The final account, settled May 13th, 1869, and unappealed from, was conclusive, and no testimony was admissible touching the moneys of the estate previous to said date. (Probate Act, sec. 237, Code C. P. sec. 1637; lihoad’s Appeal, 3 Wright, 186 ; Shind’s Appeal, 7 P. F. Smith, 45; Jacot v. Emmet, 11 Paige, 142; Mix, Admr. v. Heirs of Smith, 8 Vt. 365; Jennison v. Hapgood, 7 Pick. 1; Blount v. Darrach, 4 Wash. C. C. 657.)
While in certain specified cases Courts of Equity have exercised their authority to decree the jiayment of interest by executors, these cases have been almost uniformly where the executors have used the funds and made profit therefrom.
That power does not exist in the Probate Court, and the facts of this case would not in any event justify the exercise of it.
Interest is not chargeable where, as is said in Jacot v. Emmett, 11 Paige, 145, “ the money was kept in bank, or otherwise ready to be paid over, when called for.” (Easier v. Easier, 1 Bradf. 252.)
“ No trustee will in general be held responsible for interest upon the trust fund unless he has actually received it.” (2 Redfield on Wills, 888; Stearns v. Brown, 1 Pick. 530; Lamb v. Lamb, 11 Ibid. 371; Wyman v. Hubbard, 13 Mass. 332; Stevens v. Baninger, 13 Wend. 641.)
Compound interest is not chargeable in this State, except when there is an express contract in writing. ( Crosby v. MoEermott, 7 Cal. 148; Montgomery v. Tutt, 11 Ibid. 316; Loe v. Vallejo, 29 Ibid. 392; Estate of Den, 35 Ibid. 694.)
It is expressly forbidden in all judgments by the Civil Code. (Civil Code, sec. 1920.)
Phelan & Le Breton, for the Respondent.
Placing the funds in bank in the name of his firm was an employment of them which renders the executor liable for interest. (2 Williams on Executors, p. 1569 ; 2 Redfield on Wills, 882, note 11, citing cases, et seq.; Treves v. Townschend, 1 Brown *406Ch. 385; Boclce v. Hart, 11 Yes. 59, 60 ; Ex parte Hilliard, 1 Yes. Jr. 90; Ex parte Townshend, 15 Yes. Jr. 470.)
By mingling the trust fund with his own, he destroyed its identity, jeopardized its safety, and became guilty of a breach of trust, (Lathrop v. Bampton, 31 Cal. 21, 24; Hagthorp v. Hook, 1 Gill & J. 270; Parker’s Estate, 64 Pa. St. 307; Ex parte Townshend, 15 Yes. Jr. 470) ; and is chargeable with interest. (Estate of HuTbert, 39 Cal. 600; Estate of Gasq, 42 Ibid. 288; Estate of Me Queen, 44 Ibid. 589; 2 Bedfield on Wills, p. 886; Dunscomb v. Dunscomb, 1 John. 508.)
By the Court :The order or decree of the Probate Court of May 13th, 1869, being appealable, is to be treated as final, and is conclusive of the amount with which the executor was then chargeable.
That sum and the sums he subsequently received were mingled with the funds of the firm of which the executor was a member, and must be presumed to have been employed in the business of the firm. The circumstance that there was generally a balance to the credit of the firm in bank cannot be considered as affecting the question. Although there is no evidence of any intended or actual fraud in the present case, yet the law will make the executor responsible for presumed profits upon the moneys so employed, and the Civil Code since January, 1873, has declared that every use or dealing with the trust property for any purpose unconnected with the trust shall be a legal fraud. (Sec. 2234.)
The general rule applicable to such cases is that the trustee shall be charged with legal interest with annual rests. (2 Bed-field on Wills, 886 ; 2 Williams on Executors, 1670, and note.)
The cause is remanded, with direction that the order appealed from be modified in accordance with this opinion.