
    [Lancaster,
    June 3, 1828.]
    
    BIXLER and Wife against KUNKLE and another, Executors of KUNKLE.
    IN ERROR.
    If executors, who are appointed by the will trustees to purchase land for the use of the testator’s daughter, so that her husband can have no share of it, and in the meanwhile to pay her the interest, have received the money, and suffered a length of time to elapse, and then refuse to perform the trust, and claim the money on the foundation of a release fraudulently obtained by paying- about one half of the money due, which sum the husband had laid out in land as the will directed, and the plaintiffs offered to let the money, when recovered, remain in court to be laid out in the same way, the husband and wife, suing for the use of the wife, may recover as well the principal money-,due as the interest, in an action of indebitatus assumpsit against the executors as such.’
    Tfie naming the defendants executors in the writ, is surplusage.
    A release obtained by executors and trustees from .the cestui que trusts, strangers living in another state, by payment of about half the money due, is fraudulent and void.
    If a case in nature of a special verdict is stated, the defendant' cannot, though he reserves the right, object to the generality of the declaration.
    Writ of error to the District Court of York county. The plaintiffs in error, John Bixler and Anna Mary his wife, for the use of the said Anna, were plaintiffs below. The Writ was in debt not exceeding’two thousand, eight hundred dollars.
    A declaration was filed containing one count as upon a general indebitatiis assumpsit. “For that whereas, heretofore, to wit,, on the 1st April, 1826, the said Christian Kunkle and Christian Gingrich, were indebted to the said Anna Mary,' in the sum of two . thousand dollars, by the said Kunkle and Gingrick before that time had and received, to and for the use of the said Anna Mary, and to be paid by the said Kunkle and Gingrick to the said Anna Mary, when they should be thereunto afterwards requested, whereby action hath accrued to the plaintiffs to demand and have of the said Kunkle and Gingrick, executors as aforesaid, &c.” Piea nil debet, with leave, &c. ,
    Afterwards the parties agreed upon a case stated, to be considered as a special verdict found upon the declaration and pleadings.jiled.
    
    The case included the papers in full, and the material facts, the substance of which was as follows; — Baltzcr Kunkle, father of Anna Mary Bixler, died inlS12, leaving a will, and the defendants executors of it, directing them to sell his real and personal estate, and reserving five hundred pounds to be on interest for the use of the widow during her life, and giving her sundry smaller .legacies, directed an equal distribution of the .residue among all his children in these words: ££and at and immediately after the death óf my said wife, the said sum of five hundred pounds shall be paid and distributed among my- children, share and share alike.
    “ And after the hand money and the money of my personal property is all equally divided, it is my will, that the yearly payments of my said real estate, shall be divided as follows; — the first bond or payment coming due, my son Christian, and my-daughter Maria Elizabeth shall get; the second, Catharine, intermarried with Jacob Coleman, and my executors in the room of my daughter Anna Marys and the third bond my daughter Eve, intermarried with Christian Gingrick, and the heirs of my son Jacob, deceased, and so on in rotation until the whole of the said bonds is paid off. They, my said executors, are to draw my said daughter, Anna Mary’s, whole share of my said real and personal estate, and paying to heir for her use the interest of her said share, until they can purchase real property with the same for her use, as her husband, John Bixler, shall have no share of the same.”
    
    Previous to the year 1816, the ex.eeutors had sold the land, &c., under the will. On the 2nd of April, in that year, the executors paid to the plaintiffs one thousand five hundred and-fifty dollars, on the agreement and conditions appearing in the following deed.
    
      te Know all men by these presents, that whereas a certain Baltzer Kunkle, late of York county in the state of Pennsylvania, in and by his last will and testament, dated the seventeenth day of July, in the year of our Lord one thousand eight hundred and twelve, bequeathed a certain share or portion of his estate to his daughter, Anna Mary, to he retained by his executors until they should lay out the same, in land for her sole use,- and the said exetors, to wit, Christian Kunkle and, Christian Gingrick, being desirous to lay out the said share in lands, according to the directions of the said will, for the use of the said Anna Mary, therefore the said executors have appointed the said Anna Mary and her . husband, John Bixler, their agents, for the express purpose of purchasing land in the state of Virginia, for the use and purpose aforesaid, and paid into the hands of the said Anna Mary and John Bixler, their agents as aforesaid, the sum of fifteen hundred and fifty dollars, lawful money, for the sole and express purpose of laying the same out for.larid, for the said John Bixler and Anna Mary, his wife, who hereby acknowledge the receipt of the same, and acquit and for ever release the said Christian Kunkle and Christian Gingrick, their heirs, executors, and' administrators, of and from the same, and of and from all claims and demands on account of the same, and of any thing coming or to come to the said Anna Mary and all persons claiming under her, out of or on account of her share, legacy, or bequeathment, under her father’s last will. And further, the said John Bixler and Anna Mary his wife, promise and undertake, to lay out the said monies in lands for the use of the said Anna Mary, as soon as may be, not delaying longer than three months from the date hereof, and the title of the'land purchased with the said money, shall be taken to and in the name of the said Anna Mary'alone, and for her sole use to her and her heirs for ever, in the way and manner directed in and by the said last will; and, on failure of the money being laid out as aforesaid, for the space of three months from this date, then the said John Bixler promises and covenants to repay the whole of the said sum of money to the said Christian Kunkle and Christian Gingrick, without further .delay. And the said Anna Mary and John Bixler, in consideration of the premises, grant, bargain, and sell, to the said Christian, Kunkle and Christian Gingrick, and to their heirs, administrators, and assigns, all their, and each of their right, title, interest, claim, and demand whatever, under the will of the said Christian, Kunkle, deceased, to hold the same and any part thereof, free, clear, and released, and for ever discharged of and from all claims and d.emands whatsoever of them, the said John Bixler and Anna Mary his wife, and each and either of them, so that not any of them shall hereafter have, make, or allege any right, claims, or demands for, or on account of any thing mentioned, devised, or bequeathed, in thesaid will. ' In testimony whereof, the said John Bixler and Anna Mary his wife, have hereunto set their hands and seal this 2nd day of April, in the year of our Lord one thousand eight hundred and sixteen.
    (iSigned, sealed, and delivered John Bixler, (Seal.) in the presence of Anna Mary Bixler, (Seal.}
    
      il Jacob Heckert, jr.
    
      <e Daniel Heckert.
    
    
      “ We acknowledge that we have received, on the day of the foregoing instrument of writing, fifteen hundred and fifty dollars, for the purpose of laying out the same in land according to the provisions of-the foregoing instrument of writing.
    
      “ Witness, . “ John Bixler,
    
    ££ Daniel Cauffman, Arina Mary Bixler.
    
      “John Danner,
    
      “ York county, S. S.
    ££ Be it remembered, that the within named John Bixler and Anna Mary his wife, came before me, one of the justices of the peace in and "for the said county, and acknowledged the foregoing instrument of writing to be their act and deed. The said Anna Mary being of full age, and by me examined separate and apart from her husband, and the contents of the' foregoing instrument of writing being first made known to her, declared that she became a party thereto of her own free will and accord, and that she signed the same, and with her seal sealed it as her act and deed, without any coercion or compulsion of her said husband. In testimony whereof, the said justice has hereto set his hand and seal on the day of the date of the within instrument of writing.
    
      “ Daniel Heckert.”
    
    At the time of the execution of the above deed of release, &c., Bixler and wife resided in Virginia.
    
    On the Sth of April, 1816, there was purchased of John W. Bronaugh and wife, a tract of land of one hundred and fifty acres in Fairfax county, Virginia, for the consideration of three thousand three hundred dollars, and by deed of that date, the same was conveyed to Anna Mary Bixler, and her heirs for ever, and the said land and rents, issues and profits thereof, were held and enjoyed by her; and in that purchase the one thousand five hundred and fifty dollars were applied.
    The widow of the testator died in 1825. The share of Anna Mary Bixler under her father’s will, as appeared by the administration account of the executors, was, one thousand four hundred and forty-eight dollars and eight cents, over and above the one thousand five hundred and fifty dollars, paid as aforesaid, exclusive of interest; but including Anna Mary’s one sixth part of the five hundred pounds to be divided on the death of her mother. ,
    The following notice, &c.', were made part of the case:
    
      “ To Christian Gingrich and Christian KunMe, executors of B. Kunkle:
    
    
      “ You are hereby notified, that I am employed as the attorney for Anna Mary Bixler, formerly Anna Mary KunMe, to demand of you the performance of the trust created by the last will and testament of Baltzer KunMe, by purchasing land for Anna Mary Bixler with her legacy, according to the directions of the will of Baltzer KunMe. A part of the money now in your hands for her use has been a long time, due, and a part has become due since tho death of her mother. If you refuse to apply her money for her use as the will directs, a suit will be brought against you to collect the money itself.
    “ E. Chapin, Attorney at Law.”
    
      July 12th, 1826,. Mr. Chapin, agent or attorney for Mrs. Bix■ler of Virginia, called on Mr. Christian Kunkle to know whether he was willing to pay Mrs. Bixler the legacy due her yet before and since the death of her mother, in cash or in' land without further trouble. His .reply was — “ No. Any thing you will get, you will get by the law;” and, “ push away.”
    .The same evening he called on Mr. Christian Gingrich, stated to him his businéss, and read him a copy of this paper. Mr. Gingrich replied that he had nothing to do with Mrs. Bixler, that they had paid her off.
    It was admitted, that on the first day of April, A. D. 1819, demand was made by the son of the plaintiff, with an order from Anna Mary Bixler, tor a balance alleged to be due; also on the 1st day of April, 1820, and on the 15th of July, 1822, at which said several times defendants refused to pay any thing. .
    
    If, upon the above statement of facts, the court should be of opinion that the plaintiffs are entitled to recover the principal and. interest of the share of Arina Mary Bixler, then judgment to be entered for the amount of the same in their favour. If the court should be of opinion that the plaintiffs are entitled to recover the interest, then judgment to be entered for the amount of the intei’est. If the plaintiffs are not entitled to recover, then'judgment to be entered •for the defendants.
    ' The suit was brought to recover the aforesaid sum of one thousand four hundred and forty-eight dollars and eight cents, with the interest thereon; that being the difference between the amount of Anna Mary's full share, and the sum paid' by the executors at the time of the release. - , ,
    The court below gave judgment for the plaintiffs for the amount of the interest.
    Opinion of Judge Bradford. — This was an action of assumpsit for two thousand dollars, for money had and received by the defendants to the use of the plaintiffs. The facts are to be taken as in the ease stated in the nature of a special verdict. On this verdict several questions have been raised for the consideration of the court. The plaintiffs found their claim on the will of Baltzer Kunkle, deceased. That part which is most material, is as follows: — “After the hand money and the money of my personal property is all equally divided, it is my will, that the yearly payments of my said yearly estate, shall be divided as follows — The first bond or payment coming due, my son Christian and my daughter Maria Elizabeth shall get; .the second, Catharine, intermarried with Jacob Coleman, and my executors in the room of my daughter 
      Anna Mary; and the third bond, my- daughter Eve, intermarried with Christian Gingrich, and the heirs of bis son Jacob, deceased,- and so on in rotation, until the whole of the money'of the said bonds is paid off: they, my said executors, are to draw my said daughter, Anna Mary’s whole share, until they can purchase real property with the same for her use, as her husband,' John Bixler, shall have no share of the same.”
    The plaintiff seeks to compel the entire execution of .the trust,created by the clauses of the will, contending, that thedefendants having, neglected and refused to invest the balance of monies in their hands, in land, for her benefit, she is entitled in this action to recover the principal and interest, in her capacity of cestui que trust. Having no court of chancery, we are urged to extend adequate relief to the plaintiff in this form of action. •
    If it conclusively appeared that there was no other resort for the plaintiff, and that if this action was not sustainable, she would be without remedy, I would endeavour to reach the justice of the case by its adoption. Small violences done to the common law form of action, would be of trifling import, if the end would be the substantial justice of the case.
    I have examined the Pennsylvania decisions having any bearing on this subject, and the result is unfavourable to the plaintiff on this point. In chancery, the obvious course of proceeding would be, for the plaintiff tó file a bill, praying that the defendants should be compelled to execute the trust, agreeable to the will,, and to account for the fund received. This would afford full and complete relief to the plaintiff on all parts of the case. The mode of proceeding here should be closely assimilated to the bill in chancery. This might be done by a declaration, setting out the will of Baltzer IJunhle, deceased, the amount of monies which have come to the executors’ hands, which ought to have been invested in land for the plaintiff’s use, the omission and refusal to effect the investment, and-the damage done the plaintiff thereby. This-would have formed a record,-bringing the real case before the court..- On a verdict being found -for the plaintiff, conditioned to be void on complying with-the provisions of the will within a reasonable specified time, an appropriate decree might be rendered. If this would have been the correct exclusive course of proceeding, to compel the execution of the trust, the form adopted, so far as relates to the principal fund, is defective. . ’ --
    In Pennsylvania, courts hold themselves bound to administer equity fin all cases where the forms of law do not restrain them. 8 Serg. & Rawle, 115. In Jordan v. Cooper, 3 Serg. & Rawle, 578, 587, the Chief Justice says, “ We- have no court of equity. What then is to be done? We may do as is done i-n other cases where the forms of the common law are inadequate to the occasion: we may form a declaration suited to the circumstances of the case. I sec no certain mode of doing equity to both parties, but by issuing a writ in the usual forrq, and permitting the declaration to partake so much of the nature of a bill in equity, as to set forth the truth of the case. To this the defendant may plead any thing which in law or equity will serve him; and thus, the parties may go to trial on the merits of the case.” Ib. 580. Justice Gibson coincides, and says ‘the plaintiff, addressing himself to the equitable powers of the court, ought to disclose such a case as will entitle him to equitable, relief; but if he sets out such a case as will entitle him to recover at law, he ought to prove such a case as will entitle him to recover at law. The facts, as they exist, ought,-in all cases where it is practicable, to be set forth.’ Ib. 581. . ;
    . Applying these principles to the declaration in this ease, can we say that it contains any thing but the general requisites of a count for money had and received? Has the plaintiff disclosed such a case as entitles her to equitable relief; or has she only set out such a case as will entitle her to recover at law? If the latter, then we have seen she is to be confined to what the law permits. The declaration demands two .thousand dollars in assumpsit; ■ but- the will directs that the principal fund shall not be paid to the plaintiff, but be applied to the purchase of land for her use. The money in the hands of the .executors is not to be paid to the plaintiff': she cannot have it in that form: it would bé a breach- of trust to pay it to her. There is no express contract proved; and the law will not imply an assumpsit, which would be' a breach of trust. The plaintiff is not entitled to take the fund out of the hands of the executors': the will gives them the custody of it, and directs' the appropriation of it. But until it is appropriated, the plaintiff is entitled to the interest.
    
      2. The release, executed by Bixler and wife to the defendants, of the date of the 3d of April, 1816, is set up in bar of the plaintiffs’ claim, both as relates to the principal and -interest of the fund in the executor’s hands.
    This release, having been made by cestui que trust to the trustee, will be operative for nothing more than-what has been actually paid. Executors cannot be allowed to purchase in the trust fund for their benefit. Trustees must be kept within the line of their duty. A court of equity watches the conduct of a trustee with jealousy; and if he compounds debts or mortgages, or purchases them, in at a discount, he shall not be* suffered to turn the speculation to advantage. 1 Johns. Ch. Rep. The precise amount of the fund, at the time the release was executed, and what more was to be. expected afterwards, was within the knowledge of the trustees; “And they cannot be allowed to use the information they obtain as-trustees, to purchase in1 the trust fund for themselves.” 3 Atk. 37. Courts will not construe a release as vesting any beneficial interest in the trustees. 1 Serg. & Rawle, 279, 280. 1 Vez. 9. 4 Vez. 129. 3 Fonb Eq. 189.
    
    
      This release contains an express “grant, bargain, and sale,” to the executors, of all the plaintiff’s right, title, claim, and demand whatever, under the will of the said Christian Kunkle, deceased, evidencing a direct purchase of the trust.fund for their benefit.
    The principle which governed the court in Say’s Executors v. Barnes, 4 Serg. & Rawle, 112, is applicable to this case. There it was held, that a receipt in full, given by a ward, when of age, to his guardian, was not conclusive, and did not stand in the way of a new settlement, although there was no concealment, fraud, or circumvention. The guardian was the trustee of the ward’s funds, which he was bound to account for to the cestui que trust, the ward. £iIf he received less than he might, the guardian paid him no consideration for the loss.” Here the trustees are in possession of a fund devised to a feme covert, and it is against equity for the defendants to retain money which came to their hands in their trust capacity, and for which they have paid no consideration. There is no evidence of any concealment but what arises from the nature and face of the transaction. Nor does it appear, on the contrary, that every thing relating to her father’s will and estate was exhibited to the plaintiff’s view. This is not the release of a debt due by the defendants to the plaintiffs, but a transfer of her father’s bounty to trustees, who had the possession of iij without consideration, to a considerable amount. A great advantage has been ¿taken of the plaintiff by the executors, and by the very persons who were bound to inform her of her rights. 1 Yecites, 312, notes.
    3. Although on the pleadings in this case the plaintiff cannot have judgment for the principal fund, I think she may recover the interest. Whatever sum remains in the hands of the executors, which they have received in trust for the plaintiff, under the terms of the will, they should pay the interest of. The interest is to be ascertained to the time of bringing the action. Executors and.other trustees are chargeable with interest, if they háve made use of the money themselves, or have been negligent, either in not paying over the money, or in not loaning or investing it, .so as to render, it productive. The time for which interest is to be charged in case of negligence, varies according to circumstances. Six months from the time the money was received is a reasonable period in most cases from which to charge interest against a trustee. 1 Johns. Ch. Eep. 508.
    The interest here is payable for the time the money came to the executors hands. The words of the will are, ££ paying to her, for her use, the interest of her said share, until they can purchase real property with the same for her use.” Evincing the intention of the testator, that the interest of the money should commence from the time it was received by them; if not immediately able to appropriate it in land, to pay interest to the cestui que trust. The will gives this legacy to the wife in the shape of interest, for her usei it is not on a footing of a charge of interest on the executors, for their negligence in not putting the fund to interest,.or for using it themselves. In such cases interest would be chargeable from a reasonable period after receipt, which the executors would have to invest the money in land.
    It being the opinion of the court that the interest only is recoverable in this action, we, also, think that the suit for it has been correctly brought in the name of Bixler and wife. The writ and declaration is, u Bixler and wife in right of said wife and for the use of said wife.” The money, when recovered, will be under the control of the court, who will see that it comes to the hands of the wife.- If the husband should receive it he will be held a trustee for the use of the wife, and she may dispose of it as she pleases,. 6 Serg. & Rawle, 467. The wife has power to release this accruing interest, devised to her, separate use, and might have appointed her husband to receive it if she pleased. 1 Pet. 116. 1 Serg. & Rawle, 275. She may, therefore, join him in a suit, for this claim, thus complying with the. law, by putting a responsible person on the record for costs. The action, according to the case cited in 6 Serg. & Rawle, 466, could be brought in the name of the husband and wife, and the husband could not release or discontinue the action. It might, as in the case of an irregular assignment of a chose in action, have been entered for the use of the person having the beneficial interest, the wife. 10 Serg. & Rawle, 210. flad this action been brought by prochein ami of the wife, the last book cited shows, that it would have been bad on a plea in abatement. It was therefore correct to join the husband and wife as has been done in this case.
    We give judgment for the plaintiff for the interest which occurred on these sums, which ought to have been invested in land, for the benefit of the plaintiff, down to the time of the commencement of this action, which, according to the documents submitted to the court, amounts to four hundred and seventy-five dollars and ninety-five cents.
    Each party took á writ of error.
    
      Burkee, for the plaintiffs in error.
    If the plaintiffs cannot, by a suit at law, compel the executors to do justice, they are without redress altogether. The defendants are not permitted to hold the money under pretence of a trust which they have constantly denied. On behalf of my clients, I assent to any condition which the court may impose to protect the separate interest of Mrs. Bixler. In further answer to the objection, that the money was not intended, by thé will, to go into the hands of John Bixler, I may say, neither was it intended to be held for ever by the executors as their own. But this, I submit, is not strictly a trust. There is no trustee in the will, nor any provision for the appointment of one. The land, if purchased, is Mrs. Bixler’s own, held in her own name, and she, with her husband, may dispose of it the next hour. So that if the money itself should be paid over to the plaintiffs without restriction, it would be but a performance in substance of the directions of the will. As to the form of the action, it is certainly as good for the principal sum as it is for the interest, both of which are claimed and held by the defendants as their own. Whoever, without a special contract, has the money of another, may be sued in indebitatus assumpsit. This is believed to be the general rule. It even lies to recover back money paid for an annuity not registered. The release is no impediment, procured, as this was, by a payment, to distant owners, of about half of their money, by those who would protect themselves under the name of trustees. The one thousand five hundred and fifty dollars, though not paid according to the will, we give them full credit for. He cited Say’s Executors v. Barnes, 4 Serg. & Rawle, 112. 1 Vez. 9. 1 Eq. Cas. Mr. 384. 2 Fonb. 189. 1 Johns. Ch. 22, 36.
    
      Wadsworth and Gardner, for the defendants in error.
    We do not admit, nor does the record show, that one thousand five hundred and fifty dollars was all the money paid, by the defendants in error, to the plaintiffs. The scrivener who drew the release, a man of first-rate probity, is now dead. All the facts were well known then by the parties. At worst, the release is voidable only, not void, and is confirmed by an acquiescence and delay of so many years. Even were we to admit the trust, and to admit that it is unexecuted, still the testator, who had a right to give the law to his own donation, and impose what terms he pleased, has expressly left it to the judgment of the executors when to purchase. If the plaintiffs cannot insist upon the money itself, then it goes into the hands of John Bixler in spite of the very words of the will under which he claims. But the action is wrong brought. J2ssumpsit for money had and received-lies not against an executor as such, on his own receipt. There is nothing like it in the law of England, or of this country. 6 Com. Dig. New Ed. Pleader, 2 B. 2. Clark v. Herring, 5 Binn. 33. Besides, the declaration should be special. Here are no facts of the case set forth: no means of notice to the defendants: no memorial which, in the case of a recovery, will show the debt paid, and be a protection againt another suit for the same cause. The point is expressly decided in Jordan v. Cooper, 3 Serg. & Rawle, 564, that to support a merely equitable claim, the facts which are alleged to constitute the equity, must be set out in the declaration. If the plaintiffs have a right to sue in any form, they must begin by a removal of the trustees under the act of 1825, Pamphlet edition, page 107. Where an act of assembly prescribes a remedy, it supersedes all other rules, whether of equity or of the common law, and must be strictly pursued.
   The opinion of the court was delivered by

Tod, J.

On the merits of the cause, as well as on the form of action and mode of redress, 1 am in favour of the plaintiffs. I think they are entitled to judgment for the whole debt and interest.

The release having been obtained from strangers residing in another state, obtained by executors and guardians, whose duty it was to protect the woman from imposition, gotten from her after they had sold all the testator’s lands, and well knew that they were paying to her but little more than half of her just share, is nothing. Such a release, thus gotten, is condemned by every case in the books. It is good for one thousand, five hundred, and fifty dollars, the money actually paid, and for no more.

Then, there is in the hands of the defendants a sum of money, amounting with the interest computed to the time of the trial, to one thousand, nine hundred, and forty-three dollars, and eighty-three cents. The defendants claim it as their own, having denied the trust, and still persisting in their denial. But their claim is most groundless; and the plaintiffs are entitled at least to the use and benefit of the money, in some mode beyond all doubt. In a ease of such manifest wrong, there must be some remedy. Wc haye no Court of Chancery to compel the defendants by attachment to purchase land for Mrs. Bixler. There is no court in the state that can use any compulsion in the case, except by issuing an execution for the money. One objection is, that these executors are trustees, and redress ought to be had by removing them and getting others appointed by this court, under the act of the 22d of March, 1825, (Pamph. p. 107,) or by the Court of Common Pleas, under the act of the 14th of April, 1828, (Pamph. p. 453.) Those acts of assembly appear to me wholly inapplicable to the present ease. Here is no accident of death, infancy, lunacy, or other inability of a trustee. Nor can a trustee’s pocketing the trust money as his own be in any possible shape considered as a renouncing or refusal to act. Nor could it ever have been intended that this court, or the Court of Common Pleas should, without a jury, pronounce a man a trustee of money which he claims to hold as his own. Even supposing new executors appointed, who, finding the same advantage to themselves, should insist on the same pretence of title, where would be the end, or how much nearer would these, plaintiffs be to obtaining justice than they were when they began? Besides, what would be the situation of an estate, where an executor should be removed from his office as to one of the children and •legatees of the testator, and continue executor as to all the rest? Further,'we have a plain act of assembly, (3 Sm. L. 296,) directing how and for what reasons executors may be removed from their office, not by us, but by the Orphans’ Court, — and not even by that court in any case whatsoever, provided they are willing and able to give security.

To the argument that this demand is founded on mere equity, and cannot be enforced by any form of action of the common law, I would say that ever since the time of Kennedy v. Fury, (1 Dall. 72,) in which a cestui que trust maintained an ejectment in his own name, and I believe long before, mere equitable rights have been every day recovered in our courts. It seems to me that the rules of equity have, by immemorial usage, become rules of property in our state, and cannot, I apprehend, be. now departed from without legislative authority. Cases need not be cited to show how rights purely equitable have been sued for with success in the forms of action known only to the common law, and how relief has invariably been granted wherever it could be granted in any way consistent with those forms; generally by the courts with the aid of a jury, — often without. Not only have conditional judgments repeatedly been given, but in the lessee of Matthews v. Akewright, (2 Binn. 93,) the court, on a general verdict for the plaintiff, and judgment thereon, ordered a stay of execution until the defendant should be secured in his title to another piece of land according to an article of agreement. In the case of Morris’s Executors v. M'Conaghy’s Executors, (2 Dall, 189, 1 Yeates, 189,) the court, on motion, directed a contribution among the several holders of lands bound by the same mortgage.

As to this money going into the hands of John Bixler, the husband, against the express directions of the testator, it is by no means necessary that the money should go into his hands; and if it were to go into his hands, the objection, perhaps, could not very fairly be made by these executors, who, by holding it ten years as to part, as their own, and denying the .trust, have left the legatee no choice but to submit to the injustice, or to sue in the only way in which .the law permits her to sue jointly with her husband. It will not follow from this opinion, that in every case of a legacy guarded like the present, and to be laid out in land, there can be a recovery of the money itself by an action. Here are many special circumstances. The great length of time — the obstinate denial of the executors — their claim of property — the grossness of the advantage which they attempted by procuring the release — the fact that Bixler, the husband, has already honestly laid out, not only all that he received from the executors, but one thousand seven hundred and fifty dollars more of his own money, in purchasing land in the name of his wife, to be held as her own according to the very letter of the will, and his offer here by his counsel, to let the money in question remain in court, to be laid out in the same way. All these things combined, seem to make the plaintiffs’ claim irresistible.

It is argued that assumpsit will not lie against executors, as such, for money had and received by themselves: nor will it. But here the naming the defendants executors in the writ, is mere surplus-age. The judgment is against them, de bonispropriis, and rightly so. This very point came before the court, and was decided in Ruble’s Executor v. Boileau (in error,) 10 Serg. & Rawle,208; and the same decision had been before given upon the same point in Wilson v. Wilson, 3 Binn. 557. I refer also to Gratz v. Simon’s Executors, 1 Binn. 588, and Crotzer v. Russell, 9 Serg. & Rawle, 78. It is a common mode of suing for a distributive share of the personal estate of the decedent. Yet perhaps it would be much better not to name the defendants, in such cases, as executors or administrators. It would avoid many difficulties, and much uncertainty, as to what judgments are binding upon the estate of the decedent. The form of the count is objected to, being general indebitatus assumpsit. It must be confessed that, at first yiew, the observations, in Jordan v. Cooper, 3 Serg, & Rawle, 580, of Tilghman, C. J., as also of Gibson, J., appears exceedingly strong against this form of declaration. But it now strikes me that those observations must be understood as referring exclusively to the action, then in hand, of special covenant, and to other similar cases. Here the money in dispute actually has been received by the defendants. In Miller v. Ord, 3 Binn. 384, a case depending altogether upon equity, and upon very complicated facts, this identical objection was urged by Mr. Dallas, and overruled by the court: Tilghman, C. J., delivering the opinion, and declaring general indebitatus assumpsit to be a count well calculated for the recovery of equitable demands: that in this state, where there is no Court of Chancery, they were bound to encourage those forms of action by which equity may be attained; and that to prevent surprise, from want of notice of particulars, it was the defendants’ business to demand a specification. But, supposing Miller v. Ord to be overruled by Jordan v. Cooper, which I do not believe, yet there appears another conclusive answer to the objection. We are deciding upon a case stated. The declaration is not before us. It is waved and superseded. The parties have agreed to put, and actually have put before us the facts of the case. True, the counsel did reserve their exceptions. But it is a reservation incompatible with the agreement. They cannot, at the very time they, are placing all the facts specifically upon the record, object because the facts are not specifically upon the record. It is an attempt to mix a special demurrer with a case stated. It is without precedent. It can be subservient to no one purpose of justice or law, nor productive of any thing but delay and vexation, thus to .entangle the merits of a 'cause with points of form relative to the wording of á declaration which both parties have agreed to set aside. In all but this one mátter I concur most heartily in the opinion delivered by the judge of the court below. The opinion of a majority of the court is that the judgment for the plaintiffs below and plaintiffs in error be reversed, and judgment be entered for them for the use of the plaintiff, Jlnna Mary, in the sum of one thousand nine hundred and forty-three dollars and eighty-three cents. And, with thé consent of the said plaintiffs, by their counsel-it is ordered that the money aforesaid be paid into the court below, to be laid out, under the direction of the eourt, in the purchase of land, for the said Atina Mary, according to the last will and testament of her late father, Bultzer Kunkle, deceased.

Gibson, C. J.

This action was brought b y Atina Mary Bixler and her husband, to recover a legacy bequeathed by her father to the defendants, his executors, in trust, to lay the same out in land for her use, paying her the interest in the mean time, as, to use the words of the testator, “ her husband, John Bixler, shall have no share of the same.” In pursuance of the trust, the defendants laid out fifteen hundred dollars in land; but having succeeded in procuring a release from the plaintiffs, now set them at defiance. This release is conceded to be void, and the question is whether the plaintiffs are to have judgment for the principal remaining in the defendants’ hands, or only for the interest.

A breach of trusi is not necessarily á forfeiture of the trustees’ right to possess and manage the fund. But one of two things then remains to be done; — either to take the fund into the hands of the court, and cause it to be invested according to the terms of the’will, or suffer it to remain in the hands of the defendants during the husband’s life, compelling them to pay interest pursuant to the directions of the testator. The latter is altogether practicable, and in strict accordance with the will, while the former cánnot be accomplished without exercising powers which have not hitherto been assumed by any court in Pennsylvania. It would be but another step formally to entertain a bill for specific execution. A power to decree a trust, or a contract specifically, would, no doubt, be a most salutary one; for the very case before us is an instance of the impotence of attempts to give entire effect to the principles of equity while trammelled with common law forms. Yet in the whole course of our juridical history, there is not an instance of an attempt to cast these forms off. The legislature have gone on the admitted principle, that forms of procedure, in derogation of the common law, cannot be adopted without a legislative grant, and that the constitution was framed on the same principle, is apparent from the clause which limits the chancery powers of the present courts to certain specified objects. It seems to me, therefore, we can give’ the plaintiffs nothing more than the interest, leaving the principal in the hands of the defendants, pursuant to the directions in the will.

Huston J. concurred with Gibson, C. J.,

Judgment reversed, and a different judgment entered, as stated in the court’s opinion.  