1880. argued before the court, counsel were invited to present April Term. their views upon it, which they have done in notes - giving us much aid in our investigations. We shall dispose of that question first. Brown & als. V. Lam als. It is argued for the appellee, that if Upton Edmondbert's son had not sold the slaves the property in them would adm'r & have been inevitably destroyed by the cause which effected their emancipation before the rights of the appellants vested, and therefore they were not injured by the sale and conversion, although Edmondson may have been benefitted thereby, and not being iujured, they are entitled to no relief. To this it is replied for the appellants, that their claim is not for damages as for a trespass, where the recovery is measured by the extent of the injury done, but that their claim rests on equitable principles peculiar to trust estates; that the slaves when sold were trust property; that Edmondson was a trustee; that the sale was a breach of trust; that the appellants are cestuis que trust, and have the right to treat the proceeds of sale as trust funds, although the original trust property would have inevitably perished if it had not been converted. We think this is the correct view of the case. The doctrine is elementary, that where a trustee commits a breach of trust by a sale of the trust subject without authority, the cestui que trust (beneficiary) may, at his option, disaffirm the sale and pursue the property in the hands of a volunteer or a purchaser for value with notice of the trust, or he may affirm the sale and resort to the proceeds in the hands of the trustee, if they can be identified, or if they have been invested or converted into other property held by the trustee, or a volunteer, or purchaser with notice, and can be distinctly traced, he may, if he elect to do so, take such property in lieu of the proceeds so invested or converted, or if he elect not to do that, he may have 1880. his remedy personally against the trustee. April Term. & als. V. Lam bert's als. The option in such case, says Judge Story is exclu-· sirely given to the cestui que trust, and is given to him Brown for the wisest purposes and upon the soundest public policy. It is to aid in the maintenance of right and in the suppression of meditated wrong. Oliver & others v. adm'r & Piatt, 3 How. (U. S. R.) 333, 401. "The rule in equity," says the same eminent authority, "is, that all the gain made by the trustee, by a wrongful appropriation of the trust fund, shall go to the cestui que trust, and all the losses shall be borne by the trustee himself." Ibid. And if there is a breach of trust and an inevitable calamity destroys the property, the trustee must account for it. 2 Perry on Trusts, § 847, and cases cited. If he acts strictly within the line of his duty, he will be responsible for no loss; but if he varies from his duty, he must account for the property in all events. Ibid., § 847. Was, then, Upton Edmondson a trustee at the time he sold the slaves in question, is the first inquiry. He had not been regularly appointed such, but he had a direct equitable interest for life in the subject and was in possession. He was not wrongfully in possession. He was not a trespasser. In Tabb's curator v. Cabell & others, 17 Gratt. 160, 172, Judge Joynes, in his opinion concurred in by Judge Moncure (only two judges sitting), said, that "in the view of a court of equity, Mrs. Cabell as tenant for life of the slaves bequeathed to her for life, remainder to her children, was regarded a trustee;" citing as authorities for this proposition, Fearne on Rem. 414; 1 McCord's Ch. R. 227, Swann v. Ligan; 1 Georgia Decisions 109, Martin v. Greer. See also Cheshire v. Cheshire, 2 Iredell Eq. R. 569, 573. 1880. Brown & als. V. Lambert's als. If this proposition be correct in relation to a legal April Term. estate, it would seem to apply with at least equal force to the life tenant, in possession, of an equitable estate. But there is another principle which seems applicable to this case, and that is, that if a person assumes to act as trustee, he shall be treated in equity as trusadm'r & tee, whether he has been duly appointed such or not. "There is no rule of equity law applicable to trusts," says Judge Story, "which is more uniformly acted upon by the courts than that one who assumes to act in relation to trust property, without just authority, however bona fide may be his conduct, shall be held responsible both for the capital and the income, to the same extent as if he had been de jure trustee." 2 Story's Eq. Juris., § 261c. See also 2 Perry on Trusts, § 846, and authorities there cited. Now, in the case before us, the trustee appointed by the deed was dead. Upton Edmondson, one of the immediate beneficiaries, was in possession of the trust property. On a bill filed for the purpose, he might have had himself or another appointed trustee at once. He neglected or did not choose to do so.. For thirty years before his appointment he held possession of the property and was all the time, to all intents and purposes, trustee de facto. While it was his right to receive the profits and income for the use of himself and his family, it was at the same time plainly his duty to take care of and preserve the corpus of the estate for the remaindermen, especially when, from the limitation under the deed and their relation to the subject, they had no very adequate means, if any at all, of protecting their own interest. He certainly had no right to make sale of the property. If such sale were necessary or proper, a court of equity, its aid being invoked, would have ordered it and secured or directed the application of the proceeds. Indeed, it would seem, that April Term. he had no interest in the property which could be 1880. aliened by him. The trust, as to the immediate beneficiaries, was a blended one, such as is occasionally created in family settlements. He had no separate & als distinct interest or estate which he could dispose of. Nickell & Miller v. Handley, 10 Gratt. 336; Markham v. Guerrant & Watkins, 4 Leigh 279. The sale by him was of the absolute estate in the slaves. This is shown by the prices obtained and other circumstances. It was therefore a palpable breach of trust, and, upon the principles already enunciated, he was accountable therefor to the remaindermen, who stood in relation to him as cestuis que trust. The proceeds of sale in his hands were subject to the trusts under the deed, at the option of the cestuis que trust. They had the right to follow those proceeds into any property in his hands in which they had been invested or into which they had been converted, or, at their option, to proceed against him personally, or against his estate in the hands of his representatives, for the value of such proceeds. They were all under the disability of infancy and two of them were also femes covert. They asserted their rights within a very short time after their estates became vested. They could not do so before; at least with any certain benefit. Perhaps, though contingent remaindermen, they may have had the right to file a bill quia timet for the protection of the property or security of the proceeds. 2 Perry on Trusts, § 816, citing Clarke v. Devereaux, 1 S. C. 172; 2 Story's Eq. Juris., §§ 827, 843. If so, however, their failure to resort to such precautionary or preventive remedy would not exonerate the trustee from liability for the consequences of his breach of trust. We are therefore of opinion, that the claim of the appellants is not effected by the general emancipation VOL. XXXIII-34 Brown V. Lam bert's adm'r & als. 1880. April Term. &als. of slaves which occurred as one of the results of the late war. An examination of Davis v. Johns, 2 Rob. R. 729, and Brown Moorman v. Smoot & wife & others, 28 Gratt. 80, will show that the decisions in those cases are not in conflict or at all inconsistent with the principles on which the adm'r & question just discussed has been disposed of. V. Lambert's als. We proceed to the consideration of the remaining questions in the case: 1. As to the claim to the mill property on the ground that the proceeds of sale of two of the slaves were invested in said property. The evidence on this point is very unsatisfactory, and the preponderance would seem to be against the validity of the claim. Several witnesses give declarations of Upton Edmondson, which they profess to have heard more than twenty years before they testified, to the effect that the purchase money obtained for the negro Jane was applied or intended to be applied towards the building of the mill, and one of the witnesses (R. H. Allen) says he recollects distinctly that Upton Edmondson sold two negroes, he does not know when, one of whom (Jane) was sold to Harris Edmondson for $1,300, and the other to one Cunningham for about $800; and he further says, that Upton Edmondson told him that the proceeds of sale of both of these negroes were paid for the building of the mill. These alleged declarations and statements seem to be inconsistent with the other evidence in the cause. It is very clearly proved, that the building of the mill was commenced in the fall of the year 1852 and completed in the spring of 1853, and was paid for wholly by Jones, who seems to have been interested in the property. It does not appear, that a dollar was paid by Upton Edmondson. The account was discharged in part by payments in money made in January, May, and December, 1853, |