The opinion of the Court was delivered by
Moses, C. J.There are two leading questions in the cause:
First. Was the investment, as alleged in the answer, made?
Second. If made, is it such an investment as the Court of Equity will sanction ?
To sustain the fact of the investment, the answer of the defendant, James S. Guignard, Jr., the trustee, is claimed to be entitled to the full force and effect of a responsive one.
That such is not its character, we think, has been adjudged by the decree of the late Court of Appeals. In addition to its expression on this point, it extended to the defendant “ an opportunity to explain his book, in respect to the investment, with liberty to either party to the proceedings to introduce any additional evidence touching the investment in Confederate bonds.” There would have been no necessity to open the case for further testimony, on the part of the defendant, if the answer had been so considered.
It is due, however, to the learned counsel who, in his argument, has exhibited so much ability and zeal, if the decision of the Court' on the character of the answer is doubtful, that we should examine the question by all the lights which his research and investigation have furnished.
It is admitted, in the opinion of the Court of Appeals, that where “ the answer is responsive to the material allegations in the bill, it is conclusive proof, unless contradicted by two witnesses, or one witness, corroborated by circumstances, according to the nature of the case.”
The circumstances and facts, which are to stand iu the place “ of a second witness,” need not be of such a character as to force conviction by their own impression. If they so confirm the evidence of the witness contradicting the denial of the answer as to satisfy the judicial mind that it is either wilfully false, or, by mistake or misapprehension of the events of which it speaks^ is founded on wrong assumptions, their effect will be to require the denial to be sustained by independent proof; and, if this is not furnished, the allegations of the bill will be taken as true. The course, in relation to the force of a responsive answer, has undergone some change. The more modern inclination is rather to assimilate the rules of evidence in the Courts of Equity to those which prevail in the Courts of Law.
.Chancellor Wardlaw, in Cloud vs. Calhoun, 10 Rich. Eq., 366, *377says: “The modem course of Courts of Equity is to restrict the effects of an answer as evidence. Any other course puts the case of a plaintiff too much within the disposal of an unconscientious adversary.” In this, he is sustained by Chief Justice Marshall, in Clarke vs. Van Reimsdyck, 9 Cranch, 153, and by Greenleaf, in his note at page 280 of his third volume.
The bill here sought an account from the defendant of the funds held by him in trust for the plaintiff, Mary S. P. Gibbes, for life, with certain remainders, in which the other plaintiffs assert an interest. It charged that she was entitled, as tenant for life, under the will of her deceased father, James S. Guignard, the elder, of which her brother, the said defendant, was executor, to certain specific devises and bequests, and that, claiming of him an account, and the payment of what might be thereon due her, and partition of the residue of the estate, he had refused compliance with her requests, always averring that he held, as her trustee, under the will, his own note for the sum of $10,000, the iuterest of which he had paid her to 1864.
That, at the beginning of the war, she had earnestly requested him not to invest any of her funds in Confederate securities; but, on the contrary, advised him to invest them in building on land in the city of Columbia, which he declined; that she believed that he did abstain from making investments for her in Confederate securities until 1865, when they, having become almost, if not entirely, worthless, he, as she is informed and believes, assumed to transfer to her credit, or mark with her name, certain Confederate States bonds, which he had before purchased for his own use, in payment and satisfaction of his indebtedness to her; and, on October 13, 1865, informed her that all was lost, and that he then held a package of said bonds for her of $10,000 or $10,600; that she then, for the first time, became aware of his attempts to dispose of her separate estate, and cancel his acknowledged indebtedness, by the substitution of securities which he knew were absolutely worthless; that, still refusing to render any account of his actings and doings as trustee, or to pay what may be due her, she prays that he may be required to account; and, after a prayer for partition of the real estate of the testator, and the interpretation of a certain clause in the will, follows a general prayer for relief.
In addition to the interrogatories, which but, in effect, repeat the charges made, the defendant is required “ to answer whether he did, at any time, - and, if yea, at what time or times, in particular, *378and from what person or persons, purchase for her, or in her name, or invest her funds in his hands, and, if yea, to what amount, in Confederate State bonds.”
The answer, setting forth the various items which, in 1863, contributed to make the trust fund of the plaintiff, in the hands of the defendant, amount to $10,388.03, denies the averment that he ever held, or declared to the plaintiff that he held, hi's own note for $10,000 as her trustee: that plaintiff ever requested him not to invest her funds in Confederate securities: and that he refrained from so investing them, until such securities becoming worthless, he transferred some which he owned in satisfaction of his indebtedness, as charged; and further denies her application to invest in building, until some time in 1864, when the difficulty of obtaining materials and workmen rendered it almost impossible to build at all. It sets forth that the funds of the plaintiff in his charge, at the beginning of the war, consisted of personal bonds and notes, and probably a part in money, and, as payments were made, he reinvested in the same way, until some time in 1863, when, finding himself in possession of her whole trust estate in currency considerably depreciated, and unable to loan at interest, his only alternative was to make what was then regarded a safe and prudent investment. That he made the purchases of the bonds between February and September, 1863, generally in small amounts, and from a great many different persons, whose names he does not remember and cannot set forth, except one Graves and one Willis, from each of whom he bought some.
That, as the bonds were purchased, they were entered in his account, as trustee, at and as of the day of the purchase, or very shortly thereafter, and he filed, with his answer, a statement of his receipts and expenditures, as her trustee.
Whether the answer be responsive, is to be determined by the charges and interrogatories.
Which of these claimed of the defendant a discovery of the securities in which he had invested the trust funds? So far from enquiring as to the character of the investment, the bill averred that it consisted of his note, which he had abstained from converting into Confederate securities; and that, in 1865, he assumed to transfer to her credit certain Confederate bonds, which he possessed as his own, in the place of the note; and that it was not until October 13, 1865, he informed her he held a package of such bonds for her, amounting to $10,000, or $10,600.
*379The material charge conveyed by the. allegations of the bill is, that he had substituted, in the way of payment or satisfaction, the depreciated currency which he owned on his own account. His answer, in denial of this, is responsive, but when he proceeds further, and alleges it was her own Confederate money, received by him in payment of the loan of her trust funds, from time to time, he sets up an independent matter of defence, which throws upon him the burthen of maintaining it by proof.
The interrogatory, whether he did, at any time, and if so, when, and from what person, purchase, on account of her trust interest, such securities, must be referred to, and taken in connection with the previous matter set forth in the bill. It is very true that, to some extent, every interrogatory may be considered as a distinct allegation. The purpose of the one now referred to could only be to compel a disclosure of the names of the parties from whom the purchases of the bonds were made, so that, if, in his answer, he repeated what the bill charged he had communicated to the plaintiff on the 13th October, 1865, she might possibly avail herself of the means of contradicting him.
Is the bill framed with a view to the discovery of the character of the investment made by the trustee, as ancillary to the prayer of relief by account and payment, or, substantially, is it only for an account? What was to be discovered?
The principal claim against the defendant, as stated in the bill, arose under the will of the father, and from a debt which she supposed he owed her at his death. She was the beneficiary of a fund which had passed into the hands of the defendant, who recognized and dealt with it as a trustee on her behalf. He, on his part, sets up, in defence, the loss of the whole, through an investment made by him without previous consultation with, or notice to, her; and he maintains that his answer, in this regard, is a shield which must protect him, unless he can be contradicted by two witnesses, or one witness, corroborated by circumstances, in themselves so convincing that they must be accepted as the testimony of an additional witness.
The interrogatory, which calls on him to answer “whether he did, at any time, and, if yea, at what time or times, in particular, and from what person or persons, purchase for her, or in her name, or invest her funds in his hands, and, if yea, to what amount, in the purchase for her of Confederate States bonds,” is met by a response so vague and indefinite as to afford no information as to *380the periods of the alleged purchases, or the persons from whom made.
The allegations in the bill do not appear to us so to negative the fact of the investment, that the assertion, in the answer, of his having made it, can be taken as evidence conclusive, unless rebutted by the testimony of a witness and corroborating circumstances.
If, however, the answer as to the investment made is to be regarded in response to the bill, still, the testimony of the plaintiff, with the independent facts so strongly confirming it, may well stand in the place of “a second witness.” From the fiduciary relation which the defendant bore to the plaintiff, assuming that he was under no legal obligation to consult or confer with her, his communication of his intention to convert the whole of the funds which he had in hand for her into Confederate bonds, even as a mere matter of business, was certainly to be expected; it was natural to look for it — and, yet, neither his answer or his testimony, intimate such disclosure. It may, at least, excite surprise that a transaction, in which she was so much interested, was not made known to her at the time, or soon thereafter. The conduct of the party failing to do that which, under the circumstances, it was likely he would have done, may contribute much force to a judgment which is to be reached by a review and consideration of his acts and omissions. The defendant does say, in answer, that she was apprised of the purchase long before the failure of the Confederacy, yet he does not repeat it in his testimony, neither does he state the time when, nor the manner in*whieh, the information was obtained. How long after the alleged investment, does not appear from his answer or his evidence.
The plaintiff, in her testimony, states, in addition, that, after General Sherman had left Columbia, (which was in February, 1865,) the defendant told her “that her money was in personal bonds, not better than Confederate;” and, soon after, he said “the money was in Confederate bonds;” and, being uneasy, to satisfy herself, she, with Mr. Lee, (at her request,) sought her brother, and, on meeting him, she asked “how her money was invested,” when he replied: “In personal bonds, but they are not better than Confederate bonds.” The testimony of Lee is substantially in accord with her own, as to the conversation. Although the defendant -was examined after this testimony was given, he did not attempt to contradict it.
*381“Yerbal admissions should be received with great caution; but where they are made deliberately, and precisely identified, the evidence they afford is often of the most satisfactory .character.” — 1 Green. Ev., § 200. See, also, Gresley Eq. Ev., p. 456.
The answer itself may furnish statements which might go far to refute the very defence relied on by it. Chief Justice Marshall, in Clarke vs. Reimsdyck, already referred to, says: “There may be evidence arising .from circumstances stronger than the testimony of a single witness;” and, if these are furnished by the defendant, they operate with still more force against him.
The answer states “that the bonds were bought, from time to time, as opportunities afforded, from a great many different persons, and, generally, in small amounts from each; that, as they were purchased, they were entered in his accounts, as trustee, and as of the date of the purchase, or shortly after.” This is set forth as a fact, and with a particularity which forbids the conclusion that it is the language of the draftsman, and not that of the defendant. In his testimony, he says: “ The entry was made in book, a lumping one,” and immediately follows this by saying: “The entries w'ere made according to the occurrence of the facts.” How are these contradictory statements to be reconciled ? An account current purports to contain a statement of receipts and payments, with the date of each separate transaction. When the account filed with the answer (.which is a copy of that in the book) is examined, the entry proves to be a “lumping one,” and without any date, except as of the year.
A reference to the account weakens the allegation that the fund was loaned out on personal security, from time to time, and, when paid in, was again put out at interest in bonds and notes. The account, so far from shewing this, exhibits the fact that, on the 1st day of January in each year, the defendant charges himself “with amount in hands,” and continues thus to do, until January, 1861, inclusive. On 1st January, 1864, he credits the estate with one year’s interest on §10,338.03, §723.68, which would be at a rate of interest of 7, not 8 per cent., which the Confederate bonds, as he avers, (except one of two,) bore. How was it, too, if the fund was loaned out annually, that the interest was paid quarterly to the plaintiff, as appears to have been done from 1857 to May, 1862, and what is the irresistible inference from the entry, “1860, April 2nd: To cash, i interest on §9,008.03, funds in hand.” Signed “S. P. G.”
*382While we are forced, by the preponderating weight of the testimony, to adjudge that the investment alleged was not made, it is a matter of relief, that we may be permitted to say, it by no means follows that the defendant was influenced by any wilful purpose to deceive, but that he was led 'to a false conclusion, not with a design to do wrong, but from the imprudent act of so mixing the funds of the trust with his own, that the investment he made of the last, he supposed, in some way, attached to the first. His sudden death precluded him. from the opportunity afforded by the appeal decree, “ to explain his book.”
The conclusion which we have reached on the point we have discussed, renders unnecessary any consideration of the other ground taken in the motion.
The decree must, however, be modified in one respect. The fourteen hundred dollars is to be regarded as part of the trust fund ; it has been so treated throughout the whole case. The defendant, in his answer, states that he received it in the character of trustee. If it was but a simple debt due by him to the plaintiff, the remedy to recover it would belong to another jurisdiction. It was the proceeds of a sale of slaves made by the plaintiff and her husband to the defendant, and with their consent, and that of the donor, their father, to be held by the defendant as part of the trust estate of the said Mary S. P. Gibbes.
It appears, by the order confirming the report of the Referee, that a trustee has been substituted in the place of the deceased, J. S. Guignard, Jr., and without security. Although there is no appeal from that order, lest our want of notice of it, after it has been brought to our view by the brief, may be misinterpreted, we take occasion to say that, unless under extraordinary circumstances, we would not sanction the appointment or substitution of a trustee without security.
The order of the Circuit Court, adopting, as its judgment, the report of the Special Referee in the matter referred to him, is confirmed, except as to the said fourteen hundred dollars, with interest from January 1, 1865, which is hereby ordered and adjudged to be paid out of the estate of the said James S. Guignard, Jr., to the party properly entitled to receive it, to be held subject to the uses and limitations of the trust which originally attached to it.
Decree modified.
Willard, A. J., concurred.