The opinion of the court was delivered by
Hornblower, C. J.
The action below, was brought by Anna Eddy, a daughter of the testator, to recover the share given to her by his will, of his personal estate. The jury rendered a special verdict, and among other things, found, that the testator directed and bequeathed as follows, to wit: “ All the residue of my estate, after payment of my debts, (if any there be) and commissions for settling my estate, I give and bequeath to my children, viz: To Stephen Hull, and Gershom Hull, and my daughters, Mary Debaw and Anna Eddy, equally to be divided among them, share and share alike. Nevertheless, my intent and meaning is, that if my said daughter Anna should die, leaving no child or children, then her dividend out oi my estate, shall be equally divided among my sons, Stephen Hull, Gershom Hull, and my daughter Mary Debaw.” The jury further found, that Anna Eddy’s share of the residue, in the hands of the executors, upon a final settlement of the accounts in the Orphans Court, was eight hundred and fourteen dollars thirty-two cents, of principal, and that there had accrued thereon for interest, the sum of one hundred and ten dollars eighty-five cents, making in the whole, the sum of nine hundred and twenty-five dollars seventeen cents; that the plaintiff below, was a widow, and withnut, a child or children; that before the [175]*175commencement of the action, she had tendered to the defendant a refunding bond, pursuant to the act of Assembly, &c.
And the jury submit to the court, that if the plaintiff is entitled to recover the said legacy, then judgment to be entered for the nine hundred and twenty-five dollars seventeen cents, that being the whole amount of principal and interest; but if the court should be of opinion that the plaintiff is only entitled to the interest thereof, then judgment to be entered for the said sum of one hundred and ten dollars eighty-five cents ; or otherwise, &
The Court of Common Pleas, rendered judgment for the plaintiff below, for the full amount of principal and interest. To review that judgment is the object of the writ of error in this case.
By the first section of the act for the more speedy recovery of legacies, &c., Rev. Laws, 49, an action at law is given to a legatee ; in which action, if it shall appear that the legacy “ is due,” and there be sufficient assets, &c. the legatee shall recover with costs, &c., any law usage, or custom to the contrary, not withstanding.
The question then is, whether the bequest or legacy in question, is due, or payable to the plaintiff below.
The difficulty arises upon the contingency annexed to the bequest in this case.
It is well settled, that chattels, and even money, may be so limited by will, as to take effect by way of executory bequest. The case of Moffat v. Strong, 10 Johns. Rep. 12; and the case of Westcott v. Cady, 5 Johns. C. R. 346; and the authorities cited by Chief Justice Kent, in the former, and by the same distinguished judge, as chancellor, in the latter case, abundantly support this position. Prest. on Legacies, 102; 1 Williams on Executors, 465; Tissen v. Tissen, 1 Peer. Wms. 500; Upwell v. Halsey, ibid 651; Hyde v. Parrot; ib. 1.
The limitation upon which this legacy is given, is good, as an executory bequest. It is not upon an indefinite failure of issue, but if she should die leaving no child or children. Sheffield v. Lord Orrery, et al., 3 Atk. 282 & 287; Hughes v. Sayre, 1 Pr. Wms. 534; Prest, on Leg. 149. The limitation over, being [176]*176to her brothers, Stephen and Gershom, and her sister Mary, equally to be divided between them, is an argument also, to shew that the testator contemplated an event, which if it ever happened, must take place at a period not more remote than the time of her death. 4 Kent's Com. 271; Den. v. Schenck, 3 Halst. Rep. 29 ; Moffat v. Strong, 10 Johns. Rep. 12.
But it does not follow, that because the legacy is thus limited, the legatee is not entitled to recover it at law. It seems to be a rule in equity, that where a general bequest is made of the residue of an estate, to one for life only ; and that residue consists of such chattels or articles, as are ordinarily consumed in the use of them, as corn and wine; or of annuities or securities for money, the legatee is not to have the specific property; but the whole is to be converted into money, and the interest thereof paid to the legatee during life. Howe v. Dartmouth, 7 Ves. 137 ; Covenhoven v. Shuler, 2 Paige's C. R. 122; Prest, on Leg. 96; Roper on Leg. 209; 2 Wms. on Executors, 859.
This rule however, does not extend to chattels specifically bequeathed, even though the bequest is made expressly for life only, and cannot by any possibility continue longer. In such ' case, the legatee for life, is entitled to the possession of the goods ; and a court of equity will only require the legatee to sign and deliver an inventory of the articles, acknowledging the receipt of them, and that he is entitled to the use of them for life only. 2 Wms. on Executors, 859; Slanning et al v. Style, et al. 3 Peer. Wms. 334; Leake v. Bennet, 1 Atk. 470. Bills v. Kinnaston, 2 Atk. 82; and the case above cited from 2 Paige's C. R. 122. Formerly in such cases, the Court of Chancery used to require the legatee for life, to give security for the protection of those entitled, in remainder; but such security is not now required, except under special circumstances, as the cases and authorities just cited, will shew.
The legacy in question, however, is not a legacy for life only. It is a gift to the plaintiff, not to terminate with her life, but subject only to be then defeated, if she happens to leave no child or children her surviving; and where a legacy is given in general terms, subject to be defeated upon the happening of a subsequent event, the contingency will not prevent the lega[177]*177tee from receiving the money or chattels, so bequeathed. 2 Wms. Executors, 855.
The legatee in this case, has a greater interest or estate in the money bequeathed to her, than the mere legal value or annual interest thereof. The testator has given her the money itself, the principal. He has not given her the bare use or interest of it. In Fawkes v. Gray, 18 Ves. 131, a pecuniary legacy, given on condition to be void, in case the legatee should succeed to a certain estate, upon the death of A, without issue;payment was decreed to the legatee in the life time of A, and that without security; and this was done upon the authority of Griffiths v. Smith, 1 Ves. jr. 97. In the latter case, the Lord Chancellor says, “ Suppose there is a contingency left, plaintiffs must have the money; for I cannot keep it in court all that time to wait the event.” So in a late case, Colton v. Morris, 6 Madd.
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The opinion of the court was delivered by
Hornblower, C. J.
The action below, was brought by Anna Eddy, a daughter of the testator, to recover the share given to her by his will, of his personal estate. The jury rendered a special verdict, and among other things, found, that the testator directed and bequeathed as follows, to wit: “ All the residue of my estate, after payment of my debts, (if any there be) and commissions for settling my estate, I give and bequeath to my children, viz: To Stephen Hull, and Gershom Hull, and my daughters, Mary Debaw and Anna Eddy, equally to be divided among them, share and share alike. Nevertheless, my intent and meaning is, that if my said daughter Anna should die, leaving no child or children, then her dividend out oi my estate, shall be equally divided among my sons, Stephen Hull, Gershom Hull, and my daughter Mary Debaw.” The jury further found, that Anna Eddy’s share of the residue, in the hands of the executors, upon a final settlement of the accounts in the Orphans Court, was eight hundred and fourteen dollars thirty-two cents, of principal, and that there had accrued thereon for interest, the sum of one hundred and ten dollars eighty-five cents, making in the whole, the sum of nine hundred and twenty-five dollars seventeen cents; that the plaintiff below, was a widow, and withnut, a child or children; that before the [175]*175commencement of the action, she had tendered to the defendant a refunding bond, pursuant to the act of Assembly, &c.
And the jury submit to the court, that if the plaintiff is entitled to recover the said legacy, then judgment to be entered for the nine hundred and twenty-five dollars seventeen cents, that being the whole amount of principal and interest; but if the court should be of opinion that the plaintiff is only entitled to the interest thereof, then judgment to be entered for the said sum of one hundred and ten dollars eighty-five cents ; or otherwise, &
The Court of Common Pleas, rendered judgment for the plaintiff below, for the full amount of principal and interest. To review that judgment is the object of the writ of error in this case.
By the first section of the act for the more speedy recovery of legacies, &c., Rev. Laws, 49, an action at law is given to a legatee ; in which action, if it shall appear that the legacy “ is due,” and there be sufficient assets, &c. the legatee shall recover with costs, &c., any law usage, or custom to the contrary, not withstanding.
The question then is, whether the bequest or legacy in question, is due, or payable to the plaintiff below.
The difficulty arises upon the contingency annexed to the bequest in this case.
It is well settled, that chattels, and even money, may be so limited by will, as to take effect by way of executory bequest. The case of Moffat v. Strong, 10 Johns. Rep. 12; and the case of Westcott v. Cady, 5 Johns. C. R. 346; and the authorities cited by Chief Justice Kent, in the former, and by the same distinguished judge, as chancellor, in the latter case, abundantly support this position. Prest. on Legacies, 102; 1 Williams on Executors, 465; Tissen v. Tissen, 1 Peer. Wms. 500; Upwell v. Halsey, ibid 651; Hyde v. Parrot; ib. 1.
The limitation upon which this legacy is given, is good, as an executory bequest. It is not upon an indefinite failure of issue, but if she should die leaving no child or children. Sheffield v. Lord Orrery, et al., 3 Atk. 282 & 287; Hughes v. Sayre, 1 Pr. Wms. 534; Prest, on Leg. 149. The limitation over, being [176]*176to her brothers, Stephen and Gershom, and her sister Mary, equally to be divided between them, is an argument also, to shew that the testator contemplated an event, which if it ever happened, must take place at a period not more remote than the time of her death. 4 Kent's Com. 271; Den. v. Schenck, 3 Halst. Rep. 29 ; Moffat v. Strong, 10 Johns. Rep. 12.
But it does not follow, that because the legacy is thus limited, the legatee is not entitled to recover it at law. It seems to be a rule in equity, that where a general bequest is made of the residue of an estate, to one for life only ; and that residue consists of such chattels or articles, as are ordinarily consumed in the use of them, as corn and wine; or of annuities or securities for money, the legatee is not to have the specific property; but the whole is to be converted into money, and the interest thereof paid to the legatee during life. Howe v. Dartmouth, 7 Ves. 137 ; Covenhoven v. Shuler, 2 Paige's C. R. 122; Prest, on Leg. 96; Roper on Leg. 209; 2 Wms. on Executors, 859.
This rule however, does not extend to chattels specifically bequeathed, even though the bequest is made expressly for life only, and cannot by any possibility continue longer. In such ' case, the legatee for life, is entitled to the possession of the goods ; and a court of equity will only require the legatee to sign and deliver an inventory of the articles, acknowledging the receipt of them, and that he is entitled to the use of them for life only. 2 Wms. on Executors, 859; Slanning et al v. Style, et al. 3 Peer. Wms. 334; Leake v. Bennet, 1 Atk. 470. Bills v. Kinnaston, 2 Atk. 82; and the case above cited from 2 Paige's C. R. 122. Formerly in such cases, the Court of Chancery used to require the legatee for life, to give security for the protection of those entitled, in remainder; but such security is not now required, except under special circumstances, as the cases and authorities just cited, will shew.
The legacy in question, however, is not a legacy for life only. It is a gift to the plaintiff, not to terminate with her life, but subject only to be then defeated, if she happens to leave no child or children her surviving; and where a legacy is given in general terms, subject to be defeated upon the happening of a subsequent event, the contingency will not prevent the lega[177]*177tee from receiving the money or chattels, so bequeathed. 2 Wms. Executors, 855.
The legatee in this case, has a greater interest or estate in the money bequeathed to her, than the mere legal value or annual interest thereof. The testator has given her the money itself, the principal. He has not given her the bare use or interest of it. In Fawkes v. Gray, 18 Ves. 131, a pecuniary legacy, given on condition to be void, in case the legatee should succeed to a certain estate, upon the death of A, without issue;payment was decreed to the legatee in the life time of A, and that without security; and this was done upon the authority of Griffiths v. Smith, 1 Ves. jr. 97. In the latter case, the Lord Chancellor says, “ Suppose there is a contingency left, plaintiffs must have the money; for I cannot keep it in court all that time to wait the event.” So in a late case, Colton v. Morris, 6 Madd. 89, where a legacy was given to a father on condition that he would not interfere with the education of his daughter ; the legacy was decreed to be paid, though the chancellor required security that the legatee should not interfere with the education of his daughter. These decisions go upon the ground that the bequest is an immediate one; that it is vested and subject only to be divested upon a future contingency, in the nature of a condition subsequent. Upon no other principle could such decrees have been made.
If the legacy in question is a vested legacy, given upon a condition subsequent; then it is “ due ” to the legatee ; and under our statute, may be recovered at law, as well as in equity. That the persons in remainder may possibly be able to make a case in equity, that would entitle them to security, can be no plea in bar to her action at law. If the chancellor should require security in such a case, it would not be on the ground that it was. not a vested legacy, and that the legatee had no right to the possession of it; but it would be on the ground of danger. If it was not a vested legacy payable to the legatee, the chancellor would not decree payment at all, but direct it to be invested.
Upon the facts found by the jury in this case, we must either affirm or reverse the judgment. We cannot give judgment for the interest, the testator has not given her the interest, nor directed when or by whom it shall be paid; and if we reverse the [178]*178judgment, it must be because it is not a vested legacy, and if it] is not, then the money must lie dead, nobody being entitled to' the interest.
It is argued that the executor is trustee of this fund, and he is to put it at interest, and pay the interest to the legatee. But if he does so, he must do it under the direction of a court of equity : for the will has not created him a trustee of this fund, or given him any directions. In one seiise, indeed, the executor is a trustee, but he is so by implication of law only; and ■in that sense, he is a trustee for the legatees in the same manner that he is for creditors, and in no other ; and as such general implied trustee, he has no right to retain this money. He has given no security, and the legatee maybe in as much danger while the money is in his hands, as those in remainder may be, if the money is paid to her. If she is improvident, and they apprehend danger, the Court of Chancery is open to them—non ■ constat that the contingency upon which they will be entitled to have the money will ever happen.
Upon the whole, I am of opinion, it is not only a vested, but an immediate legacy; not payable upon a condition precedent; but liable to be divested upon a condition subsequent; that it is therefore due and-payable to her, as well at law as in equity, and consequently, that the judgment must be affirmed with costs.
Drake, J. concurred.
Ford, J. absente.
Judgment affirmed.
Cited in Den v. Blackwell, 3 Gr. 391; Kent v. Armstrong, 2 Hal. Ch. 648 ; Exrs Rowe v. White, 1 C. E. Gr. 415, Howard v. Howard Exrs., Id. 487; Jones Exrs. v. Stites, 4 C. E. Gr. 327.