
    MARY HENDRICKSON, SURVIVING EXECUTRIX OF BENJAMIN HENDRICKSON, JR., DECEASED, v. JOSEPH B. ANDERSON AND MATILDA, HIS WIFE.
    B. H., by his will, directed that when his youngest daughter should attain-18, the executors should sell a certain farm, and place the proceeds at interest, to be equally divided among his daughters, and be paid to them when they respectively attained 18, provided that it should be in the discretion of his executors, or the survivor of them, to place the same in the hands of trustees for the use of his daughters, or either of them, to be paid to them, or the interest paid to them, free from the debts or control of any husband. J. B. A. married a daughter, who died, leaving a daughter by him. Afterwards the executors sold the farm, and J. B. A. received from them 81000 of the proceeds, and gave his bond and mortgage to the executors. Afterwards J. B. A. married another daughter, and also obtained letters of guardianship of thé estate of his daughter by his first wife. On bill to foreclose the mortgage, the court refused to allow the shares of J. B. A.’s daughter and wife of the proceeds of the farm to be set off against the mortgage.
    Bill filed May 28th, 1846, to foreclose a mortgage dated April 15th, 1837, given by the defendant Joseph B. Anderson to Mary Hendrickson and Joseph S. Mcllvaine, executors of the will of Benjamin Hendrickson, Jr., deceased, to secure a bond of the same date, given by the said defendant to the said executors, conditioned for the payment of $1000 on the 15th of April, 1838, with interest. Anderson, since the giving of the mortgage, has married his present wife, Matilda, and she is made a party defendant.
    The bill states that Anderson has paid the interest on the mortgage up to April 15th, 1843. The executor Mcllvaine is dead.
    The defendants answered the bill. The answer states that Benjamin Hendrickson, Jr., the testator in the bill named, was the husband of the complainant; that he died, leaving one .son, Benjamin, and seven daughters, to wit, Sarah, Matilda, Cornelia, Elizabeth, Charity, Maria and Julia Ann, who were all unmarried at the time of his death, which occurred on the 28th of January, 1829.
    That the said testator, by his will, after making certain bequests to his said wife, the complainant, in lieu of dower, and in trust to bring up, maintain, and educate, in a proper manner, his said children, did, among other things, direct that, whenever his youngest surviving daughter should attain the age of 18 years, his executors should sell and dispose of his farm called the Reed farm, in such manner as they should deem most for the benefit of his estate, and, in case they should consider it more for the interest of his estate to sell the same sooner, they might do so, and that, whenever said real estate should be sold, the proceeds should bo placed at interest, on good lauded security, and be equally divided among his said daughters, and be paid to them when they, respectively, attained 18, provided that it should be in the discretion of his executors, or the survivor of them, to place the same in the hands of trustees, by a proper conveyance,, for the use of his said daughters, or either of thorn, and be paid to them, or the interest paid to them, severally, as they might deem proper, free from the debts, control, or disposal of any husband, and that if any of his daughters should die leaving-issue, the said issue should stand in the place of their parent.
    That on the 2d of May, 1833, the defendant Joseph B. Anderson married Sarah, the eldest daughter of the said testator» That said Sarah had attained 18 on the 8th of January, 1830,, and was entitled, under the said will, to one-seventh of the proceeds of the sale of the said Reed farm, whenever it should be sold by the said executors.
    That the executors of said will, in the exercise of the discretion thereby vested in them, sold the said Reed farm on the 11th of April, 1837, for $3000.
    The defendant Anderson, answering for himself, says that, immediately on the said sale being made, he applied to the said executors to pay over to him and his said wife Sarah, the oneseventli of the proceeds of said sale, being $428.57, or to secure the same to the said Sarah in the manner prescribed by the said will, if, in their discretion, they were disposed so to do; but this the said executors declined to do, alleging that, by the terms of said will, distribution of the said proceeds was not to be made until Julia, the youngest daughter, attained 18, whioh would be on the 7th of December, 1842, a construction which this dofendant and his said wife were advised was erroneous, and to which they refused to assent. But, in order to avoid litigation, and in the hope that the matter would be amicably settled, it was agreed, by and between the said executors and this defendant and his said then wife, that this defendant should take $1000 of the proceeds of the sale, and give therefor his bond and mortgage, and, accordingly, on the 15th of April, 1837, four days after the said sale, the said executors paid over to this defendant $1000, part of said proceeds, and he thereupon gave the bond and mortgage mentioned in the bill.
    The defendant Anderson further says that his said wife Sarah died January 2d, 1836, leaving a daughter, Ann Eliza, an infant of tender years, and that, on the 6th of June, 1846, he was, by the Orphans' Court of Mercer, admitted as guardian of the estate of the said Ann Eliza, and, as such guardian, he claims to be entitled to the one-seventh of the said $3000, being $428.57, with interest thereon from the said 11th of April, 1837, to be allowed to him out of the sum so secured by the said mortgage, and which, he insists, was loaned to him to secure the payment of such distributive share and interest.
    The defendant Matilda R. Anderson, answering for herself, says that she is the second daughter of the said testator; that she attained 18 on the 4th.of December, 1831; that she lived at home with her mother, the complainant, and earned her livelihood, as she believes, from the time she came of age until she married, and that she never, during that time, or at any time before, demanded or received any part, either of the principal or interest, of her seventh of the proceeds of said sale, but suffered the same to remain in the hands of the said executors, and the interest thereon to accumulate.
    The defendants further say that, on the 7th of June, 1839, they intermarried; that after their marriage, they called on the said executors to pay over to them the distributive share to which she, the said Matilda, was entitled, as aforesaid, with interest thereon from the said 11th of April, 1837, but that the said executors refused to do so, still insisting that the said distributive shares were not payable until the youngest daughter attained 18 years, and further represented that, as this defendant Joseph B. Anderson had in his hands $1000 of the proceeds of sale, these defendants were perfectly secure of the final payment of the legacy bequeathed to the said Matilda, as well as that bequeathed to the said Sarah, and now belonging to the said daughter of the defendant Joseph B. Anderson.
    The defendants further say that, in the term of September, 1844, of the Orphans’ Court of Mercer county, the complainant, as executor as aforesaid, presented an account for settle-men!, in which she only charges herself with interest on the said $3000 from the 27th of December, 1842, the day when the youngest daughter of said testator came of age ; to which account these defendants and others excepted, claiming that interest ought to be charged on each daughter’s share of said sum from the time of the sale of the said farm ; which exception was disallowed by the said court; whereupon the exceptants appealed ■ to the Prerogative Court, and in the term of June, 1845, the said decree of the said Orphans’ Court was reversed, and a decree made that said account should be re-stated by the register of said coart, charging the accountant with interest from the 11th of April, 1837, said interest to commence running, as to each daughter’s share, as she was or became 18 at or after the said 11th of April | and that the said account was so re-stated.
    That, by said account, it appears that the principal and interest of the share of the said Ann Eliza Anderson, the daughter and ward of the defendant Joseph B. Anderson, remaining in the hands of the complainant on the 26th of June, 1845, after deducting all charges for expenses and commissions allowed to the complainant, was $554.14 j and the principal and interest of the share of this defendant Matilda remaining in the hands of the complainant on the said day, after deducting all charges as aforesaid, was also $554.14 • and that the said two sums amounted to within about $25 of the whole amount of principal and interest due on the bond and mortgage given by the defendant Joseph 3B. Anderson to the said executors as aforesaid.
    The defendant Anderson, answering for himself, says that he has repeatedly, since the said account has been settled in the Prerogative Court, called on the complainant and offered to pay her the principal and interest of the said bond and mortgage, if she would pay over to him or satisfactorily secure the distributive shares so as aforesaid due to his said daughter and his wife; but that she has refused to do so.
    The defendants further say, that the complainant is upwards of 60 years old, and very infirm, and not capable, as they believe, to transact business with safety or satisfaction to herself or others; that she has never given any security for the estate in her hands; that this defendant Anderson, on the 5th of December, 1843, with his brother-in-law, J. E. Rose, became security for her on a note given by her to one Theophilus Hart or order, for $560.25, whiel} is still unpaid ; which note was given to secure an individual debt of her own, incurred for labor done for her on the homestead farm while she had the use of it under the will; and that these defendants are under serious apprehension, and believe that if the complainant should get the money due on the said bond and mortgage into her hands, it would be misappropriated, and not applied to the payment of the said distributive shares, and that the same would be thereby lost.
    The defendants admit that, inasmuch as the money for which the said bond and mortgage were given was a part of the proceeds of the sale of the said Reed farm, and was placed and continued in the hands of the defendant Anderson as a security for the payment of the said distributive shares, the said shares ought to be charged as an equitable lien on the fund secured by the said mortgage; and that the said fund should be applied to the payment and satisfaction of the said sums so due to these defendants, according to their several rights under the will of the said testator.
    The cause was heard on the pleadings and evidence.
    C. S. Green and P. D. Vroom, for the complainant,
    cited 3 Green’s Ch. 212; 1 Smith’s Ch. Pr. 459.
    
      S. G. Potts and W. Halsted, for the defendants.
    They cited 1 Halst. Ch. Rep. 112; Saxton’s Ch. 413, 424; 2 Story’s Eq. Jur., § 1435, 6, 7; 7 Porter’s Alab. Pep. 549 ; 7 Marshall 37 ; 2 Green’s Ch. 376; 4 Johns. Ch. 616; 1 Hoph. Ch. 239; 9 Ves. 563; 1 Green’s Ch. 467.
   The Chancellor.

There is no proof of the agreement set up in the answer between the executors and Anderson at the time the money was received by him for which he gave the mortgage. ifor is there any proof of insolvency of the complainant. These special grounds on which the application to make the set-off is made, therefore, fail.

The question, then, is, can the distributive share due Anderson’s daughter, of whose estate he is guardian, and the share due his present wife under this will, containing a provision giving tiie executors, or, the survivor of them, the discretion to convey her share to a trustee for her separate use, be set off against the amount due from Anderson to the complainant, on the mortgage given by him to the executors, or can either of these shares be so set off.

In reference to the share of Anderson’s present wife, the discretion given by the will to the surviving executrix to vest it in a trustee for her separate use, is a sufficient reason for refusing to allow the set-off

As to the share due Anderson’s ward, Anderson is not here as guardian — i. e., the bill does not bring him here as such, nor is the ward a party to the suit. And I do not see any peculiar circumstances to justify or call for the equitable interference of the court.

Decree for complainant.  