in the same situation as they would have been if no breach of trust had been committed. Where the property has been improperly disposed of and can be followed in specie the trustee will be compelled to reconvey it for the purposes of the trust. In taking the account against the trustee, he will be charged with the amount of principal and income, which might have been received from the trust estate if no breach of trust had been committed. Where a strong case of corrupt or improper conduct is established against the trustee, or if he has acted in direct contravention of an express trust to accumulate, he will be charged in addition to the usual rate of interest with annual or half yearly rests, in the nature of compound interest. In Farwell v. Steen the guardian received some securities bearing annual interest and some simple interest, converted them into money, mingled it with his own and invested the commingled funds where he received more than six per cent interest; held that he was chargeable with annual interest on the whole trust fund, and was disallowed compensation. Shaw v. Bates. The subject of interest on appropriated funds is well discussed by Walker, J., in Perkins v. Hollister, 59 Vt. 348. In McCloskey v. Gleason, 56 Vt. 264, the court said:

"Instead of relaxing the rule charging the trustee who so intermingles the trust estate with his own that he cannot tell what property belongs to the estate, nor what gains he is making thereon-with the highest legal rate of interest, and allowing him nothing for his services, it should be made more stringent." Schouler on Exrs. and Admrs., s. 538.

Upon the facts disclosed there is no occasion to apply a different rule in the present case from the one adopted by this court in the cases above cited.

The general debit balance when George B. Foster died July 28, 1893, was five thousand seven hundred twentytwo dollars and forty-six cents. Deducting two hundred ninety-two dollars and sixty-six cents, the amount found in

banks, leaves five thousand four hundred twenty-nine dollars and eighty cents, which is the aggregate of the appropriations.

The several sums appropriated, are chargeable to George B. Foster's estate, with annual interest from their dates to the first day of this term. As the account is stated, the item of four hundred ninety-five dollars and eighty-three cents was an appropriation and must be charged at the same rate of interest, making in all seven thousand five hundred five dollars and sixty-seven cents, from which should be deducted one hundred sixty-two dollars, allowed the executrix for counsel fees, and interest.

Judgment reversed and judgment that the plaintiff account for seven thousand three hundred thirty-four dollars, to be certified to the Probate Court.

CUTLER & BURNHAM

V.

SOPHIA A. DIX.

OCTOBER TERM, 1894.

Construction of written contract is for the court.

The plaintiffs contracted to furnish a monument of a certain design and of given dimensions. It was conceded that the dimensions of the monument built were different from those called for by the contract. Held, that the court should have ruled as matter of law that the plaintiffs were not entitled to recover, and that it was error to submit to the jury whether the dimensions used were necessary to give due proportion to the specified design.

Assumpsit. Plea, the general issue. Trial by jury at the March term, 1894, Washington County, Tyler, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepts.

John W. Gordon and John H. Senter for the defendant.

The construction of this written contract was for the court, and it was error to submit to the jury whether the conceded change in dimensions was a departure from its terms. Denison's Ex. v. Wertz, 7 Sar. & R. 371; Dwight v. Germania Ins. Co., 103 N. Y. 347: Barby v. Cassidy, 104 N. Y., 155; Rogers v. Colt, 21 N. J. L. 711; Wasson v. Rowe, 16 Vt. 528; Gove v. Downer, 59 Vt. 139; Perry v.

Smith, 22 Vt. 309; Holmes v. Samuel, 15 Ill. 412; Lawson, Usa. & Cus., s. 211; Beals v. Terry, 2 Sandf., 127; Vial v. Hubbard, 37 Vt. 114.

S. C. Shurtleff and O. B. Boyce for the plaintiff.

The design was as much a part of the contract as the dimensions and the plaintiffs might well follow it in constructing the monument. Smith v. Wilson, 3 B. & Ad. 728; Grant v. Maddox, 15 M. &. W. 737 ; Jolly v. Young, 1 Est. N. P. C. 186; Robertson v. Jackson, 2 C. B. 412.

TAFT, J. The plaintiffs agreed in writing to furnish the defendant a monument according to the Dickenson design (except the corner on the die) and of certain specified dimensions. They furnished one, the various parts of which were not cut according to the sizes specified in the contract. Nine of the fifteen measurements varied from those specified. In the monument furnished, the plinth was four and seven-eights inches longer, and the cap three and threefourths inches thicker, than the dimensions required by the agreement. This change of sizes was made by the plaintiffs without the knowledge or consent of the defendant. In reference to this question of the changes in the dimensions of the monument, it is stated in the exceptions that the plaintiffs and their witnesses were allowed to testify what they thought the sizes of the monument ought to be and the effect that the variations made from the contract sizes had

upon the proportions of the monument. We infer, although it is not so stated, that the variations from the measurements which the parol evidence tended to show and which were conceded by the plaintiffs to have been made, were so made in order to make the monument conform to the Dickenson design. The court submitted to the jury the question whether the variations shown were a departure from the contract. The evidence in regard to the variations was

admitted under exception and the defendant also excepted to the submission to the jury of the construction of the contract, claiming that it was a question for the court. Had it been uncertain what the dimensions of the monument were, there might have been a question to submit to the jury, but what the dimensions were, was conceded, and it was a question for the court to say whether the monument was a compliance with the contract. Had the plaintiffs a right to change the dimensions of the monument and make them other than the prescribed ones? We think not. The fact that the monument was to be of a certain design did not justify the plaintiffs in constructing it with other dimensions than those specified in the contract. The design must yield to the measurements. The case is analogous to a conveyance of land which is described by metes and bounds, or courses and distances, and it is held that such description prevails over any general description of the subject matter that may have been used in the deed, tending to enlarge or diminish the boundaries. While many of the variations were so slight that essentially they were such as the contract called for, there were others that we must hold were a substantial departure from the contract; thus the plinth was more than twelve per cent longer and the cap more than twenty-eight per cent thicker than the contract dimensions. It can not well be said that the contract presents a case of latent ambiguity, for the measurements prevail over the design and thus there is no uncertainty. The dimensions must govern and they are made certain. If the contract was erroneously drawn its reformation cannot be had in a court of law. The dimensions of the monument furnished being conceded, it became a question of law whether the contract was complied with. It does not appear that there was any difficulty in constructing a monument according to the specified measurements and the defendant was entitled to a compliance with the contract. Under this holding the defendant was under no obligation to