take the words of his deed, to vest a present | contingent, yet as to the issue of either of them, interest in his children and their issue, but in the parent having died before Mrs. Schweikert, such of them only as should be living when the it would be vested. But we cannot see how this precedent estate became extinct, and until that can be. Such issue, grandchildren of the settime the donees could not be ascertained. So, tlor, can take only by way of substitution, and it follows also, that there could not, by any that under precisely the same limitations and means, be a determination of the preceding conditions that limit and control the estate priestate before the expiration of that limited in marily intended for their parents. We are not remainder, for until the death or marriage of able to persuade ourselves that the remainder is Mrs. Schweikert, the remainder as a vested to be regarded as contingent as to the children, estate could have no existence. On part of the and vested as to their issue, for that would be an appellant, much reliance has been placed on evident perversion of the settlor's intent. "And Womrath v. McCormick (1 P. F. S. 504), but for want of such child or children, or lawful there is this circumstance connected with that issue aforesaid, then in trust for the use and case, which very much detracts from its authority behoof of said Gottlieb Schweikert." But when when applied to the present contention; the was this failure of children and issue to occur? learned Justice who delivers the opinion professes Certainly during the lifetime of the mother, and to cite and follow Fearne's Rule, as above if neither parent nor child was alive at her stated, and yet in the citation the important word death, the estate reverted to the donor. That "ascertained" is left out. We will agree that, this construction applies to the children of if all that is necessary to vest a remainder is that Schweikert can scarcely be doubted, and, if so, the person to whom it is limited should be in we cannot see how, under the language of the being when the deed creating it is executed, then grant, their issue are to be put into a different the appellant's case is made out, for that position. Schweikert's children were at that time in being is not a matter of dispute. But we need not spend time to prove that such a rule cannot.be supported. The case cited was said to be in principle scarcely distinguishable from that of Manderson v. Lukens (11 Har. 31), and was ruled by it. But that case involved the construction of a devise, and is thus stated by Mr. Justice LOWRIE: "Analyze the claim in Jan. '84, 177.

Decree affirmed and appeal dismissed at costs of appellant.

Opinion by GORDON, J.

PAXSON and STERRETT, JJ., absent.

J. D. B., Jr.

March 8, 1884.

question, and what have we? A devise to the Townsend and Hartshorne's Appeal. testator's children, that is, to his heirs, and

Realty-Charges on-Orphans' Court-Practice-Estoppel.

impliedly to their heirs after the death of the Legacy-Interest-Wills-Decedents' estates— widow. In other words, a devise of a life estate, with remainder to his heirs-at-law, which is necessarily a vested remainder, or rather reversion." Thus, when we come to examine these cases, we find neither applicable to the contention in hand. We are considering a deed of settlement, not a will, and it is admitted that neither the word "children" nor "issue," as therein contained, is a word of limitation, but rather of purchase.

Moreover, had we any doubt as to the construction of the deed before us, that doubt must be resolved in favor of the appellee, by the recent cases of McBride v. Smyth (4 P. F. S. 245); Delbert's Appeal (2 Nor. 462), and List v. Rodney (Id. 483), all of which are full in point, so much so that comment is unnecessary. We also find a doctrine similar to that of our own, held in the cases of Church v. Clark (21 Pick. 310); Thomson v. Ludington (104 Mass. 193), and Nash v. Nash (12 Allen, 345).

It is, however, urged that conceding that, as to the children of Gottlieb Schweikert and Rosanna his wife, the estate in remainder was

As a general rule pecuniary legacies do not bear interest until after a year from the testator's death, but an exception is made in the case of a pecuniary legacy, the interest and income whereof is to be applied for the maintenance, education, and support of the cestuis que trustent. Such legacy bears interest from the testator's decease, even though the beneficiaries are not minors, and testator did not stand to them in loco parentis.

A testatrix having directed the sale of her real estate only as to the time and manner thereof, directed them out and personal property, leaving to her executor's discretion of the proceeds to pay certain legacies, including one of twenty-four thousand dollars in trust to apply the income for the maintenance, education, and support of the children of a deceased niece. The executors accounted only fied all the debts, expenses of administration, and princifor the personalty, which, leaving a small balance, satispal sums of the various legacies, and the account was duly confirmed. About thirteen months after testatrix's death the executors, acting under an express authority given by the will, in payment of the principal of said legacy, asing securities, and the residuary legatees, being also the signed to the trustees certain of decedent's interest-bearexecutors, elected to take the realty as realty. The cestuis que trustent under above legacy in trust, subsequently

claimed interest on their legacy from the date of testatrix's | convenient, the testatrix gave, devised, and bedecease, and, after failure by a bill of review to open the queathed all the rest, residue, and remainder of adjudication of the executors' accounts, sought by petition her estate, not therein before disposed of, or to have the interest, in default of payment, charged on and collected out of the realty so reconverted and taken by the which should lapse or fail from any cause to take residuary legatees. This was resisted by the residuary legal effect, to said Edward Hartshorne and Henry legatees: C. Townsend, whom she also appointed her executors.

Held, that the legacy being expressly for maintenance, education, and support, was within the exception to the general rule respecting interest on pecuniary legacies, and that interest was payable thereon from the time of testatrix's death, even though the legatees were not minors, and testatrix in her lifetime had expressly refused to contribute to their support. That the will having effected equitable conversion of the realty, and placed it in a common fund with the personalty, the legacy and interest was a charge upon the realty, and that the election of the residuary legatees to take the land as land was necessarily subject to the charge.]

In the above case the legatees were not estopped by the adjudication of the executors' account, nor by the dismissal of their petition to review, the question of their right to interest not having been raised on the audit of the executors' account, and their petition having been dismissed without prejudice to their rights, if any they had, in another form of procedure.

The executors promptly filed their account of the personal property, which, being duly audited, the Orphans' Court out of the balance found awarded to the above-named trustees the sum of $22,800, being the principal bequeathed, less collateral inheritance tax. In paying this award the executors transferred to the trustees four bonds and mortgages, part of testatrix's personal

estate.

The adjudication was confirmed absolutely, and the legatees subsequently filed a bill of review, claiming that the award should have been of $22,800 with interest from the date of testatrix's decease to the time of payment. The executors made answer, and on hearing the bill was dismissed without prejudice to their rights, if any, in another proceeding.

Appeal of Henry C. Townsend and Edward Hartshorne, executors and residuary legatees under The legatees then filed a petition for a citation the last will and testament of Ruhamah Colhoon, to the executors to file an account of the prodeceased, from a decree of the Orphans' Court ceeds of the real estate ordered by testatrix to be of Philadelphia County, ordering interest to be sold. This was subsequently changed to a prayer paid on a certain pecuniary legacy from the time for a decree that interest from testatrix's decease of testatrix's decease, and decreeing that said in-was part of the legacy, and was chargeable upon terest was charged on and payable out of the realty, part of the residuary estate.

transfer of interest-bearing securities was in pursuance of an express grant of discretion, and did not change a pecuniary legacy into a specific one.

and payable out of the real estate of testatrix. To this the executors made answer, that the real The following were the facts of the case: estate was not equitably converted; that the perRuhamah Colhoon died September 17, 1880. sonal estate, excepting a small balance of $49.70, By her will testatrix ordered and directed her had been exhausted by debts, expenses of adminexecutors to sell all her real estate at public or istration, collateral inheritance tax, and legacies; private sale, according to their best discretion as that they did not deem it necessary or expedient to time and terms, and to dispose of her securi- to sell any of the realty, as the residuary legatees ties and investments, and from and out of the had elected to take it as realty; that the remote proceeds of such sales she gave and bequeathed relationship existing between testatrix and her certain legacies. The first bequest was of twenty-legatees precluded all idea of contributing to four thousand dollars to Henry C. Townsend their support; that, in fact, the testatrix had exand The Fidelity Insurance, Trust, and Safe De-pressly refused to so contribute; and that the posit Company, to be held by them in trust, inter alia, "to collect and receive the interest, dividends, and income thereof, and the same either to pay over to, or apply and appropriate to and for the maintenance and education and support of" George, Benjamin C., Thomas M., and Elizabeth H. Ireland, children of a deceased niece of testatrix, for life, with remainder, as respects the principal, to their children; or in default, to HANNA, P. J., delivering the opinion of the their appointees; and in default of children or Court, said, inter alia, as follows: "After a appointees, to testratrix's residuary legatees. careful reading of the will, we do not doubt that After giving sundry other legacies, and author- in this instance, there is an exception to the izing and empowering her executors, at their general rule, that a legacy of a gross sum only option and discretion as to price and values, in carries interest from one year after the death. payment of said legacies either to transfer secu- The intention of testatrix to provide 'mainrities and investments belonging to her estate, or tenance' and 'education' for the children of to pay the same in cash, as they might find most | her deceased niece, could not be more unmis

The Court below entered a decree that the interest from the time of testatrix's decease was a charge upon her lands, and that unless the interest was paid within twenty days a levari facias should issue.

ties transferred to the trustees; and thus arose | for review. That was expressly done without the paramount question in the case, viz., prejudice to their rights, if any they had, in whether the legacy in trust for the maintenance, another form of proceeding. education, and support of the cestuis que trustent,

Having rightly sustained the claim of appellees to interest on the legacy, from the date of testatrix's decease, the learned Judge was clearly right as to the proper mode of enforcing payment. The petition, it is true, was informal and irregular, but it was amendable, and he had a right to treat it as amended.

There appears to be no error in the decree, or in any of the proceedings leading thereto, that requires correction.

Decree affirmed and appeal dismissed at the costs of appellants. Opinion by STERRETT, J.

H. L. N.

The entire estate of testatrix, both real and bears interest from the decease of testatrix or personal, was made a fund for payment of the only from the expiration of a year thereafter. | legacy in question. The former was not sold by On the authority of Hilyard's Estate (5 W. & the executors, for the reason that they as residuS. 30), and kindred cases, the learned president ary legate es elected, as they had a right to do, to of the Orphans' Court sustained the contention take the land instead of the proceeds thereof, of the appellees, and in this we think he was but that did not relieve the real estate in their right. The general rule undoubtedly is that hands from the burden imposed upon it by testapecuniary legacies are not payable until a year trix. after the testator's death, and in the mean time do not bear interest, but to this there are some well-recognized exceptions, such as a legacy by a parent to his child, or by one in loco parentis, by way of maintenance, where the possession of the principal is deferred; a legacy to a widow in lieu of dower, where no other means for her support is provided; and also where interest in the nature of an annuity is given, if by implication from the terms of the instrument, the legacy is given for support. (Cooke v. Meeker, 36 N. Y. 15.) In this case, it is said, when a sum is left in trust with direction that the interest and income shall be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator's decease, especially when it appears to have been the intent of the testator that the legacy should be paid by a transfer of securities bearing interest at the time of his death. Under Jan. '84, 226. such circumstances, all the authorities concur in holding that the accruing interest upon the securities, from the time of testator's death, should go to the use and maintenance of the beneficiary. In the case before us, the clearly expressed intention of the testatrix was to provide main-of assumpsit will lie. tenance, education, and support for the children. of her deceased niece, and there appears to be no reason why it should not be carried out. It is no answer to say they are too remotely related to her. There is nothing to prevent a testator from providing for the maintenance and education of strangers to his blood, whether they be infants or adults. If his intention so to do is clearly and unequivocally expressed, it should be respected. We have no doubt it was the intention of the testatrix in this case that her beneficiaries should enjoy the benefit of the means provided for their maintenance and education, immediately upon her decease, and not be postponed for a year or two thereafter, and, upon that ground, if no other, the decision of the Court below, as to the question of interest, should be sustained.

The appellees are not concluded by the confirmation of the executors' account or distribution of the small balance then in their hands. The claim that is now urged was not then presented nor passed upon in that proceeding. Nor are they concluded by the dismissal of their petition

May 23, 1884.

Bierbower et ux. v. Laird and Bentzel.

Equity-Assumpsit-Account-Fraud.

that it is a more convenient remedy, even when an action A bill in equity will often be sustained upon the ground

A. being indebted to B., A.'s wife assigned certain judgment notes of her husband held by her to B. as collateral for the debt. B. entered up the notes and assigned the judgments to C. By means of attachment executions issued on these judgments money was made and received by C. in excess of the amount due by A. to B.: Held, that a bill in equity would lie by A. and wife against B. and C. to compel them to account for such excess.

Appeal of H. C. Bierbower and wife from a decree of the Common Pleas of York County, dismissing a bill filed by them seeking an account.

Bill in equity wherein H. C. Bierbower and wife were complainants, and Samuel Laird and Edward D. Bentzel defendants.

"The bill alleged that to April Term, 1879, suit was instituted by the administrators of Jacob Meyers, deceased, on a joint and several bill executed by Henry C. Bierbower with Samuel Laird, one of the defendants, as surety, in favor of the said administrators, and that the balance of the said bill or note, $457.77, had been paid in discharge thereof by the said surety. That at this time the said Bierbower was insolvent; that

John W. Bettinger, for appellees. As a general rule, equity will not entertain jurisdiction for the specific execution of agreements respecting things merely personal in their nature. Brightly's Equity Jurisp. 184.

Palmer v. Graham, 1 Pars. Eq. 479.

Sunbury and Erie R. R. Co. v. Cooper, 9 Cas. 279.
Bank of Kentucky v. Schuylkill Bank, supra.
Clark's Appeal, 12 Sm. 450.

Even in cases of fraud.

Mackintosh Tracy, 4 Brews. 59.
Thouron v. Paul, 6 Wh. 625.

In matters of account, where the accounts
are all on one side and no discovery is sought
courts of equity will decline taking jurisdiction.
Building Association's Appeal, 2 N. 445.
Grubb's Appeal, 9 N. 228.

his wife, Margaret, at the same time held in her own right two several judgment notes in the sum of $500 each, executed by him, one on the first of April, 1875, and the other on the 27th of February, 1878. That the said Laird, with the knowledge of Edward D. Bentzel, the other defendant in this bill, procured assignments of said notes from the said Margaret, under an oral agreement that they should be held only as collateral security for the payment of the abovementioned indebtedness of Bierbower to Laird, though the assignments on their face were designedly made absolute under the pretence that they were proper collateral assignments, and that afterwards these notes were duly entered on the dockets of the Court of Common Pleas, and so became judgments against the said Bierbower. That on the 14th of March, 1879, the complain- October 6, 1884. THE COURT. As the Court ants executed and delivered to the said Laird below dismissed the plaintiffs' bill after argument a deed of voluntary assignment for the benefit on a demurrer alleging a want of chancery jurisof creditors of the estate and effects of the said diction, we have but to examine that bill in order Henry C. Bierbower; that afterwards on settle- to determine the rectitude of the decree, which ment of this assigned estate the said Laird re- turned the complainants out of Court. [Here ceived by way of distribution on the original follows the statement of facts above set forth.] To account, and on the two judgments the sum of a judgment of this kind we cannot give our $116.87. The bill also sets out that these judg- assent. For, taking the bill as proved, as we ments were fraudulently assigned by Laird to must do, we have the case of a trustee and his Bentzel, and that by certain attachment execu- attorney fraudulently claiming the trust property tions, issued upon those judgments, some $1416 as their own and refusing to account for the prowere made and received by the said Bentzel, ceeds realized from it. The bill is thus brought and that for the balance, some $724, over and within the very letter of the 39th section of the above the sum necessary to satisfy the debt for Act of 1840. Granted that an action of assumpwhich the judgments were assigned as security, sit would lie against Laird, it does not therefore the defendants refuse to account, and have follow that the chancery side of the Court has fraudulently appropriated the same to their own no jurisdiction. Jurisdiction in equity depends use. Under allegations such as these, the plain-not so much on the want of a common law tiffs pray for relief.

remedy, as upon its inadequacy, and its exercise "The defendants, instead of answering filed a is a matter which often rests in the discretion of demurrer, alleging (1) the want of the statement the Court; in other words, the Court may take of such a case in the bill as would entitle the upon itself to say whether the common law complainants to equitable relief; (2) that the remedy is, under all the circumstances, and in plaintiffs have a complete and adequate remedy view of the conduct of the parties, sufficient for at law. On the grounds here stated, the Court the purposes of complete justice, or whether the on argument dismissed the bill." Thereupon intervention of chancery may not for that purcomplainants took this appeal, assigning for error the action of the Court in sustaining the demurrer and dismissing the bill.

H. L. Fisher, for appellants.

A person who receives money to be paid to another, or to be applied to a particular purpose, and does not pay it to the person, or apply it to the purpose intended, is a trustee, and liable in either law or equity.

Lyon v. Marclay, I W. 275.
Fraud gives jurisdiction in equity.

Bank of Kentucky v. Schuylkill Bank, 1 Pars. Eq.

Cases, 181, 222.

pose be required and beneficially applied. (Bisp. Eq., § 484.) Were, then, the complaint in this case directed against Laird alone, the Court below might well have allowed this bill to stand and ordered the defendant to answer, for the allegation is not only of a trust, and that in favor of a married woman, but of a fraudulent disposition of the trust property, and thus the propriety of the interference of a Chancellor is made manifest. But in addition to this, there is a charge against another party, not in the original transaction, who assisted in the fraudulent dispo

It is not enough that there is a remedy at law.sition of the collaterals and their proceeds. In

It must be plain and adequate.

Boyce v. Grundy, 3 Pet. 215.

Wesley Church v. Moore, 10 Barr, 273.

this view of the case, certainly no adequate or certain remedy can be found except in equity. In the case of Kirkpatrick v. McDonald (1 Jones,