When tbe trial court was last called upon to stay proceedings herein under-tbe Soldiers’ and Sailors’ Civil Relief Act of 1940, be was faced with defendant’s report, filed that day with tbe clerk of tbe Superior Court of Henderson County, showing tbe trust account to be in a precarious condition. Eight items therein, aggregating $1,042.73, represented payments made by tbe defendant in preparing bis defense in this action. Moreover, tbe admission in defendant’s answer that be was “not managing said fund pursuant to any directions in the will of Frances M. Lightner,” and tbe allegation that be was proceeding under ante mortem instructions from Clarence A. Lightner, which tbe plaintiffs challenged because of alleged incapacity of tbe maker, were sufficient to put tbe court on notice and inquiry respecting tbe status of tbe fund in suit. Tbe court observed: “From tbe depositions giving tbe records of bis bank account and tbe ledger sheets showing bis speculations with tbe trust funds, it appears that tbe defendant did not have a defense.” It is tbe duty of a court of equity to care for trust funds, especially where tbe rights of minors are involved. Carter v. Young, 193 N. C., 678, 137 S. E., 875. As said by Merrimon, J., in Albright v. Albright, 91 N. C., *209220, “However large may be the powers with which the trustee is invested, they are all to be exercised only for the purpose of effectuating the trust; and when it appears that such powers are perverted to the detriment of the cestui que trust, the court will promptly interpose its protective authority.” See Young v. Hood, 209 N. C., 801, 184 S. E., 823; Heyer v. Bulluck, 210 N. C., 321, 186 S. E., 356, and cases there cited.
The burden of the appeal is, that the defendant has been deprived of his right to a stay of the proceedings under the Soldiers’ and Sailors’ Civil Belief Act of 1940. This act provides:
“Sec. 201. At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.” 50 U. S. C. A., Appendix 521.
“Sec. 200. In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant ... no judgment shall be entered ... if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest,” etc. 50 U. S. C. A., Appendix 520.
It was the opinion of the trial court that the ability of the defendant to conduct his defense was not materially affected by reason of his military service. The judgment recites a factual finding “that the defendant has had ample time and opportunity properly to prepare his defense in this ease and that his military service has not prevented him from doing this. . . . His failure properly to handle the trust fund or to account for the same has not been affected in any way by reason of his military service.” Indeed, the trial court was strongly convinced of the necessity of prompt action on the part of the court of equity to protect the fund in suit. He permitted the defendant to use the Act of Congress as a shield, and declined to permit him to use it as a sword. In this, we think the trial court pursued the intent of the statute. Pope v. U. S. Fidelity & Guaranty Co., 20 S. E. (2d) (Ga. App.), 618; Jamaica Sav. Bank v. Bryan, 175 Mise., 978, 25 N. Y. S. (2d), 17; Annotation, Soldiers’ and Sailers’ Civil Belief Acts, 130 A. L. R., 774.
Speaking to a similar situation in the Pope case, supra, Sutton, J., delivering the opinion of the Court, said: “So, it will be seen that a person in the military service is not entitled to a stay of a judgment against him as a matter of law under the provisions of the Act of Con*210gress just referred to, where in the opinion of the court passing on the matter the ability of such person to comply with the judgment is not materially affected by reason of his military service; nor is such person entitled to a stay of a proceeding against him, merely by virtue of said act, unless, in the opinion of the court passing on the question, his ability to conduct his defense is materially affected by reason of his military service.”
To like effect is the declaration of the Circuit Court of Appeals, Sixth Circuit, in the case of Royster v. Lederle, 128 E. (2d), 197: “The object of the Act was to prevent injury to the civil rights of those in the armed services of the United States during that service in order that they would be free to devote all of their energies to the military needs of the Nation. Unless it is made to appear that the rights of the person in the service will be prejudiced by a proceeding against him, the Act is inapplicable.” See, also, Swiderski v. Moodenbaugh, 45 F. Sup., 790.
Nor was it error for the court to proceed without appointing an attorney to represent the defendant. Such is the requirement only “if there shall be a default of any appearance by the defendant.” Here, there was no default of any appearance by the defendant. He had duly filed answer. Depositions had been taken. His counsel appeared at the January-February Term, 1942, and moved for a continuance. This was granted, apparently upon satisfactory terms. The defendant again appeared through counsel at the May-June Term, 1942, and moved for a ■continuance. It is true, counsel then announced that he appeared .“for the sole purpose of moving for a continuance.” Nevertheless, the appearance was general, and the court was presented with a discretionary matter.
The exceptions entered to the trial are untenable. The defendant admitted in his answer that $15,449.10 had been turned over to him as a trust fund for the benefit of Martha Penelope Boone. It was clearly made to appear on the hearing that the defendant had undertaken to speculate with these funds by investing them in a marginal account in his own name with a brokerage firm in New York. Upon such showing, the court was justified in holding the defendant liable as for a breach of trust, Annotation 106 A. L. R., 271, and proceeding as in equity seemed just and right. In re Estate of Smith, 200 N. C., 272, 156 S. E., 494; 19 Am. Jur., 152; 10 R. C. L. (Equity), 349; 26 R. C. L. (Trusts), 1359. No valid reason appears for interfering with the results of the trial.