Estate of Clark

Opinion — Crockett

By the Court, Crockett, J.:

There is no difference in principle between the present case and that of the Estate of Stott. In that case and in this, the executor mingled the trust fund with his own, and- employed it in his business. In the former case the executor was a merchant, and for a series of years used the money of the estate, mingled with his own in his business; while, in the present case, the executor was a farmer, and used the trust fund in conjunction with his own for a number of years, in conducting his farming operations. From the very nature of their transactions, it would be extremely difficult, and perhaps impracticable, to ascertain with any degree of accuracy what profit was realized from the trust fund; and in the case of the Estate of Stott, we held that the proper rule in such cases was to charge the executor with legal interest, computed with annual rests. *360It was shown that the executor in the former case, and in this, were at all times able to respond for the trust fund, whenever its payment should be properly demanded; but we held that this circumstance did not exonerate them from interest, to be computed Avith annual rests, as above stated.

Judgment and order reversed, and cause remanded, Avith an order to the Court beloAv to modify its judgment in accordance with this opinion.

Mr. Chief Justice Wallace did not express any opinion.