M-r. Justice Woods
delivered the opinion of the court. He stated the facts in the foregoing language, and continued:
The first contention of the plaintiff in error is that the demurrer to the bill should have been sustained, because the nature of the trust was not therein so sufficiently set forth as to form the foundation of a decree on the part of a court of equity.
Whether the trust was fully and accurately set forth could not be known until the filing of the answer or the taking of the proofs. When the demurrer was heard, from all that then appeared, the exact provisions of the will of the testator rais--ing the trust, and all the terms and conditions of the trust, were stated in the bill. It could not then bejmown whether or not there was anything more to state. Wbat was stated showed the creation of a trust estate, the appointment of a trustee, the designation of a cestui que trust, and specific directions to the trustee in respect to his duties. The court could not assume that any of the provisions of the will relating to the subject matter of the trust were omitted from the bill, and what was stated was sufficient, if correctly stated, to enable the court to act intelligently. The demurrer was, therefore, properly overruled. But tbe defendant refused to stand on bis demurrer and answered the bill.' Having, as it may be fairly presumed, the will of the testator before him, he undertook to set out in his answer, under oath, the provisions of the will in respect to the trust estate and trust in question. There is no pretence that any material word or clause, in relation to the subject of the trust was omitted from the answer. It is, therefore, too late for the defendant, on final hearing in the appellate court, to object that the provisions of the will were not fully set out in the bill of complaint. If there was any defect in the statement made, in the bill, it was rendered immaterial by the statements of the answer, and is not now ground of complaint.. Greenleaf v. Birth, 5 Pet. 131.
A similar assignment of error to that just noticed is, that the court erred in removing the appellee from his office of trustee without having before it the will or declaration of trust for interpretation.
But it is clear that a defendant- to a bill in equity, who states in his answer under oath the provisions of a writing, which is presumed to be in his possession, cannot complain that the court acted upon his admission. The court might in its discretion have refused to interpret the writing without its production. But having acted upon the presumption that the defendant in his answer stated truly the contents of the writing, the latter cannot, on the ground that the writing itself was not put in evidence, ask a reversal of the decree. Courts of equity are frequently required to act on the admissions of the answer without other proof. Thus, when a cause is heard upon bill and answer, the decree is based entirely on the admissions qf the answer without other testimony. Reynolds v. Crawfordsville Bank, 112 U. S. 405; Brinkerhcff v. Brown, 7 John's, Ch. 217; Grosvenor v. Cartwright, 2 Cas. Ch. 21; Perkins v. Nichols, 11 Allen, 542. At all events, it does not lie in the mouth of a defendant in equity to complain that the court assumed his answer made under oath to be true and decreed accordingly.
The next assignment of error is that the decree rendered by the Circuit Court is not justified by the law.
The decree rests solely on tbe ground alleged in tbe bill, of neglect of duty and mismanagement of tbe trust property. If these grounds are sustained by tbe proof tbe authorities are ample to justify the decree of removal. For, where tbe acts or omissions of tbe trustee are such as to show a want of reasonable fidelity, a court of equity will remove -him. Ex parte Phelps, 9 Mod. 357; Mayor of Coventry v. Attorney-General, 7 Brown Par. Gas. 235; Attorney-General v. Drummond, 1 Drury & Warren, 353; Attorney-General v. Shore, 7 Sim. 309 n; Ex parte Greenhouse, 1 Madd. 92; Ex parte Reynolds, 5 Ves. 707: Clemens v. Caldwell, 7 B. Mon. 171; Johnson's Appeal, 9 Penn. St. 416; Ex parte Potts, 1 Ashmead, 340; Buchanan v. Hamilton, 5 Ves. 722; Ellison v. Ellison, 6 Ves. 656, 663; Portsmouth v. Fellows, 5 Madd. 450; Lothrop v. Smalley, 8 C. E. Green (23 N. J Eq.), 192; Hussey v. Coffin, 1 Allen, 354; Attorney-General v. Garrison, 101 Mass. 223.
Tbe averments of tbe bill sufficiently charge, and tbe proofs establish, neglect of duty and mismanagement of tbe trust estate. The charge of tbe bill, which is distinctly admitted by tbe answer, is, that tbe Probate Court found in tbe bands of tbe appellant, executor of John Cavender, as due and belonging to said trust estate, tbe sum of $17,169.49, and ordered him to pay over that sum to himself as trustee. The averment of the bill is sufficient to charge, and tbe admission of tbe answer sufficient to prove, tbe receipt by tbe defendant, as trustee, of the sum of money mentioned. They am conclusive evidence of tbe fact. For when one person is to pay money and receive tbe same money, and nothing remains but to enter receipts and payments in their proper accounts accordingly, the law will consider that as done which ought to be done. Thus, where a sole executor sustains tbe two-fold character of executor and guardian, tbe law will adjudge the ward's proportion of tbe property in his hands to be in his bands in the capacity of' guardian, after tbe time limited by law for the settlement of the estate, Avhether the final account has been passed by the Orphan's Court or not. Watkins v. State, 2 Gill & J. 220. So, where the same person is executor of an .estate and guardian of a distributee, and there is nothing to show in which capacity He bolds funds after payment of debts and settlement of tbe estate, be shall be presumed to hold them as guardian. The State v. Hearst, 12 Missouri, 365. See also Johnson v. Johnson, 2 Hill, S. C. Eq. 277; Karr v. Karr, 6 Dana, 3.
But tbe proof that the trust fund came to tbe hands of tbe trustee does not stop with tbe order and decree of the Probate Court finding the money in bis bands as executor, and directing its payment to himself as trustee, for it appears that he made and filed in tbe Probate Court bis receipt as trustee for the fund, and upon tbe strength of that receipt procured bis discharge as executor. Tbe record of tbe Probate Court, put in evidence, shows these facts. We have, therefore, the admission of record-of tbe appellant,'upon which the Court of Probate acted, at his instance, and upon the strength of which it made an order relieving him from liability as executor, and it is binding on him, and he cannot be heard in any controversy with the appellee to deny his admission that the fund came to his hands.
It remains to inquire whether the proof sustains the charge of neglect of duty and mismanagement of the trust funds.
Having taken possession of the trust moneys, it became the duty of the appellant to invest them as directed by the will, if it were possible to do so. The proof shows that it was possible. The appellant admits, under oath, that he has made no investments of the trust assets, and placed no funds in securities of any sort, or in bank, and set aside no annuities for the benefit of the cestui que tmst or the trust estate. His own admissions show neglect of duty and mismanagement of the trust estate.
The neglect to invest constitutes of itself a breach of ^trust, and is ground for removal. Clemens v. Caldwell, 7 B. Mon. 171, 174; Lathrop v. Smalley above cited.
The only defence set up in the answer of the appellant is a denial that he. ever gave a receipt as trustee, or that he had been discharged as executor by the Probate Court, or that the trust fund ever came to his hands. As the facts thus denied are conclusively established by the evidence, the denial is an aggravation of the misconduct of the appellant. A trustee, into whose hands trust assets are shown to have come, who not only fails to discharge any duty of the trust, but even denies that he has ever received the property, cannot successfully resist an application made to a court of equity for his removal.
The counsel for appellant say that they regret that the pleadings and evidence do not permit a full presentation of the case upon its merits. We cannot act on this vague intimation. There may be facts not disclosed which, if shown by the record, would entirely change the aspect of the case. But we must try the case as the record reveals it. Upon the cause, as presented, with no explanation vouchsafed by the appellant, it is difficult to conceive of a clearer case for the removal of a trustee and the appointment of another in his stead.
Deoree affirmed.