
    [Philadelphia,
    January 17, 1827.]
    TRAIN, Executor of NUNEZ, against FISHER.
    IN ERROR.
    Testator directs his executors to sell his real and personal estate, and that the interest of one half of the proceeds shall yearly and every year be paid by his exeecutors to H. N., her heirs and assigns for ever, during her natural life; but, in default of issue of the said H. N., the said moiety of the principal and interest shall descend to the next of kin, or heirs at common law, and their heirs and assigns for ever. Held, that II. N. took the moiety absolutely. /
    
    This case was tried before Gibson, J., at Nisi Prius, in March■ last, and a verdict was found in favour of the plaintiff for the sum of two thousand seven hundred and fifty-two dollars, and sixty-two eents, subject to the opinion of the court, whether the plaintiff was entitled to recover.
    The suit was by Mary Train, executrix of Hannah Nunez, against S. 2?. Fisher.
    
    On the 27th of March, 1760, Jacob Phillips made his last will, containing the following clauses :
    
      Thirdly.. “My will and pleasure is, and I do hereby empower and authorize my executor hereafter named, to sell all the residue of my estate, both real and personal, and give full powers, either by deeds of conveyance, or bills of sale, to settle and secure the right and property to the purchaser.
    
      Fourthly. “My will and pleasure is, that the money arising from the aforesaid sale, and all debts due to me on bond or otherwise, that shall be recovered or received- by my executor, be by him put to interest within some convenient time after my decease.
    
      Fifthly. “My further will and pleasure is, that the money arising from the sale aforesaid, and debts as aforesaid, that the one moiety of the interest of the same yearly and every year arising, be paid by my executor to my well beloved wife aforesaid, and after her decease that the moiety of the principal money and inteTest, shall descend to the next of kin or heirs of common law, and to their heirs and assigns for ever.
    
      Sixthly. “ My will and pleasure is, that-the other moiety or half part of the money arising from the said sale, my meaning and will is, that the interest of the same shall, yearly and every year, be paid by my executors unto Hannah Nunez, her heirs and assigns, during her natural life. But, in default of issue of the said Hannah Nunez, ihe said moiety of the principal money and in-, terest shall descend to the next of kin or heirs at common lavi, and to their heirs and assigns for ever.”
    The testator appointed JLlexander Kollocle, the elder, his executor. On the 31st of May, 1794, John Swift, executed and' delivered, to Philip Kollock and Hester Moore, executors of Jacob Kollock, who was executor of Jacob Phillips, a bond in the penal sum of one thousand four hundred and twenty pounds, thirteen shillings and seven and a half pence, with condition to pay the obligees seven hundred and ten pounds six shillings and nine and three quarter pence, on or before the 31st of May, 1795, together with lawful interest from the date. The said interest being for the proper use of the above named Hannah Nunez, during her natural life, and the said principal sum to descend, according to the directions of the will of the said Jacob Phillips, deceased. On the 7th of August, 179S, the said bond was delivered by the said Philip Kollock and Hester Moore.to S. R. Fisher and Miers Fisher, with a power of attorney to collect the principal after the death of Hannah Nunez, and to apply it to a debt due by them personally to S. R. and M. Fisher.
    
    
      Hannah Nunez died in the month of May, 1819, having made her last will and testament, by which she devised and bequeathed all her estate to Mary Train, the plainfiff, and appointed her executrix..
    On the Sth of June, 1822, the defendant, Samuel R. Fisher, recovered from Samuel Swift, executor of John Swift, the obligor above named, one thousand eight hundred and ninety-four dollars, and twenty-four cents, the principal of the said bond, and three hundred and forty-nine dollars, and fifty cents, interest thereon, from the 12th of May, 1819, the day of Hannah Nunez’s death.
    This action was brought to recover the above sums, and interest, as having been the property of Hannah Nunez, and as having passed to her executrix.
    
      Binney, for the plaintiff,
    contended that the plaintiff was entitled to recover under the will of Hannah Nunez, who took an absolute estate in the money, under the bequest by Jacob Phillips, and it made no difference that the interest only was bequeathed. Fearne, Cont. Rem. 478, 461, 480, 486, 459, 464. 8 Vin. 239, 451. Burford v. Lee, 2 Freem. 210. Anon. 2 Freem. 287. Green v. Rod, Fitz. 68. Bacon v. Neff, Moore, 464. Attorney General v. Sutton, 1 P. Wms. 758. Butterfield v. Butterfield, 1 Vez. 133, 154. Daw v. Pitt, Fearne, 464. Chandless v. Price, Fearne, 467. Then the defendant received the money, not as agent, but as principal; and as such claiming it, though he had notice of its nature, and that it was a trust in the executors. Money may be followed into the hands of such a receiver as trustee. Paget v. Hopkins, Prec. in Ch. 431, note. Upwell v. Halsey, 1 P. Wms. 651. Mansell v. Mansell, Cas. temp. Talb. 252. Adair v. Shaw, 1 Sch. & Lef. 262. Ridgely v. Carey, 4 Harris & M'Hen. 167. Murray v. Barron, 1 Johns. Ch. 566. Sheperd v. M'Ivers, 4 Johns. Ch. 136. Crane v. Drake, 2 Vern. 616. Hodges v. Waddington, 2 Vent. 360. 2 Madd. Ch. 125.
    
      
      Broome, contra,
    argued that Hannah. Nunez was to have the interest only during life; and- the construction of the will was* if she died without leaving issue, and the bequest over was good. Hauer v. Sheetz, 3 Yeates, 224. 4 Serg. & Rawle, 385. Forth v. Chapman, 1 P. Wms. 666. 3 Atk. 328. Atkinson v. Hutchinson, 3 P. Wms. 258. Hoge v. Hoge, 1 Serg. & Rawle, 152, Clark v. Baker, 3 Serg. & Rawle, 478. Hawley v. Northampton, 8 Mass. Rep. 38. Keeley v. Fowler, 2 Fearne, 245. Clifton v. Haig, 4 Dessauss. Ch. Rep. 330. Doe v. Laning, 2 Burr. 1106. Smith v. Clever, 2 Vern. 38, 60. Sheffield v. Orrery, 3 Atk. 288. Robinson v. Robinson, 1 Burr. 44. Jackson v. Billinger, 2 Fes. 501. 2 Atk. 648. Pinbury v. Elkin, 1 P. Wms. 564. Pladel v. Pladel, Id. 748. Sabberton v. Sabberton, Cas. temp. Talb. 250. King v. Melling, 1 Vent. 230. Lodington v. Kyme, 1 Lord Raym. 203. Clare v. Clare, Cas. temp. Talb. 25. Higgers v. Dowler, 1 P. Wms. 99. He also contended, that the action was not maintainable. Although S. and M. Fisher received this money under a power of attorney, authorizing them, after the death of Hannah Nunez, to apply it to the paj^ment of a debt due from the executors to the defendant, yet non constat that it, has been so applied. Then, if the money may be considered in the hands of the executors, (being in the hands of the defendant, their agent,) the action cannot be supported, because no refunding bond has been given.
    
      Reply.
    
    The executors cannot be sued by the plaintiff: they have never received the money, but have authorized the defendant to keep it for his own use. .As to a refunding bond, fifty years have elapsed since the decease of J. Phillips, and there is no probability of unpaid debts. But the defendant is liable, as he claims under a breach of trust, and stands in the place of the executors.
   The opinion of the court was delivered by

Duncan, J.

The right of the plaintiff depends on the construe» tion of the clauses in the will of Jacob Phillips, by which he directs his executors, to sell his real and personal estate, and t( that the interest of one half of the proceeds shall yearly, and every year, be paid by his executors to Hannah Nunez, her heirs and assigns for ever, during her •natural life. But, in default of issue of the said Hannah Nunez, the said moiety of the principal and interest shall descend to the next of kin, or heirs at common law, and their heirs and assigns for ever.” And- the question is,—did the whole moiety of the principal and interest vest absolutely in Harriet Nunez, or was the limitation over to the next of kin good? The difficulty in encountering a question of this kind, arises from the multitude of contradictory cases, now swelled at least to one hundred. Most of the leading ones have been marshalled and arranged in this argument. It would be a futile attempt to endeavour to remember them all, and to com-merit on them particularly would be time misspent. It will be more satisfactory to lay down some generally conceded principles and rules of construction, which have become rules of property, drawn from decisions, than tediously to refer to the particular authorities. Personal estate cannot be entailed,, It makes no difference, in regard to the rules of construction, whether the use, interest, or profits be given with a limitation over of the thing itself, or a bequest of the thing itself. This was formerly a fine-spun distinction, which in process of time, as personal property increased in estimation, and the liberality of courts extended, has been long exploded; and it is now perfectly settled, that whether it be a bequest of the thing itself, or its use, makes no difference. The general principle is, that where there is a limitation of a chattel, by words, which, if applied to freeholds of inheritance, would create an estate tail in personal estate, the whole interest vests absolutely in the first taker. . There is a distinction, however, as to the words, dying without leaving issue, between a devise of real and personal estate; in the former, generally, they seem to be construed to mean indefinite failure of issue,—in the latter, issue at the time of the death of the first taker. The distinction between the same words in the same will, when applied to the different kinds of property, was first taken in Forth v. Chapman, and though there are respectable opinions opposed to this, the distinction is settled, not only in England, but where the question has been considered in the several courts of the United States. In Massachusetts,—8 Mass. Rep. 39. In Virginia,— M'Call, 338, and 2 Munf. 479. In South Carolina,—4 Dessauss. 330. And, in New York,—10 Johns. 12. And the principle has been acknowledged, though not perhaps actually decided in our own -courts. But this consideration is not necessary in the present inquiry; for the question is, and it is a narrow one, .whether the bequest of a chattel interest for life, and no particular bequest to the issue, but limited over in default of issue, the limitation over is good. This shortens our inquiry, and precludes the necessity of travelling over the whole field; for there is no circumstance, nothing in the will to confine it to issue living at the death of the first taker; and it does not seem necessary to effectuate the general intention of the .testator so to construe it, but rather the contrary; for nothing was intended to go over, until the expiration of the whole generation of Hannah Nunez, and I think it may be safely stated, that there is no case to be found in the multitude of decisions, in which the words, dying without issue, standing alone, have received a different construction in the bequest of personal estate, and a devise of land; and they mean, in both cases, indefinite failure of issue. The only difference is, that in personals the court lays hold of any other word .to give effect to limitations that otherwise would be bad, to effectuate the intention of the testator; but, in a devise of lands,- construing them indefinite failure of issue, gives the devisee an estate tail, provides' for the issue, and the second devisee would take as a remainder. The law does not regard the circumstance, that the tenant in tail may bind all by common recovery.

The reason why, where a bequest for life is to one, and nothing directly given, to issue, but limitation over in default of issue, it vests the absolute interest in the first taker, is given by Chief Justice Kent, in 10 Johns. 15: “If a man gives an estate in general to A. for life, and adds, but if he die without issue, and then gives it to B., B. has no immediate gift, but only a contingent interest, on A’s. dying without issue; and it would counteract the intention of the testator, if B, took it immediately on the death of A.; therefore, ex necessitate rei, these words operate an enlargement of the estate for life; for otherwise the issue of A. would not take at all, and B. would take the whole. It is necessary that A. should take an estate which must devolve upon his issue, and upon that ground his estate is extended'beyond an estate for life; and, in a freehold inheritance, it is decreed to be an estate tail, and, in a chattel interest, an absolute property. A. must be considered as taking for the benefit of his issue, as well as of himself, and he must take so that the property would be transferable through him to his issue, and this can only be by his being considered as taking an estate tail in the one case, and possessing the whole interest in the other.”

The consequence of any other construction, it may be added, would be, that as no interest springs to B., and no express estate is given after the death of A., the intermediate interest would be undisposed of, unless A. was considered as taking for the benefit of his issue, as well as for himself. But as an estate in chattels is not transferable to the issue in the same manner as lands, and not capable of any kind of descent, the whole interest is given to the first taker. 3 Roper on Legacies, 394. And though this appears to be artificial reasoning, yet the rule is founded on the nature of the two kinds of property, and here is recommended as the only, one by which the general intention of the testator can be effectuated. The intention is clear, to transmit the legacy to all the issue of Hannah Nunez. That in real estate would be an estate tail; but as personal estate cannot be entailed, the absolute interest vests. Issue through all time, indefinite failure of the first taker,—nothing to go over, but on failure of the whole race; and courts cannot vary the construction, according to subsequent events.

It is to be understood, that this opinion is founded on the consideration that the limitation vests upon the extent and import of the words,'in default of issue, without the concurrence of any restrictive intention to narrow them down to issue of Hannah Nunez, living at her death; for if there were such circumstance, of intention, .the limitation would have been good; as was decided by this court, in 2 Serg. & Rawle, 62, and 6 Serg. & Rawle, 29. There it was held, that those words, standing alone, would not, ear vi termini, signify a dying without issue then living. To restrain them, there must be some apparent restrictive intention,—some clause—some circumstance in the will, which would indicate or imply such intention. A definite failure of issue, is where a precise time is fixed, not in express words, but inferrible with reference to some particular time, or event. There is no time here, no event referred to except one—death without issue.- The word issue, unattended by any circumstance of contrary intention, is required for the purpose of limiting this general sense of the word. The absolute interest in this-moiety vested in Hannah Nunez, and passed to her executor, the plaintiff.

But it is contended, there can be no recovery against this defendant. Now the bond on which the defendant received the money, under the authority of the executors of Phillips, expressly states that it was the very trust money lent out in pursuance of the directions of his will: the interest to be paid to Hannah Nunez during her life; the principal, on her death, to go according to the directions of the -will. It was this very trust that came into the defendant’s hands, with his knowledge. The misapplication of this money to his own debt was a breach of trust in which the defendant with'notice participated. The trust money can therefore be followed into his hands, as money had and received for the cestui que trust, the plaintiff. He has the money of those beneficially interested, with notice, when he received it, that it was theirs. Every principle of natural justice calls on him to refund it. I do not see any good reason why he should not repay it with interest. He has converted the money, or claims to convert it to his own use. The interest is but a just compensation for this detention. Judgment must therefore be rendered for the plaintiff on the verdict.

Judgment for the plaintiff.  