Orr v. St. Louis Union Trust Co.

236 S.W. 642, 291 Mo. 383, 1922 Mo. LEXIS 238

• Court: Supreme Court of Missouri
• Decided: January 11, 1922
• Status: Published

Opinions

DAVID E. BLAIR, J.

This is an action seeking the construction of the will of James 0. Ghio, deceased, and the establishment of a trust as to a portion of his estate.

In the amended petition on which the cause was tried below Rebecca M. Ghio was named as plaintiff and all the other parties to the case were named as defendants. The trial court found .for the defendants on both counts of the petition and dismissed the bill, and Mrs.- Ghio appealed. Since the appeal was taken the death of Mrs. Ghio on December 11, 1920, has been suggested, and the cause was revived in the name of her executor, Isaac H. Orr, Said executor has duly entered his appearance herein and has been substituted as appellant. On January 24, 1921, the parties hereto filed their stipulation -showing a state of facts upon which they have agreed that Icertain original defendants and heretofore respondents ^may be permitted to withdraw as respondents in this court and be made co-appellants with said Issac H. Orr, •executor. Such substitution is ordered made in accordance with that stipulation.

The parties to the case are now arrayed as follows: Isaac IT. Orr, executor of the estate of Rebecca M. Ghio, deceased, Elizabeth McMenamy, John B. Ghio, Olivia M. Dunn and J. C. Martin Ghio (children of Mrs. Ghio) are appellants, and St. Louis Union Trust Company (hereinafter referred to as Trust Company) and Joseph A. McMenamy, Freeland J. Dunn, Elsie K. Ghio and Mathil-da C. Ghio (the husbands and wives of the respective children) and Evelyn Garth McMenamy, Adrian Mc-Menamy, Walter Bowles McMenamy, Mary Renee Ghio, Rodes Garth Dunn, Virginia Lee Dunn and Mary Louise Ghio (grandchildren of James C. and Rebecca Ghio) are respondents. James C. Ghio will be hereinafter referred to as testator.

Testator and Rebecca M. Grhio were man and wife and lived for many years in St. Louis County at “ Tran-quilla,” their country home. Testator was a man of wealth and provided for his family accordingly and the country home was splendidly maintained and members of his family were permitted to travel extensively. Much of his wealth was inherited. The value of his estate does not appear. Two sons and two daughters were born of the marriage between testator and his wife, and survived testator.

Mrs. Grhio inherited large sums of money from the estates of her father and a half brother in Germany. The proceeds of these estates were remitted to her from time to time between 1892 and 1906 by one Bruhn, her attorney in Germany. It was contended by-Mrs Ghio that these remittances amounted to $104,500. The proof of the exact amount rested in letters from said Bruhn. These letters were not admitted in evidence by the trial judge. From proof of statements and admissions of testator it appears that a total sum of about $100,000 was so received. Testimony of the children of testator tends to show that as these remittances were received Mrs. Ghio turned them over to testator for investment on her account, and it was her contention, and is now the contention of her executor, that testator received these funds from her as trustee of an express trust.

Testator died February 2, 1914, and left a will by which he made certain specific bequests, and -devised and bequeathed the residue of his estate to the St. Louis Union Trust Company of the City of St. Louis in trust. The provisions of said will, so far as necessary to an understanding of the case, are as follows:

“Fourth. I hereby give, devise and bequeath all the rest and residue of my property, of every kind and character, and wheresoever situated, to the St. Louis Union Trust Company, as trustee, in trust, and upon, to and for the uses, purposes and trust hereinafter declared; and I hereby authorize and empower said trustee to invest, reinvest and make changes of investments of the principal of the trust estate hereby created, and to make investments thereof in real and personal estate, as it shall deem for the best interests; of said trust estate, so as to derive income therefrom and thereon. In making sales, or. leases for longer periods than ten years, of real estate, I wish said trustee to consult my wife and son John B. Ohio, if both are living, or the survivor of them after the death of one, and to make such sales or leases with their written consent, which written consent may he by their joim ing in conveyance or lease, as the case may he, or in and by a separate instrument attached to and made part of 'such conveyance or lease, respectively. Said trustee shall pay to my beloved wife, Rebecca Margaritta Ohio, the whole of the net income from said trust estate, so long as she lives; after her death, in equal shares, to my children, so long as my children, or any of them, remain alive. If any of my children die during the continuance of this trust, leaving a child or children them surviving, his or her child or children, respectively, shall take the parent’s place and share in equal parts. This trust shall continue for the full term of the life of my said wife and of the last survivor of my children and pro tanto during the minority of any child or children of any of my children who shall die leaving a child or children them surviving.

“Upon the death of my wife and the last survivor of my children, leaving a child, children, or other descendants of any of my children them surviving, the property then composing the trust estate, principal as well as interest, shall go to and become the property of such child, children, or other descendants of my children, in equal shares, share and share alike,- per stirpes and not per capita; this trust -to cease pro tanto as to the shares of any who are of age, and the, property composing such shares, principal as well as interest, to he paid to them freed from trust; the shares of any who are minors to ■remain in trust until, and such trust to cease pro tanto ■when and as each' child, or other descendant, of my said children becomes of full age, as to his or her share, and his or her share, principal and any unexpended income, to be paid over to him or her, freed from trust; the shares of any who are minors to remain in trust and be paid over to them, respectively, when and as they arrive at full age. During minority the trustee shall have the power to expend shares of income which any minor shall be entitled to as a beneficiary under this will, for the support and education of each minor. If such share of income for any minor is more than shall be necessary for the support and education of such minor, after supporting and edu-r eating him or her, the remainder of his or her share shall be accumulated for his or her benefit and paid over to him or her when and as he or she becomes of full age. Payments of income to every beneficiary hereunder of full age shall be made in equal monthly portions, so nearly as possible, and so’ nearly as practicable on the first day of each month. No advancement, nor any other payment, shall be made to any beneficiary except of net income, and that only after the same has been received by the trustee, and no beneficiary shall have power to anticipate such income, or to in any manner whatever incumber the same, sor the principal of any portion of the trust estate, and shall not have title to either income or principal except and only when and as the same shall have been actually received by the beneficiary from the trustee.

“Sixth. I hereby declare that the provision for my wife made in and by this will is to be in lien of dower and any and all other statutory rights whatsoever.

“Seventh. The trustee appointed in and by the fourth paragraph or item of this will, is hereby authorized, in lieu of paying her income thereon or therefrom, to permit my wife, if she shall so desire, to reside rent-free at my home place in St. Louis County, Missouri, and to assist her, as far as possible, in keeping and maintaining it in the same condition I would keep and maintain it if alive.”

By said will said Trust Company was also named as executor. Said will was filed for probate February 28, 1914. Letters testamentary were issued to said Trust 'Company as executor March 3, 1914, and notice of is- s'uance of such, letters was published within thirty days thereafter. Said Trust Company took charge of said estate as executor under the will and duly administered the same and made its final settlement and was discharged as such executor October 17, 1915. The estate has ever since been in the hands of said Trust Company as trustee under said will. No claim on account of alleged trust funds of Mrs. Ohio was presented against said estate prior to the final settlement in the probate court.

It appears that the gross income from said estate; net income and amounts paid to Mrs. G-hio from about May, 1914, to and including the year 1918, are as follows:

The par value of the personal property of testator’s estate at the time of the trial in May, 1919, was approximately $71,000. The actual value thereof was about $35,000. The bulk of said estate consists of real estate, a great portion of which is unproductive. Apparently some incumbrances existed. The expenses of the estate are very large in proportion to the income therefrom. Such expenses include general and special taxes, interest, insurance and repairs.

The case was tried on plaintiff’s amended petition, hereafter referred to as “petition.” Said petition is in two counts. The first count alleges the relations existing between testator and plaintiff and names the children and grandchildren, alleges the death of testator, sets out his will, describes the real and personal property constituting the estate, alleges that it was the intention of testator to cause to be paid to plaintiff the whole of the net income from the trust estate and that she should be provided from said estafe “with sufficient income and means so as to provide for her maintenance and livelihood in comfort and in accordance with the manner of living to which she has been accustomed as the wife of said deceased and in keeping with her station in life.” Said petition alleges that the trustee has failed to agree with plaintiff as to the amount she is entitled to receive from the estate for snch purpose and that it has failed and refused to pay her sufficient sums therefrom, “the said trustee maintaining that the plaintiff is entitled to receive only snch sums as it shall determine to be net proceeds from the income of said trust estate, and that no ■ sums sufficient for said purpose are earned by the principal of said trust estate. ’ ’

The prayer of said first count is for the construction of said will and a determination of the amount which plaintiff is entitled to receive from said estate and for a 'direction to the trustee to pay such amount to the plaintiff. ! ! ! | ; ¡

In the second count plaintiff adopts the first paragraph of the first count; alleges the receipt of sums exceeding $84,000 from the estates of her father and half--brother in Germany and the turning over of same to tes-itator “under an agreement entered into between her. and her said husband that the same would be received by him, preserved, cared for and invested for the use and benefit of the plaintiff and as her agent and trustee for said purpose;” alleges that testator then owned a certain lot on North Taylor Avenue in the City of St. Louis, and without plaintiff’s consent in writing so to do testator expended about $80,000' of plaintiff’s said money in the erection of improvements on said Taylor Avenue property and that said testator owned said Taylor Avenue property at his death and that the same is part of the trust estate now in said trustee’s hands; that the equitable title to the buildings on said Taylor Avenue property is in plaintiff; that neither testator nor his trustee has ever accounted to plaintiff for any rents and profits therefrom, and that plaintiff is entitled to a lien on said real estate and improvements thereon for the amount of her funds invested therein and to an accounting for. such rents ' and profits; that ‘ additional sums aggregating about $20,000 received by plaintiff from the said estates in Germany were turned over by her to testator for care and investment for her use and benefit and that testator “so mixed all of said money with his own, that it cannot be distinguished, and that said sum of $20,000 was invested by said James C. Ghio with his own money, and that he earned at least six per cent interest per annum thereon, which, together with said sum of $20,000 principal, went into the assets of said estate upon his death and to the extent thereof increased the same and came into the possession of the defendant, St. Louis Union Trust Company, trustee.”

Said second count then describes property owned by the testator at his death. The prayer of the second count is for a lien on the Taylor Avenue real estate and improvements and for an accounting by the estate of James C. Ghio, deceased, and the trustee for rents and profits from said Taylor Avenue property and for judgment for $20,000 with six per cent interest for the portion of her trust funds, alleged to have been mingled with the assets of testator, said judgment to be a lien upon the other real estate of the testator in the City of St. Louis and for other relief.

The answer of the defendants Walter Bowles Mc-Menamy, Adrian McMenamy, Mary Renee Ghio, Rodes Garth Dunn, Virginia Lee Dunn and Mary Louise Dunn (all minors and grandchildren of testator), by their guardian ad litem, admitted that plaintiff is the widow of testator and that the testator left the will set out in the petition and that defendant Trust Company qualified as executor and as trustee has taken possession of the property and said answer contained a general denial and calls for strict proof.

The joint answer of the children of testator and their husbands and wives and of the grandchild Evelyn Garth McMenamy admitted the trusteeship of the Trust Company, the relationship of the parties as alleged in the petition and the will as set ont in said petition and that same was duly filed and probated; that the trustee has possession of the property described in the petition; the marriage of plaintiff and testator and that they lived in comfort befitting'their station in life; that the trustee failed and refused to agree with plaintiff as to the amount of money she was entitled to receive from said estate and has failed to pay plaintiff sufficient money to enable her to live in comfort according to her station in life as intended by testator. They allege a willingness that the will should be construed as prayed for by plaintiff in the first count of the petition and that she have the relief therein prayed for.

As to the second count said defendants admit the receipt by plaintiff of the sum of $80,000 as her inheritance and that the sum was delivered into the possession . of testator for investment for her use and that without her written consent the same was invested in his own name, but whether invested in the Taylor Avenue property said defendants do not claim actual knowledge, but admit that said property stood in testator’s name at the time of his death and is now in the possession of the trustee. Said defendants consent that the right,, title and interest of the plaintiff in said property be ascertained, defined and established by decree of court.

The answer of the St. Louis Union Trust Company admits that it -is the trustee duly qualified and acting, relationship of the parties as alleged in the petition, the filing and probate of testator’s will; that said defendant qualified and acted as executor; that as trustee it took possession of all property of the estate; that it has possession and control of all property described in the petition, except certain tracts set out in its answer; alleges that the present value of the personal property is $35,-000; admits the marriage of plaintiff and testator and that they lived together in the enjoyment-of an income enabling them to live in comfort and according to-their proper station in life; denies that it was the intention to create a trust estate to provide for plaintiff’s main.- tenanee and livelihood in comfort and in accordance with the 'manner of living to which she had been accustomed as the wife of testator; admits that it has failed and refused to pay her sums sufficient to enable her to' live in comfort and in accordance with her station in life; that it claims plaintiff is entitled to receive only such sums as it shall reasonably determine to be net income; that all the income has been and is needed to pay proper charges of the trust estate; denies that its action is contrary to the purposes and intent of the testator as expressed in his will.

As to the second count said trustee denies knowledge of the existence of plaintiff’s separate estate or the truth of the allegation that the same was turned over to the testator to be kept and preserved for her and that the same was invested in property standing in testator’s name without plaintiff’s consent in writing,' and demands strict proof of such allegations, and makes general denial of all allegations' not admitted.

Said trustee further answering alleges the death of testator, filing and probate of his will, issuance of letters testamentary thereon, publication of notice thereof, final settlement of said estate, discharge of said defendant as executor; that the claim contained in the second count of the petition was not exhibited against said estate during such administration and that it is therefore barred by the provisions of Chapter 2, Article VII, Revised Statutes 1909, because it was not presented for allowance as a claim against said estate.

Further answering said defendant denies that the funds of plaintiff mentioned in the second count were turned over to testator or, if so, not within ten years prior to the institution of this suit and that said claim is barred by the Statute of Limitations.

.Plaintiff filed reply denying the new matter not admitted in.said reply. The reply denies that the claim is barred, and av-ers that the testator held and had possession of her separate estate as her agent and express trustee, and that as such trustee he never denied the said trust or refused in any manner whatsoever to recognize plaintiff’s rights therein.

The first count of the petition asks for a construction of the testator’s will to ascertain and declare the amount Mrs. Ghió is entitled to receive from the trust estate and that the Trust Company he required to pay-her such amounts as she is entitled and will he entitled to receive. By reason of her death since the trial below, the question of provision for the future of adequate support for her from the trust estate is effectually disposed of. "'But the meaning of the term “net income” still remains for consideration.

The propriety of certain expenditures hy the Trust Company, in meeting assessments for special tax bills Net Income. and in ma~king improvements to real estate permanent in their character, is still involved, as the j~resent beneficiaries are interested in the correctness of such charges as they may occur in the future, and Mrs. Ghio `s executor is interested in improper expenditures of that sort, if any, herQtofore made by the Trust Company. The children of testator and Mrs. Ghio have now succeeded to her estate for the period of their lives, under the terms of testator's will, and their respective children succeed them as beneficiaries until the death of the last surviving child of testator and Mrs. Ghio. lJnless items for special assessments for sewers and for reconstruction of destroyed buildings are so regarded, the record -discloses no expenditures by the Trust Company not properly chargeable by it in performing its duty as trustee. It is incumbent upon testator's trustee, under the provisions of the will, to preserve the property intact and to keep it in such shape that it will produce earnings. If liens for public improvements are suffered to be enforced the property cannot be kept intact, and if destroyed buildings are not replaced the earnings necessarily will be reduced. The cost of permanent improvenients to real estate benefit-lug both the life estate and the remainder and the amount of special taxes for public improvements chargeable a gainst such, real estate and likely to outlast the life estate should be apportioned between the life tenant and the remaindermen. [16 Cyc. 634; 21 C. J. 957; Reyburn v. Wallace, 93 Mo. 326; Bobb v. Wolff, 54 Mo. App. 515; Construction Co. v. Withnell, 190 Mo. App. l. c. 42.]

But we do not understand that the trustee is liable to the life tenant for the payment for such purposes made by it out of gross income from the trust estate. The primary liability is on the life tenant, at least to the full extent of the income. The apportionment of the cost is a matter of contribution between the life tenant and the remaindermen. It was the clear duty of the trustee to preserve the property intact before paying any income to the life tenant. Therefore neither ¡Mrs. Ghio nor her executor had or have any just claim against respondent trust company on that ground, and the construction of the will for the future support of Mrs. Ghio having become unnecessary by reason of her death, it follows that the judgment of the trial court should now be held to be correct.

In the second count of the petition an accounting is sought for money alleged to have been turned over by Mrs. Ghio to testator as her agent and trustee for investment for her benefit. The evidence is not very clear Trust Fund. and definite as to the amount of the sums so turned over testator. The uncontradicted testimony tends to establish an oral agreement on testator’s part to handle Mrs. Ghio’s inheritance as her agent and trustee. That the amount was in the neighborhood of $100,000 appears reasonably clear. The showing in the record before us as to the use of Mrs. Ghio’s money made by testator is exceedingly vague. The petition alleged that approximately $84,000 went into improvements on the Taylor Avenue property, the title to which stood in testator’s name. But the proof unsatisfactorily indicates that not over $25,000 of Mrs. Ghio’s money went into this property. The petition alleges that the balance of her money, some $20,000, went into various mortgages and other investments and was mingled with testator’s prop erty and to that extent increased the value of his estate. If only $25,000 of Mrs. Ghio ⅛ money went into the Taylor Avenue property, the conclusion that the remainder went into the other investments is fairly deducible from the evidence.

Since Mrs. Ghio is now dead and her testimony as to the turning over .of money by her to testator is no longer available, the question of her competency as a witness is of little importance upon a retrial of Widow as Witness. the case. It is sufficient to say that ~ve are of the opinion that she was not a competent witness on this question, because the turning over of the money to testator was one of the facts tending to prove the contract between her and testator and his death sealed her lips also. While the letters from Bruhn, her German lawyer, with proof that they contained remittances, tended to show the amount of her Letters. inheritance, they were not in themselves com~ petent to show the amount turned over by her to testator without further proof tending to charge testator With the amount of the remittances said to have been contained in such letters.

The uncontradieted testimony of some of testator's ehildren tends to show that testator admitted having received for investment from Mrs. Ghio approximately $100,000. Delivery of her separate property to her husband did not divest her of separate ownership therein in the absence of proof of her Admissions. written consent. [Sec. 8309, B. S. 1909.] The fact that this money, the separate personal property of his wife, was received by testator and accepted by him as the agent and trustee of his wife to be invested for her benefit may be established by parol testimony. This is well settled. [Harris Banking Co. v. Miller, 190 Mo. 640-663; Northrip v. Burge, 255 Mo. 641-654.]

The object, the subject, the terms and the conditions of the trust are shown with sufficient definiteness by the testimony of testator `s children. The amount received by him is not definitely shown, but it fairly appears to Resulting Trust. have been approximately $100,000. On a retrial a more definite showing in that regard may possibly be made. We are satisfied that no re-suiting trust arose in the Taylor Avenue property. That property was not purchased with Mrs. Qhio's money. The testimony shows an express trust as to ~hatever part of her money went into the Taylor Avenue property. The Statute of Limitations would not run against a claim by Mrs. &bio until her trustee repudiated her Limitations. interest as cestii~i q~i trvst with notice to her. No such repudiation is shown to have occurred. [Watson v. Payne, 143 Mo. App. 721-728; Butler v. Lawson, 72 Mo. 227; 2 Perry on Trusts (5 Ed.) sec. 883.]

Mrs. Ghio `s claim involved the establishment of a trust and an accounting, matters of an equitable nature, and therefore not cognizable before the probate court Estate Demand. in tue actministration proceedings and sucia claim is not barred by her failure to exhibit her claim in said court against tes~ator's estate. [Butler v. Lawson, 72 Mo. 227, l. c. 245; Scudder v. Ames, 89 Mo. 496, l. c. 521; McKee v. Allen, 204 Mo. 665, l. c. 675; Jenkins v. Morrow, 131 Mo. App. 288; Brewing Co. v. Steckman, 180 Mo. App. 320-325.]

Respondent trust company contends that, except for the indefinite showing that part of Mrs. G-hio's thoney went into the Taylor Avenue property, the record fails to follow any of her funds, and that it is not shown that such funds swelled the assets that passed into its hands Commingling Fund. as trustee, and that therefore no trust can now be established as against such estate, and that plaintiff is not entitled to an accounting. It would indeed be strange doctrine that a trustee can accept money or other property in trust and by commingling such property with his own in hopeless confusion defeat the very object and purpose of the trust. Such a rule would violate one of the cardinal principles of the law, that no man may take advantage of his own wrong. Mrs. Ghio `s money went into testator `s hands. There is no evidence of its repayment or any accounting in relation to it. Her funds are not shown to have been lost by bad investments or in any manner for which her trustee may be regarded as discharged. In the absence of some showing, the presumption will be indulged that those funds retained their trust character in testator’s hands and remained in his hands until his death and that his trustee received his estate swelled by the amount of such trust funds. The Trust Company as testator’s trustee is therefore chargeable with accountability for such trust fund and the earnings therefrom to be satisfied out of the estate in its hands.

An attempt has been made to show that a portion of Mrs. Ohio’s trust funds went into certain investments. If the evidence clearly shows that a definite amount went into any particular property, such as the Taylor Avenue property, an equitable lien against such property may properly be decreed; but we are persuaded that as to such part of her trust funds as were mingled with testator’s general property and cannot now be traced, his entire estate is liable in the hands of his trustee and such estate should be subjected to a full accounting for the same. [Harrison v. Smith, 83 Mo. 210; Stroller v. Coates, 88 Mo. 514, l. c. 521; Pundmann v. Schoenich, 144 Mo. 149, l. c. 155; Tufts v. Latshaw, 172 Mo. 359, l. c. 373.]

Respondent trust company contends that the claims of plaintiff in the first and second counts of the petition are inconsistent; that in the first count Mrs. Ghio treats Inconsistent Demands. the trust as valid and in the second count she c-^a™s ’kkat a portion of the supposed trust estate, amounting to. $104,000, together with rents and profits thereon, was not the property of the testator at all; that she accepted the benefits made for her under the provisions of the will, and should not now be heard to claim that such portion of the estate does not properly belong to the trust estate; that she has elected to take under the will by her conduct and must be held to be bound by such election.

To support this contention a line of cases and expressions by eminent law-writers are cited for our consideration, bnt an examination of these will show that the principles there laid down do not apply here. "Where a will or other instrument undertakes to make disposition to others of property belonging to any person and by the same instrument such person receives property belonging to such other persons, such person cannot retain the property of such others and complain of the disposition of his own property to them, and having accepted the property belonging to such other persons may be said to have elected to take under such instrument. Here Mrs. Ohio has received nothing belonging to her children. All of the net income from the trust estate— much or little—was by the terms of the will.payable to her during her life. Her claim that a portion of the estate devised by testator’s will consisted of property held by him in trust for her does not place her in the attitude of accepting benefits to the disadvantage of others while she contends for her own property. If that net income has been increased by reason of her own separate property being treated as part of her husband’s estate, they have not been injured thereby. The subsequent beneficiaries and remaindermen are not put to any disadvantage they would not have suffered anyway had she repudiated her husband’s will the very day it was filed for probate.

Eminent authority for this conclusion is found in the case of Walker v. Walker, 9 Wall. (76 U. S.) 743. In that cáse it was' contended that the widow by accepting the provisions of her husband’s will, waived her right to institute the suit which was brought to charge the estate in the hands of her deceased husband’s executors with a trust in her favor. In that case, as in the case at bar, the husband had made a limited provision for his wife and had declared in his will that such provision was to be received in lieu of dower. Mr. Justice Davis said: “But if this defense is overruled, it is nevertheless contended that Mrs. Walker, by accepting the provisions of-her husband’s will, waived her right to institute this suit; hut this is giving an effect to the acceptance not warranted by the terms of the will, or anything connected with the case. Dr. Walker in his will saw fit to make a limited provision for his wife, and to declare that it was to be received, with the income under the trust deed, in full satisfaction of dower in. his estate. Nothing is said about the other trust under which he received the separate property of his wife to be invested, and it is hard to see how his estate can be released from accounting for it, or the status of the complainant affected, because she consents to take undei the will what is given her in satisfaction of dower.

There is no merit in the suggestion that the beneficiaries under Mrs. Ohio’s will should be brought in as parties since her degth. Whatever recovery her executor, the substituted appellant, may succeed in making Parties. will be part of the money due her estate and as such her executor will be rightfully empowered to receive it and distribute it under the authority of the probate court. [Sec. 93, R. S. 1919.] Appellant executor has offered to produce Mrs. Ghio’s will in this court in order to show that her beneficiaries are already parties to the instant action, but the view above expressed makes it unnecessary to consider the effect or propriety of such offer.

In this character of cases this court has the undoubted power on appeal to render such judgment as the trial court should have rendered and it is our duty to do so when it can be done; but the record is not in such shape as to enable us to render the proper judgment. Further evidence touching the issues involved in the second count may be procurable to throw clearer light on the amount of Mrs. Ghio’s money received by testator, the use he made of it and what accountings he may have made to her in his lifetime.

Our conclusion therefore is that the judgment of the court below on the first count should be affirmed, and that the judgment on the second count should be reversed and the ease remanded for new trial on said second count in conformity with the views herein expressed and the rules governing accountings between trustees and their cestui qui trusts. Ibis so ordered.

All concur.