¶1Opinion
¶2. The will of Mosely conferred a very large discretion on Cannon, the trustee, but it was not unlimited. It did not authorize him to do as he pleased with the trust fund, but he was to exercise his judgment “ and make such investment and disposition thereof as he might deem best, and to appropriate the revenue, interest, proceeds, and profits of the same to the use and benefit ” of the beneficiaries named.
¶3The manifest purpose was to invest the fund and devote the income or profits to the beneficiaries. “Dull discretionary power ” as to investment and disposition for the purposes of the trust was conferred by the will, but the trustee was bound to have regard to the purposes of the trust and to act in accordance therewith.
¶4It is probable that the devotion by the trustee of part of the trust fund to the discharge of an incumbrance on the “ Thomas place,” whereby we suppose it was freed from a legal charge upon it and secured to the children of Josephine Day, was a justifiable investment or disposition of so much money as was required for that purpose. All that appears is, that Shepherd received payment of an indebtedness due him from Josephine Day and Hubert Day, secured by deed of trust on the Thomas place, belonging to Josephine Day. The character of the indebtedness is not shown. If it was a debt of Mrs. Day, its discharge by the trustee was proper.
¶5The several payments of money by Cannon to Hubert Day would seem prima facie to be not warranted by the terms of the will and the relation of the parties. Circumstances may have existed to make disbursements of money to Day proper, but they do not appear. Assuming the propriety of the payment to Shepherd, it is highly probable, as argued by counsel, that enough more money *19was rightly applied to the use of the children through payments to their father, Robert Day, to warrant the decree discharging the trustee. This is on the further assumption that the appellee accounted for all he is chargable with.
¶6But the record fails to show satisfactorily what the appellee received under the will, when he received it, and how he disposed of it. He has asked a decree discharging him on account of the trust. It devolves on him to account fully and show himself entitled to be discharged from all further liability to account.
¶7Probably he can do so, but he has not done it, and, therefore, the decree is reversed, and cause remanded for further proceedings in the Chancery Court.
¶8Reversed and remanded April 27, 1885.