or paid for him on liabilities assumed by the testator since that time, or that should be paid out of [176]*176the estate of the testator for liabilities assumed by him since that time for the said Henry, should be divided into fifty equal parts, and disposed of the same in the following manner:
First. He gave to his daughter, Mary Brainard, the wife of the respondent, ten parts.'
Second. He gave the use, income, interest and improvement of twenty parts to his son, James M. Goodwin, Jr., during his natural life, and at the decease of the said James he directed the same to be divided equally among the said James’s children.
Third. The twenty parts remaining, and all the interest which the testator should have at his decease in the West Hartford real estate, and all such sums as lie should have lent to or paid for his said son Henry, in claims or liabilities assumed since May 1st, 1868, and such sums as his estate should have to pay for liabilities assumed by him since that time, he gave to the respondent, upon the following trusts: That the said trustee might, at his discretion, sell all or any part of the estate so given him in trust and convey the same by good and sufficient deeds or otherwise, safely invest the avails of such sales, collect the income, and pay over the use, incomeand rent thereof, from time to time, at his discretion, to the said Henry W. Goodwin during his natural life, for the comfort and support of himself and family, and at the said Henry’s decease, to pay and deliver over the same to his children in equal portions.
The testator then appointed the respondent executor of the will, and, on the 30th of March, 1870, died. The will was duly proved and approved by the court of probate on the 14th of April, 1870. The respondent accepted the trust of executor; and the court of probate limited six months for the presentation to him of claims against the testator’s estate, which limitation expired on the 14th of October, 1870. The court of probate also allowed to the respondent, as executor,, twelve months from the 14th of April, 1870, to settle the estate.
On the 18th of April, 1871, the respondent exhibited to the court of probate an account of his administration to that date, [177]*177which the court accepted; and on the 22d of June, 1872, he exhibited a supplementary account made up to the first of April, 1872, and showing a balance in favor of the estate of $74,603.98, which was accepted and allowed by the court of probate on the 22d of June, 1872. From the decree by which that account was so accepted and allowed, James M. Goodwin, Jr., appealed to the Superior Court. Reasons of appeal were duly filed, and a committee was appointed to find and report to the court the facts. The committee heard the parties with their evidence, and on the 20th of February, 1874, submitted his report to the court. Remonstrances against the acceptance of the report were filed by both appellant and appellee, and at the September term, 1874, the Superior Court heard the parties, and upon such hearing overruled both remonstrances, accepted the report of the committee, and adjudged and decreed that two items in the administration account allowed by the court of probate to the respondent—one of $1,725, which was a claim of the respondent for office rent, fuel, lights, &c., the other of $2,715, which was a claim of the respondent and his wife for supplies furnished, expenses incurred, and services rendered—were not due, and directed the court of probate to disallow them. The Superior Court also adjudged and decreed that the costs of the appeal, amounting to $282.97, should be paid by the respondent out of the testator’s estate. But a copy of that decree was not presented to the court of probate until on or about the 22d of May, 1877, or more than a month after the present suit was commenced; and the court of probate, at the date of the report of the committee to whom the petitioners’ bill was referred, had not corrected the administration account in accordance with that decree. That omission on the part of the court of probate cannot, however, affect the rights or liabilities of either of the parties. The apparent balance, therefore, in the hands of the respondent as executor of the will of James M. Goodwin, on the first day of April, 1872, was $78,761.75, instead of $74,603.98, as stated in the account accepted and allowed by the court of probate. The property from which that balance was made up consisted of [178]*178one hundred and ten shares of stock of the .¿Etna Eire Insurance Company, six shares of stock of the Phoenix National Bank, twelve shares of stock of the Connecticut River Company, $5,000 United States 5-20 bonds, one hundred and twenty acres of land in the state of Wisconsin, and $42,601.07 cash, including notes of the respondent.
Henry W. Goodwin, the father of the petitioners, died on the 14th of November, 1876.
The committee reports that of the items of property and cash above enumerated—less the sum due to the respondent for services since April, 1877, which should be estimated at one hundred and twenty-five dollars per annum—two-fifths belong to the petitioners under the terms of the will of their grandfather; and he expresses the opinion that it should be delivered and paid over to them by the respondent. And it was urged on the argument in behalf of the petitioners that it was the duty of the respondent, as executor, as soon as the appeal of James M. Goodwin, Jr., was determined in the Superior Court, to have caused a division of the property; and that as he has neglected and refused to perform that duty, he should be required, b'y a decree of the Superior Court,.to pay to the petitioners two-fifths of the value of the estate in his hands as executor, in money. But the opinion expressed by the committee and the claim urged by the petitioners upon this part of the case, are opposed, not only to the declared intentions of the testator, but to the law providing for the distribution of testate estates.
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Loomis, J.
This is a bill in equity in which the petitioners, who are grandchildren of James M. Goodwin, late of Hartford, deceased, and children of his deceased son, Henry W. Goodwin, pray for an account of the property which the respondent has received as trustee for .them under the last will and testament of the said James M. Goodwin, and of the investments, rents, income and profits thereof, and the charges against the same, and for the payment to the petitioners of the balance which may be found due to them from the respondent, upon such accounting, and also for general relief.
It appears from the report of the committee to whom the bill of the petitioners was referred, that on the 2d day of February, 1870, the said James M. Goodwin made his last will and testament, by which, after directing his personal estate, except his stocks and bonds, to be sold, and the avails added to the general fund of his estate, and after providing for the payment of his debts and funeral expenses by his executor, and making bequests to his sisters, Mary G. Spencer and H. G. Wells, of five hundred dollars each, to his grandson, Frederick Goodwin, of one thousand dollars, and to his sister, Roxanna G. Wells, of four hundred dollars a year in four quarterly payments during her natural life, he directed that all the residue of his estate, except the interest he had in certain real estate in West Hartford, then occupied by his son, Henry W. Goodwin, including such sums as, at the time of his decease, his said son should be owing to him for money lent since May 1st, 1868, or paid for him on liabilities assumed by the testator since that time, or that should be paid out of [176]*176the estate of the testator for liabilities assumed by him since that time for the said Henry, should be divided into fifty equal parts, and disposed of the same in the following manner:
First. He gave to his daughter, Mary Brainard, the wife of the respondent, ten parts.'
Second. He gave the use, income, interest and improvement of twenty parts to his son, James M. Goodwin, Jr., during his natural life, and at the decease of the said James he directed the same to be divided equally among the said James’s children.
Third. The twenty parts remaining, and all the interest which the testator should have at his decease in the West Hartford real estate, and all such sums as lie should have lent to or paid for his said son Henry, in claims or liabilities assumed since May 1st, 1868, and such sums as his estate should have to pay for liabilities assumed by him since that time, he gave to the respondent, upon the following trusts: That the said trustee might, at his discretion, sell all or any part of the estate so given him in trust and convey the same by good and sufficient deeds or otherwise, safely invest the avails of such sales, collect the income, and pay over the use, incomeand rent thereof, from time to time, at his discretion, to the said Henry W. Goodwin during his natural life, for the comfort and support of himself and family, and at the said Henry’s decease, to pay and deliver over the same to his children in equal portions.
The testator then appointed the respondent executor of the will, and, on the 30th of March, 1870, died. The will was duly proved and approved by the court of probate on the 14th of April, 1870. The respondent accepted the trust of executor; and the court of probate limited six months for the presentation to him of claims against the testator’s estate, which limitation expired on the 14th of October, 1870. The court of probate also allowed to the respondent, as executor,, twelve months from the 14th of April, 1870, to settle the estate.
On the 18th of April, 1871, the respondent exhibited to the court of probate an account of his administration to that date, [177]*177which the court accepted; and on the 22d of June, 1872, he exhibited a supplementary account made up to the first of April, 1872, and showing a balance in favor of the estate of $74,603.98, which was accepted and allowed by the court of probate on the 22d of June, 1872. From the decree by which that account was so accepted and allowed, James M. Goodwin, Jr., appealed to the Superior Court. Reasons of appeal were duly filed, and a committee was appointed to find and report to the court the facts. The committee heard the parties with their evidence, and on the 20th of February, 1874, submitted his report to the court. Remonstrances against the acceptance of the report were filed by both appellant and appellee, and at the September term, 1874, the Superior Court heard the parties, and upon such hearing overruled both remonstrances, accepted the report of the committee, and adjudged and decreed that two items in the administration account allowed by the court of probate to the respondent—one of $1,725, which was a claim of the respondent for office rent, fuel, lights, &c., the other of $2,715, which was a claim of the respondent and his wife for supplies furnished, expenses incurred, and services rendered—were not due, and directed the court of probate to disallow them. The Superior Court also adjudged and decreed that the costs of the appeal, amounting to $282.97, should be paid by the respondent out of the testator’s estate. But a copy of that decree was not presented to the court of probate until on or about the 22d of May, 1877, or more than a month after the present suit was commenced; and the court of probate, at the date of the report of the committee to whom the petitioners’ bill was referred, had not corrected the administration account in accordance with that decree. That omission on the part of the court of probate cannot, however, affect the rights or liabilities of either of the parties. The apparent balance, therefore, in the hands of the respondent as executor of the will of James M. Goodwin, on the first day of April, 1872, was $78,761.75, instead of $74,603.98, as stated in the account accepted and allowed by the court of probate. The property from which that balance was made up consisted of [178]*178one hundred and ten shares of stock of the .¿Etna Eire Insurance Company, six shares of stock of the Phoenix National Bank, twelve shares of stock of the Connecticut River Company, $5,000 United States 5-20 bonds, one hundred and twenty acres of land in the state of Wisconsin, and $42,601.07 cash, including notes of the respondent.
Henry W. Goodwin, the father of the petitioners, died on the 14th of November, 1876.
The committee reports that of the items of property and cash above enumerated—less the sum due to the respondent for services since April, 1877, which should be estimated at one hundred and twenty-five dollars per annum—two-fifths belong to the petitioners under the terms of the will of their grandfather; and he expresses the opinion that it should be delivered and paid over to them by the respondent. And it was urged on the argument in behalf of the petitioners that it was the duty of the respondent, as executor, as soon as the appeal of James M. Goodwin, Jr., was determined in the Superior Court, to have caused a division of the property; and that as he has neglected and refused to perform that duty, he should be required, b'y a decree of the Superior Court,.to pay to the petitioners two-fifths of the value of the estate in his hands as executor, in money. But the opinion expressed by the committee and the claim urged by the petitioners upon this part of the case, are opposed, not only to the declared intentions of the testator, but to the law providing for the distribution of testate estates. The will does, indeed, direct that the estate of the testator remaining after the payment of his funeral expenses, debts and legacies, should, with the exception of the West Hartford real estate, be divided into fifty equal parts, and that twenty of those parts should be held by the respondent as a trustee for the benefit of Henry W. Goodwin and his family during his life, and upon his death should be paid over and delivered'in equal portions to his children; and it appears from the report of the committee that no such division had been made on the first day of October, 1877, when that report was submitted to the Superior Court. But it is very clear that if the time had [179]*179then arrived for the making of such a division, the Superior Court has no jurisdiction to make it or to order it to be made by the respondent. That jurisdiction is conferred by law upon the court of probate. The statute conferring it is in these words:—“When a testator shall order an estate to be divided among two or more devisees or legatees without appointing any person to divide it, or if he appoint persons to divide it who shall refuse or be unable to do so, the court of probate shall appoint three disinterested persons to make the division; but if the devisees, legatees, or heirs shall be legally capable to act, and shall make a division, in writing, in the manner provided for the division of intestate estates, such division shall be valid.” Gen. Stat., tit. 18, chap. 11, § 16, page 371. It is equally clear that no obligation rested upon the respondent to ask the court of probate to order a division or to appoint distributors to make one, until the death of Rosanna G. Wells, to whom the bequest of four hundred dollars a year during her natural life Avas made by the will. The committee reports on the first of October, 1877, that Mrs. Wells was dead; but when she died, whether before or after this suit was commenced, he does not report. So that it does not appear from the record before us that the respondent was guilty of any neglect of duty, as executor, at or before the time when this suit was commenced, in omitting to take the steps provided by law for a division of the estate. The respondent was bound as executor to pay to Mrs. Wells four hundred dollars a year, in quarterly payments, during her natural life; and being so bound he had the right (there being no order of the court of probate to the contrary,) to retain the entire body of the estate, except the West Hartford property, in his hands and undiAÚded, until her death, to enable him to make the payments. He might, indeed, have retained a portion of the estate sufficient to yield an annual income of four hundred dollars, and have thus provided himself with the means required, and distributed the remainder. But he was under no legal obligation to do so, because he was not bound to take upon himself the risk of such a step. The will required a division of only that portion of the estate [180]*180which would remain after the funeral expenses, debts and legacies, including the legacy to Roxanna G. Wells, had been fully paid and satisfied. And. it is manifest that until the provision in favor of Mrs. Wells had been fully satisfied, neither the amount of the estate which would remain for distribution, nor the property of which it would consist, could have been ascertained.
But if the death of Mrs. Wells had occurred before this suit was commenced, the Superior Court would have no jurisdiction to decree the payment to the petitioners of their share of the estate in money, until a division of the estate has been made according to tbe provisions of the will and a reasonable time has elapsed for the conversion of the estate into money, nor until the respondent has refused or unreasonably neglected, after distribution, to pay or deliver to the petitioners their portion of the estate. The will gives to the respondent no authority, before distribution, to convert the stocks and bonds, of which a large portion of the estate consists, into money, but by implication forbids it. It would, therefore, be unreasonable and unjust, as well as repugnant to the provisions of the will and of the law, to decree the payment to the petitioners, before distribution, of their share of the estate in money. But even after distribution it would be necessary for the court, in passing such a decree, to look beyond the facts reported by the committee to ascertain the value of the petitioners’ share. For the respondent’s liability to the petitioners in that case would not be for two-fifths of the balance of $78,761.75, which appeared from the report to have been in the respondent’s hands on the first day of April, 1872, but would be for the value of two-fifths of the estate in his hands at the time of the distribution. Between those dates the' estate might have greatly depreciated in value without any fault on the part of the respondent. And if such was the fact, it would be highly inequitable to compel him to bear the loss occasioned by the depreciation. On the other hand, if the property appreciated in value during the period mentioned, the petitioners would be entitled to and should have the benefit of the appreciation.
[181]*181The West Hartford real estate stands upon different ground from the other property. That was devised to the respondent in trust for the benefit of Henry W. Goodwin during his natural life, with power to sell the same and invest the avails, and, upon the death of the said Henry, to pay and deliver the same in equal portions to his children. The respondent, in pursuance of the power so given him, sold that estate, and thereby assumed all the responsibilities of a trustee under the will in respect to it. He is, therefore, liable to acount for the 'same in this suit.
In behalf of the petitioners it is contended that the income of the twenty parts of the residue given to Henry W. Goodwin during his natural life, may be distinguished from the principal, so that the trust will attach to the former, if not to the latter.
But this court can not make such a distinction. The whole matter falls wholly within the jurisdiction of the probate court. It is not like the case of a definite annuity given by a will for which an action at law will lie, but is a gift of the income of a portion of the residue of the estate which clearly can not be ■ determined until a final settlement of the administration account. And although a legatee for life, for whose support the legacy was intended, might be entitled under the will to a proportion of the whole income, yet it is clear that the court of probate alone can determine the amount to be paid over and make an order for its payment. There is to be deducted from the gross income whatever account the executor has for current expenses as well as a reasonable allowance for his services, and this last item can be determined alone by the court of probate. It would also be reasonable and in fact necessary to the safety of the executor, that the net income should not be entirely paid out, but that some portion should be reserved to protect the executor against a possible failure of income another year, the annuity to Mrs. Wells being an absolute one which the executor would be bound to provide for. And the court of probate alone can determine what amount should be reserved for this purpose.
Where, as suggested in this case, the estate is ample, and [182]*182final distribution is likely to be delayed, while parties stand in pressing need of their portions, it is not unusual for courts of probate to decree a partial distribution. This might have been done here, either as to principal or income, and doubtless would have been done on application to that court.
The respondent excepts to the action of the committee in charging him with compound interest upon the avails of the sale of the West Hartford property. The question raised by this exception has been considered and determined by the courts of this country and of England in numerous cases; and although the decisions are not harmonious, there is a clear preponderance of opinion and authority in support of the doctrine that, where a trustee employs the trust moneys in trade or business for his own personal benefit and refuses to render an account of the profits he has made by such use of the money, he shall be charged with compound interest. 2 Kent’s Comm., 281; 2 Story Eq. Jur., § 1277; 2 Redf. on Wills, 881, 882; Perry on Trusts, § 671. Chancellor Kent states the rule in regard to interest upon trust funds to be, that where the trustee puts the trust money in trade, the cestui que trust will be entitled to take the profits of the trade, or compound interest where the trustee will not disclose the profits. “ So where he neglects to put the trust money at interest and for an unreasonable time suffers it to lie idle, or mingles it with his own, the court will charge him with simple interest, and in cases of gross delinquency with compound interest.” And he urges strong reasons in support of the doctrine. “ It appears to me,” he says, “ that authority, both foreign and domestic, and the reason of the thing, preponderate alike in favor of the allowance of compound interest under the limitations stated, and that the total abandonment of the rule would operate in many cases most unjustly as respects the rights of the cestui que trust, and would introduce a lax discipline that would be dangerous to the vigilant and faithful administration of trust estates. It would be tempting trustees to keep in hand, for their own speculation and profit, the interest moneys of others without interest, contrary to their duty. If the trustee might go on and trade with trust moneys [183]*183and make no account of the profits and without any other penalty than the payment of simple interest, without annual rests on the capital so corruptly perverted, the temptation to abuse would be irresistible.” 2 Kent’s Comm., 231, in note c. “ The object of this whole doctrine,” says Judge Story, “ is to compensate the cestui que trust, and to place him in the same situation as if the trustee had faithfully performed his own proper duty. It has even a larger and more comprehensive aim founded on public policy, which is to secure fidelity by removing temptation and by keeping alive a sense of personal interest and personal responsibility.” 2 Story Eq. Jur., § 1278.
The report of the committee shows that the avails of the sale of the West Hartford real estate were not invested by the respondent, as the provisions of the will required, but were mingled with his own money, deposited in bank to his individual credit and used by him in his business for his personal benefit and advantage. And when called upon to render an account of the use he had made of the money and the profits which had accrued to him therefrom, he was unable to do so, and never has rendered such an account. There was, therefore, no error in the action of the committee charging the respondent compound interest on the avails of the sale of the West Hartford real estate. The committee properly refused to allow to the respondent the sum of two thousand three hundred and seventy-eight dollars, sixty-one cents, which he had charged in his account against Henry W. Goodwin ; and another charge of seven hundred and seventy-two dollars, sixty-eight cents; because the effect of those charges, if allowed, would have been to enable the respondent to appropriate to the payment of a debt due to him from Henry W. Goodwin, moneys which, not having been applied to the support of the said Henry and his family in his life time, belonged, under the will of his father, to his children after his decease.
The committee erred in charging the respondent interest on a sum of nine thousand dollars, in his hands at the decease of the testator and belonging to his estate, prior to the 22d [184]*184day of June, 1872, when the respondent rendered his account as executor to the court of probate. It was not allowed by that court; and from the decree allowing the account Henry W. Goodwin took no appeal. James M. Goodwin, Jr., however, did take an appeal, and the committee who heard the appeal disallowed that item of interest, and reported his action in the matter to the Superior Court; and the report was by that court accepted. If Henry W. Goodwin or these .petitioners felt aggrieved by the order of the court of probate allowing the account of the respondent as executor, without the item of interest referred to, he or they should, within the time limited by law, have appealed to the Superior Court. That was their only remedy, the statute not having given to that court jurisdiction to settle administration accounts except upon appeal from the decrees of the court of probate.
The Superior Court is advised to pass a decree in accordance with the views herein expressed. As a decree in that form will not affect the rights or interests of James M. Goodwin, Jr., or of Mrs. Brainard, the wife of the respondent, there was no reason for making them parties to this suit as moved by the respondent.
In this opinion Park, C. J., and Carpenter, J., concurred; Pardee and Granger, Js., did not sit.