The opinion of the Court was delivered by
Willard, A. J.The plaintiff, E. West, as administrator of Milly West, deceased, claims of the executor of R. Truesdel the amount of a legacy left to Milly West by the will of such testator. The legacy was as follows : “And a twelfth to my daughter, Milly West. This one-twelfth of my estate I give to my daughter, Milly West, for her sole and separate use, and it is not to be subjected to the debts or contracts of any person else.” Milly West was, at the time of this legacy, a married woman, and so remained until her death. The estate that came into the hands of the executor subject to the payment of this legacy consisted of Confederate currency. It is not alleged or shown that the executor was at fault in receiving such currency, and he must be held, for the purposes of this suit, to have rightfully possessed himself of such currency as proper assets of his testator’s estate. It is contended that it was the duty of the executor to have paid Milly West’s proportion of this fund into her hands, or into those of her husband, and that the subsequent loss of the estate is chargeable to neglect of this duty. The decree of the Probate Court so holds, and that decree has been affirmed by the Circuit Court.
It is very clear that the terms of the legacy imported the creation of a trust fund, for, without the intervention of a trustee, the purpose of the testator could not be effectively accomplished. As the will did not designate a trustee, nor provide the means of his appointment, it was necessary, before the fund could be paid out by the executor, that a trustee should be appointed by legal authority. No such appointment was made. It is contended that the plaintiff, who was the husband of Milly West, was entitled to assume the authority of trustee and to receive the fund in question. He could not exercise the rights of a trustee without appointment by competent authority, nor could he have been properly appointed trustee of his wife’s estate under this legacy.
One of the clear objects of the special provisions of this legacy was to protect such legacy against the marital rights of the plaintiff as husband of Milly West, and it is inconsistent with such an intent that the fund should be subjected to the control of the plaintiff. Without appointment and security, a payment to the'] plaintiff during the lifetime of Milly West would have been a breach of duty on the part of the executor.
*60The foregoing propositions are fully established by Robinson vs. Dart, (Dud. Eq., 130,) and again in Dunn vs. Dunn, (1 S. C., 350). It is equally clear from these authorities that the receipt of Milly West herself for the corpus of the legacy would have afforded no protection to the executor. It is evident that the decree below was erroneous in this respect.
It appears that the executor converted the Confederate currency in his hands belonging to the estate of his testator into interest-bearing'Confederate bonds. The decision of this Court in Hinton vs. Kennedy (3 S. C., 459,) was in a case precisely parallel to the present one as it regards the claim under consideration. In accordance with that case, we must hold that the executor was guilty of no breach of trust in such change of securities. It fully appears that the entire estate subject to the payment of the legacy to Milly West was lost through the depreciation of Confederate securities.
As it is not made to appear that the executor was at fault in retaining in his hands such securities down to the time when, by the course of public events, they became valueless, there is no ground for maintaining the complaint. '
The decrees of the Circuit and Probate Courts must be set aside and the complaint dismissed.
McIver, A. J., concurred.