Page:Federal Reporter, 1st Series, Volume 8.djvu/657

PERRY V. PHŒNIX ASSURANCE 00. 6i3 �3. This fund of $17,169.40 came into the hands of the respondent, as trustee, on the thirtieth day of April, 1879, and it was his duty, within a reasonable time, to intest it at the current rate of. interest, and to pay the income therefrom semirannually to the eoniplainant. He has, for more than two years, neglected to do either; and he admits, in his testimony, that he. is insolvent. �It is clearly the duty of the court, under such circumstances, to remove him from his trusteeship, and to appoint some suitabk per- son, whose duty it will be to, proeeed to collect, from him and the sureties on his bond, the said sum, with interest from the time it came into his hands. The interest, when collected, will be payable to complainant ; the principal will be, by the. trustee, invested at cur- rent rate of interest, as provided by the will, and the semi-annual income wUl be by the trustee paid to the complainant. �4. It appears in evidence that there is certain real estate in the �county of , Illinois, which belongs to the estate of John Caven- �der, deceased, the one-half of the income of which heretofore received by the respondent, if any, and also one-half of its income in the future, is payable to the complainant. �Itwill be the duty of the trustee to proeeed to collect from respond- ent and his sureties one-half of any income he may have received from said real estate since the thirtieth day of April, 1879, and also to take measures to recover hereafter the portion of the income from said real estate which properly belongs to the complainant, and to pay the same over to him. �Let decree be entered aceordingly. ���J. A. & A. J. Perby V. Phœnix Assurance Co. �{Gircuit Court, B. BJiode Mand. 1881..), �1. Pue ABiNG— Conditions Phecedent — Genebal AvBRiiENTS— Demdrreb. �In an action on a policy of flre insurance, where the terms of the policy are �set ont in the declaration, and there is a failure to aver specifie performance of �conditions precedent, held, that the declaration is demurrable. Edd^also, that �the defect is not cured by a general averment oi performance by the plaintiffs �• of all things by them to be performed. �Demurrer. �F. W. Miner, Win. J. Roellcer, Thonuta A Jenekes, and Chas. A. Wilson, for plaintiffs. �Beach dt Allen, for defendant ��� �