The opinion of the Court was delivered by
Wright, A. J.It is not so certain that if the plaintiff, Samuel
J. Nettles, was substituted only as trustee under the deed of 2d January, 1855, he could not properly maintain the bill. The pur- ■ pose of the deed of 28th February, 1860, was to protect the trust created by the first, so far as it provided means to repair the loss occasioned by the act of the cestui que trust, in selling one of the slaves which passed under it, and, after appropriating'therefor a sufficient sum for such purpose, to hold the remainder, subject to *50the same trusts which were established by the first deed, to which it appears to have been only subsidiary. Nettles, bjr virtue of his substitution as trustee under the first, might well require that the second should be applied to the object proposed by it. It is not necessary, however, to consider that question, for the original bill and bill of revivor both allege the fact that Nettles was substituted as trustee under the two deeds, and both bills were taken pro eonfesso. Besides this, it is admitted in the brief, with the signature of counsel, that it “ is a correct statement of the case,” and this allegation of the bill forms part of it.
Strict pleading would require that Wilson should have been a party. No objection to this omission was made by demurrer or otherwise, although, in the argument here, it was alleged that to his default the non-payment of the demand now claimed is attributable. If the interest of the respondent required it, she should have taken the proper course to have made him a party, and cannot now complain of what she could so easily have remedied. We do not see any ground upon which she can maintain her defense. Her intestate received a fund of which the cestui que trust, Adeline O. DeLorme, was a distributee. There is no dispute of the fact that he so knew, for it is claimed, as a bar to bis liability, that he retained, until 1863, her share of the bank bills, which he had received on the recovery, on behalf of his intestate, Robert Nettles ; and added to this, he had notice on 6th March, 1860, shortly after the fund came to his hands, that Wilson held an assignment of her share. He therefore had the ready means of ascertaining which of the parties he was bound to pay ; indeed, no adversary rights existed, or were set up between them.
The Circuit decree, while it admits that his estate is liable for the $242.20, the amount of the hills used by the intestate, relieves him of all responsibility as to the remaining $200, on the ground that the sale of them by his administratrix was a devastavit by her, for which his estate is not liable. It is enough to say that the liability of the intestate arose as early as March, 1860, when, having the funds belonging to this distributee, he failed to pay them over. Her right to receive did not depend on any demand to be made by her or on her behalf. All he could require was an acquittance, and this it was in the power of Wilson to give. If the deed of assignment was void, or inoperative, he could have had a full discharge by the receipt of herself and husband.
*51We fail to discover any difference between the admitted liability of the intestate for the $242.20 used by him, and the bills of the State Bank for $200, afterwards converted by the administratrix into National currency, at 27 cents on the dollar. If they had been retained and tendered, still the plaintiff was not bound to accept them in their depreciated character.
His claim is not for the identical bills so converted, but for the amount due the distributee from the estate of Nettles, in the hands of MeCown, his administrator, whose use of them, or a portion of them, for his own individual purpose, is inconsistent with the idea _that they were specially retained and held as the property of the distributee.
We can see nothing in the ease which can exclude the application of the general rule as to interest in regard to administrators. Even if the claims of the plaintiff and Wilson had been conflicting, it was the duty of the intestate to invest the fund, so that it could be productive until the proper right of ownership was established.
In Duncan et al. vs. Dent, 5 Rich. Eq., 7, it was held that “ an administrator keeping funds after the payment of debts in his hands without profit will not be excused from the payment of interest merely because various persons claim the estate in different rights, and suits have been instituted.”
It is a misconception to suppose (as is alleged under the fourth head of the argument of the respondent) that, as administratrix of MeCown, she is not liable for interest on the money not actually used by him until demanded, as she is not the representative of the estate of Robert Nettles, from which the fund was derived. Though “ an administrator of a deceased administrator does not represent the estate on which his intestate administered, and is not bound to make interest on any fund of that estate in the hands of his intestate at his death,” as was held in Davis, Adm’r., vs. Wright, Adm’r., 2 Hill, 563, the facts do not support the application of the rule to the case in hand.
When MeCown received the fund as administrator of Nettles, he held for his creditors and distributees.
It is conceded that a specific sum was in his hands for’ the distributee, Mrs. DeLorme, for which he was liable to her, or those who represented her in regard to it. As the administrator of Nettles, he held it for her use, and unless he can excuse himself for *52the non-payment of it by some more adequate reason than he has presented, he must he held bound for the interest. The decree of the Circuit Judge must be modified, and the defendant, as adminis•tratrix of McCown, is held liable to pay the plaintiff, as trustee, the sum of $442.20, with interest from 6th March, 1860.
This might dispose of the whole case, but it appears from the decree that an account is asked. It is, therefore, remanded to the Circuit Court.
Moses, C. J., and Willard, A. J., concurred.