Mr. Chief Justice Shepard
delivered tbe opinion of tbe Court:
1. A preliminary question arises on tbe motion of tbe appellees to dismiss tbe appeal because of tbe failure of tbe appellants to file an appeal bond after tbe rendition of the final decree confirming the auditor’s report. This motion was made and argued at tbe October term, but tbe court was of the opinion that it should not then be decided, and postponed its further consideration until tbe hearing on tbe merits.
[592]*592It is not necessary to decide whether the first decree was of such finality in substance as to confer a right of appeal without special allowance of the same on application to this court. It is quite certain, however, that it was unnecessary, and that the defendants would have sustained no prejudice by postponing their appeal until a final decree after the auditor’s report.
Under former decisions this court has no power to set aside its rules relating to appeals, and to permit a bond to be filed in this court in lieu of one that should have been filed in the court below as prescribed in those rules. United States ex rel. Mulvihill v. Clabaugh, 21 App. D. C. 440, and cases cited.
Under the special circumstances of this case, however, we have concluded, though not without considerable doubt, that the appeal bond of October 29, 1902, when taken in connection with the stipulation then entered into, is sufficient to sustain the entire appeal. The merits of the controversy were substantially determined by the first decree entered. Nothing remained thereafter but to take the account. The agreement contemplated but one record, and one hearing that should be on all points, and it is fair to presume, considering all of the conditions of the case and the fact that the executors were under bond for the preservation of the estate, that the bond was considered ample for the purposes of the appeal.
2. The first assignment of error is that the bill should have been dismissed because of a fatal variance between the allegations thereof and the proofs.
The contention is that the primary object of the bill is to impress the fund in the hands of the defendants with a trust, on the ground that the trust fund had been specifically traced into their possession as executors of Tracy. We cannot concur in this limitation of the object and scope of the bill. In our opinion its allegations are sufficient to warrant the consideration of all the evidence and the entry of the decree in accordance therewith.
3. We have no doubt of the jurisdiction of a court of equity in this case. The relations between Tracy and Silas H. Turner, even, were not those of debtor and creditor merely, at the time of the delivery by the former to the latter of the list of notes held [593]*593for collection and reinvestment of the proceeds. The notes were so indorsed that Tracy could collect, not only interest, but principal also, and reinvest the same; and before Silas Turner’s death it appears that he had invested some of the money in land the title to which was in his own name. While Silas Turner might have had a remedy at law against Tracy for the proceeds of the fund, we are not prepared to say that he would not have had a right to resort to equity for a complete accounting and the recovery of the proceeds and profits of the fund when ascertained thereby had a settlement been refused him. However this may be, the relations between Tracy and the complainants, as legatees of Silas H. Turner, were those of trustees and cestuis que trust. By the terms of the will he was expressly charged with the distribution of the fund in his possession among the four complainants. McKee v. Lamon, 159 U. S. 317, 322, 40 L. ed. 165, 167, 16 Sup. Ct. Rep. 11; Clews v. Jamieson, 182 U. S. 461, 479, 480, 45 L. ed. 1183, 1192, 1193, 21 Sup. Ct. Rep. 845, and cases cited.
Moreover, part of the fund, as we have seen, had been invested in lands along with Tracy’s own money, the title to which was in his name. His correspondence with Erie Turner, and occasional payments to him, and the recitals of the paper prepared for his executors, show that Tracy regarded himself as a trustee of the complainants in respect of that part of the fund. And, without regard to his right to turn over a part of the fund to Thomas M. Turner, the proof shows that he retained from him about $6,000 of the original fund to which the complainants were entitled.
4. There is no support for the contention that Tracy was relieved of any part of his responsibility to the complainants by the payment to Thomas M. Turner, and the receipt therefor executed by the latter as natural tutor and agent of his minor children. It is not pretended that there was any authority for the receipt of the fund either under the laws of Virginia, where Silas H. Turner lived and died, and where his will was probated, or under the laws of the District of Columbia, where Tracy resided and where the fund was deposited. Even if resort could be had to the law of Louisiana, where the complainants then lived, we [594]*594find nothing in the articles of the Code of that State, which have been brought to our attention, that empowered, their father to receive the fund as their tutor, -guardian, or agent.
5. There being no doubt of the right of the infants Ashby and Lunette Turner to recover their interest in the trust fund, it remains to inquire whether the adults Erie and Wilmer are barred by reason of their laches.
"Under the circumstances it may be questioned whether the bar of laches can be claimed at all on behalf of Philip A. Tracy, who died in July, 1898, because of any express repudiation of his trust brought directly to the knowledge of these complainants within a proper time before his death.
But passing that by, we are clearly of the opinion that there has been no such laches on the part of Wilmer Turner as would justify the denial of her recovery of her part of the fund.
As was said in Pryor v. McIntire, 7 App. D. C. 417, 430: “The familiar maxim that ‘equity aids the vigilant’ is a typical doctrine of equity jurisprudence, and in its application best illustrates the beneficent spirit of its administration. The rule is neither arbitrary nor technical, but capable of rigid contraction on the one hand and of wide expansion on the other, in the sound discretion of the chancellor, according to the special circumstances of each particular case. The idea is well expressed by Mr. Justice Brewer in the following words: ‘The length of time during which the party neglects the assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant to the rights such, that it would be inequitable to permit the plaintiff to now assert them.’ Halstead v. Grinnan, 152 U. S. 412, 416, 38 L. ed. 495, 496, 14 Sup. Ct. Rep. 641.” See also McIntire v. Pryor,
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Mr. Chief Justice Shepard
delivered tbe opinion of tbe Court:
1. A preliminary question arises on tbe motion of tbe appellees to dismiss tbe appeal because of tbe failure of tbe appellants to file an appeal bond after tbe rendition of the final decree confirming the auditor’s report. This motion was made and argued at tbe October term, but tbe court was of the opinion that it should not then be decided, and postponed its further consideration until tbe hearing on tbe merits.
[592]*592It is not necessary to decide whether the first decree was of such finality in substance as to confer a right of appeal without special allowance of the same on application to this court. It is quite certain, however, that it was unnecessary, and that the defendants would have sustained no prejudice by postponing their appeal until a final decree after the auditor’s report.
Under former decisions this court has no power to set aside its rules relating to appeals, and to permit a bond to be filed in this court in lieu of one that should have been filed in the court below as prescribed in those rules. United States ex rel. Mulvihill v. Clabaugh, 21 App. D. C. 440, and cases cited.
Under the special circumstances of this case, however, we have concluded, though not without considerable doubt, that the appeal bond of October 29, 1902, when taken in connection with the stipulation then entered into, is sufficient to sustain the entire appeal. The merits of the controversy were substantially determined by the first decree entered. Nothing remained thereafter but to take the account. The agreement contemplated but one record, and one hearing that should be on all points, and it is fair to presume, considering all of the conditions of the case and the fact that the executors were under bond for the preservation of the estate, that the bond was considered ample for the purposes of the appeal.
2. The first assignment of error is that the bill should have been dismissed because of a fatal variance between the allegations thereof and the proofs.
The contention is that the primary object of the bill is to impress the fund in the hands of the defendants with a trust, on the ground that the trust fund had been specifically traced into their possession as executors of Tracy. We cannot concur in this limitation of the object and scope of the bill. In our opinion its allegations are sufficient to warrant the consideration of all the evidence and the entry of the decree in accordance therewith.
3. We have no doubt of the jurisdiction of a court of equity in this case. The relations between Tracy and Silas H. Turner, even, were not those of debtor and creditor merely, at the time of the delivery by the former to the latter of the list of notes held [593]*593for collection and reinvestment of the proceeds. The notes were so indorsed that Tracy could collect, not only interest, but principal also, and reinvest the same; and before Silas Turner’s death it appears that he had invested some of the money in land the title to which was in his own name. While Silas Turner might have had a remedy at law against Tracy for the proceeds of the fund, we are not prepared to say that he would not have had a right to resort to equity for a complete accounting and the recovery of the proceeds and profits of the fund when ascertained thereby had a settlement been refused him. However this may be, the relations between Tracy and the complainants, as legatees of Silas H. Turner, were those of trustees and cestuis que trust. By the terms of the will he was expressly charged with the distribution of the fund in his possession among the four complainants. McKee v. Lamon, 159 U. S. 317, 322, 40 L. ed. 165, 167, 16 Sup. Ct. Rep. 11; Clews v. Jamieson, 182 U. S. 461, 479, 480, 45 L. ed. 1183, 1192, 1193, 21 Sup. Ct. Rep. 845, and cases cited.
Moreover, part of the fund, as we have seen, had been invested in lands along with Tracy’s own money, the title to which was in his name. His correspondence with Erie Turner, and occasional payments to him, and the recitals of the paper prepared for his executors, show that Tracy regarded himself as a trustee of the complainants in respect of that part of the fund. And, without regard to his right to turn over a part of the fund to Thomas M. Turner, the proof shows that he retained from him about $6,000 of the original fund to which the complainants were entitled.
4. There is no support for the contention that Tracy was relieved of any part of his responsibility to the complainants by the payment to Thomas M. Turner, and the receipt therefor executed by the latter as natural tutor and agent of his minor children. It is not pretended that there was any authority for the receipt of the fund either under the laws of Virginia, where Silas H. Turner lived and died, and where his will was probated, or under the laws of the District of Columbia, where Tracy resided and where the fund was deposited. Even if resort could be had to the law of Louisiana, where the complainants then lived, we [594]*594find nothing in the articles of the Code of that State, which have been brought to our attention, that empowered, their father to receive the fund as their tutor, -guardian, or agent.
5. There being no doubt of the right of the infants Ashby and Lunette Turner to recover their interest in the trust fund, it remains to inquire whether the adults Erie and Wilmer are barred by reason of their laches.
"Under the circumstances it may be questioned whether the bar of laches can be claimed at all on behalf of Philip A. Tracy, who died in July, 1898, because of any express repudiation of his trust brought directly to the knowledge of these complainants within a proper time before his death.
But passing that by, we are clearly of the opinion that there has been no such laches on the part of Wilmer Turner as would justify the denial of her recovery of her part of the fund.
As was said in Pryor v. McIntire, 7 App. D. C. 417, 430: “The familiar maxim that ‘equity aids the vigilant’ is a typical doctrine of equity jurisprudence, and in its application best illustrates the beneficent spirit of its administration. The rule is neither arbitrary nor technical, but capable of rigid contraction on the one hand and of wide expansion on the other, in the sound discretion of the chancellor, according to the special circumstances of each particular case. The idea is well expressed by Mr. Justice Brewer in the following words: ‘The length of time during which the party neglects the assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant to the rights such, that it would be inequitable to permit the plaintiff to now assert them.’ Halstead v. Grinnan, 152 U. S. 412, 416, 38 L. ed. 495, 496, 14 Sup. Ct. Rep. 641.” See also McIntire v. Pryor, 173 U. S. 38, 53, 43 L. ed. 606, 611, 19 Sup. Ct. Rep. 352; Townsend v. Vanderwerker, 160 U. S. 171, 186, 40 L. ed. 383, 388, 16 Sup. Ct. Rep. 258.
Applying these principles to the evidence relating to Erie H. [595]*595Turner, we are of opinion, also, that the defense of laches is not maintainable as to him. The testimony shows that, until a short time before the suit was brought, he had no definite information of the character and amount of the fund in which he had an interest, or of Tracy’s misfeasance. Granting that his information was .sufficient, under ordinary circumstances, to put him upon inquiry that might have led to full knowledge, we find enough in the relations between him and Tracy, and in the conduct of the latter, as shown in his letters and the payment of small sums of money, from time to time, to reasonably excuse his failure to prosecute that inquiry. Nor has the death of Tracy raised up any special equity on behalf of his estate. No prejudice has accrued therefrom through the loss of any source of material testimony.
6. We find no error in the allowance by the auditor, and its confirmation by the decree, of interest upon, the fund in Tracy’s hands from November 30, 1888, when he violated his trust by paying the bulk of the fund to Thomas M. Turner, and retaining the remainder, about $0,000, and using it for his own benefit.
7. We are of the opinion that the assignment of error founded on the refusal of the court to sustain the exception to that part of the auditor’s report denying the credit of $1,200 upon the portion of Erie H. Turner is well taken. This money was paid to Erie Turner by Thomas M. Turner, in the city of Washington, April 10, 1891, at which time also he received the two notes with which the auditor has charged him. He plaims that this was in settlement of a debt due by Thomas M. Turner to him, on account of a small sum of money belonging to him when a boy, which Thomas M. Turner had in his possession, and of an interest in two crops of wheat raised by him on the Texas farm in 1890 and in 1891. The testimony relating to this is not entirely satisfactory, but passing that, we think it is a proper credit in favor of Tracy, because it is clear that the payment was made with money and notes derived from the fund. Thomas NT. Turner had no money of his own at the time, and rarely had any at any other time, except that derived from the notes surrendered to him by Tracy in September, 1888.
[596]*596For the same reason that the amount of the two notes was charged to him in the account, we think that this money, derived from the same source, should have been charged to him therein also.
The final decree having been found to be correct in general, will be modified so as to charge the interest of Erie H. Turner with the said sum of $1,200 as of the date of its receipt by him; and as so modified will be affirmed with costs. It is so ordered.
Modified, and affirmed.