
    Edwin Bobert Walker, Ordinary.
    Eugene Stevenson, Edmund B. Leaming, Vivian M. Lewis, John H. Backes, John Grieein, John E. Poster, Malcolm G. Buchanan and James E. Fielder, Vice-Ordinaries.
    In the matter of the estate of Joseph V. Morrisse, deceased.
    [Decided April 14th, 1920.]
    By -virtue of Gomp. Stat. p. 8877 § 178; ameinded first Supp. p. 1157, the orphans court has power to construe a will for the purpose of decreeing idistrihiuiticm according to its directions and provisions (-the comstitutiouiaiity of which statute, however, has frequently been mooted, though never decided), but has mo power over a question concerning the discretion exercised by trustees in the dishunsem'emt of income to legatees, that being peculiarly a question of equitable cognizance and triable in Chancery alone.
    
      On appeal from the Passaic county orphans court. On appeal from an order of distribution.
    
      Messrs. Edwards & SmitE for the appellant.
    
      Mr. Francis Scoli, for the respondent.
   Walker, Ordinary.

The last will and testament of Joseph V. Morrisse was admitted to probate by the surrogate of Passaic county on November 24tli, 1903. Inter alia, it contained the following:

“■Ninth: I give, devise 'amid 'bequeath all the mast, residue 'and remainder of my estate, relal, personal or mixed wheresoever tine same may be and of whatsoever the saim'e miay consist .to Charles B. Bunm amd Adrian D. Smllivam, my executors 'hereinafter named, in trust, to receive and collect the rents, issues, .profits and income ¡of the same amd to keep the funds invested in first bonds and ,mortgagee or olther approved securities, amd, from time to time, to pay over such portion of the income as they shall deem iproper, to .my nephew Reginald Bevan and to my half-sister Katherine Morrisse, until the said Reginald Bevan arrives at the age of .twenty-one yeans; then it is my will 'that the Whole residue of my estate shall be divided equally between my nephew, Reginald Bevan and any half-sister, Katherine Morrisse, share a-nd share alike; ¡and in. case of ¡the death of either 'of them ¡before the Said Reginald Bevan arrives at the age of twenty-one years them it is my will that the share of the one dying ¡Shall go to the survivor absolutely.”

Reginald Bevan, having arrived at the age of twenty-one years, Katherine Morrisse being older, and both being still alive, the executors, as trustees, filed their final account, which was allowed by the orphans court, showing a balance of cash amounting to $12,426.30, besides unconverted real property as the residue of the estate. They later filed a petition praying the court to adjust, order and make distribution of the residue of the testator’s estate. The matter having come on, for hearing in tlie presence of counsel for all parties, it was ordered that the sum of money in the residuum he distributed and paid by the executors and trustees to Katherine Morrisse and Reginald Bevan. This order did not saj'" that such payment should be share and share alike, but the will says that the residue of the estate shall be divided equally between Reginald and Katherine, and counsel on the argument conceded that that was the interpretation to be put upon the order, which, by the way, recited that the court was satisfied that each was entitled to an equal one-half share of the residue. In their petition for distribution, the executors and trustees show that they had disbursed to Reginald Bevan $16,-092.68, and to Katherine Morrisse $6,644.48; that the disproportion in the disbursements was the result of the difference in time between the respective, residuary legatees arriving at full age, and that, as the result thereof, the petitioners were uncertain as to the exact proportion in which those legatees should receive •the residuum of the estate.

Katherine Morrisse appeals and contends, that in the distribution now to be made, Reginald Bevan should be charged with the excess of income paid to him over and above the amount of income paid to her.

The trust was to invest the residue and from time to time pay over such portion of the income as the executors should deem proper, to the testator’s nephew Reginald Bevani, and his half-sister Katherine Morrisse, until Bevan should arrive at the age of twenty-one years, when the whole of the residue should be divided equally between them. This, is perfectly plain and calls for no construction, a thing which the orphans court would have power to do for the purpose of decreeing distribution according to the directions and provisions of the will. Comp. Stat. p. 8871 § 173j amended first Supp. p. 1157. The constitutionality of this statute, however, has frequently been mooted, but never decided. See In re McGaw; 88 N. J. Eq. 288, and cases cited at p. £90.

The question submitted to the court below, and here, was not one calling for the construction of the will of testator*, but was oxxe concerning the discretion exercised by the trustees in the disbursement of income to the two legatees. It was contended on behalf of Katherine that the case fell within the rule that where a trustee abuses the power committed to him the court may interfere and compel the making of a proper allowance, as in Read v. Patterson, 47 N. J. Eq. 595. On behalf of Reginald it was contended that the power givexx to> the trustees is entirely discretionary with them, and- that a court of equity has no jurisdiction to command them as to the exercise of that power, ■provided their conduct be bona fide, as in Larkin v. Wikoff, 75 N. J. Eq. 462, 478, and that there was no imputation of mala fMes in the ease. The question thus presented was peculiarly one of equity cognizance and triable in chancery alone. Lippincott's Case, 68 N. J. Eq. 578. Only the court of chancery can follow trust funds. Koch v. Feick, 81 N. J. Eq. 120. It is true that the jurisdictional question was not raised in the court below, or in this court, and tire argument here on both sides was on the equitable doctrine invoked; nevertheless, while the court helow lacked jurisdiction of the question which underlies and is the basis of its decree, I think it should be affirmed, because it orders the distribution which the will directs, namely, an equal division of the residue. This is tire only distribution that the orphans court could order. Therefore, the decree under review will be affirmed.  