
    William S. Bodley, Executor of William Pescod, deceased, vs. John M. McKinney et uxor.
    At common law, where a power was given by will to executors to sell land, and one of them refused the trust, the others could not sell; in this state, however, the executors, or such of them as shall undertake the execution of the will, are by statute (H. & H. 413, § 90,) expressly authorized to sell the lands devised to be sold.
    In regard to the real estate of a testator, his executor at the common law was without authority ; without express direction by will, real estate did not enter into the course of administration; so that one empowered as executor to sell land, might exercise the power of sale, though he renounced probate of the will.
    In regard to the personal estate of the testator, it was different; co-executors, however numerous, are regarded in law as one person, and by consequence the acts of any one of them, in respect of the administration of the effects, are deemed to be the acts of all; for they all have a joint and entire authority over the whole property; so that in regard to the personal property, any one of several co-executors may do whatever all could do.
    A trustee who has renounced a trust, need not join in any sale or other disposition of the trust estate, or in receipts for the trust money; yet all the acting co-trustees must unite.
    P. by his will, required certain investments of money to be made for the benefit of certain legatees, and appointed “ B. & H. jointly his executors,” to carry into effect the objects of his will. H. renounced the office, and refused to qualify as executor; B. qualified, and took upon himself the execution of the will and of the trusts, and made the investments. Held, that the action of B. was valid, and within the authority conferred by the will.
    P. by his will, gave “ to the three daughters of T. the sum of four thousand dollars each, to be secured to them in the best manner possible, and the interest accruing thereon to be paid to T. for their support and education; moreover, till this donation be secured, to pay T. the sum of three hundred dollars per annum; this donation to be paid to each, when of age or married.” Held, that this was a general pecuniary legacy, and not a demonstrative one, and was a charge upon the whole estate of the testator.
    The executor having invested the legacies given in the above clause of the will, on bond and mortgage, on what was supposed to be adequate property; held, that the investment being for the benefit of the legatees, if it fails when properly made, the loss must fall upon the legatees.
    If an executor makes investments voluntarily for the benefit of legatees, which the court would, upon the application of the legatees, have compelled him to make, his act will be protected.
    P. by his will, gave certain pecuniary legacies, to be paid on the marriage or arrival at age of the legatees; and in case of the death of all the legatees before marriage or arrival at age, the legacies were to fall back into the residue of his estate ; he required the legacies to be “ secured in the best manner practicable,” and the interest to be paid to the mother of the legatees for their support and maintenance. Held, that the executor had authority to invest the legacies on bond and mortgage for the benefit of the legatees.
    If an executor be empowered by will to make investments, and he makes them without that degree of caution which men of ordinary prudence exercise in the management of their own affairs, it seems he will be individually liable, if a loss happens in consequence thereof; but the probate court would have no cognizance of such a question.
    On appeal from the probate court of Warren county.
    At the February term, 1845, of the probate court of Warren county, John McKinney and Ann Matilda Kinney, his wife, filed their petition, alleging in substance, that on the 27th of March, 1837, William Pescod died at the city of Havana, in the island of Cuba, having previously published his will, by which he bequeathed to the petitioner, Ann Matilda McKinney, a legacy of four thousand dollars, to be paid to her when she should marry or arrive at full age. That William S. Bodley, one of the executors named in the will, had become and was the sole acting executor; the other executor, William F. Benton, having refused to qualify. That the petitioners hacPinter-married, and had called upon Bodley for the legacy so bequeathed, who had refused to pay it. They therefore prayed for citation against the executor, to compel payment.
    The will of Pescod was made part of the petition. It is deemed necessary only to give an extract of those portions which affect the questions in controversy.
    After enumerating the various items of his property, and some general provisions for its disposal, the will adds as follows: “ I will and bequeath the above property in the following manner : 1st, I give and bequeath to the three daughters of Malinda Taylor, latterly residing in the town of Hamilton, state of Ohio, formerly of Yicksburg, Ann, Catharine and the youngest, name unknown, the sum of four thousand dollars each, to be secured to them in the best manner practicable, and the interest accruing thereon to be paid to Malinda Taylor, for their support and education ; moreover, till this donation be so secured to pay to said Malinda Taylor the sum of three hundred dollars per annum, from the first of January next. This donation of four thousand dollars to be paid to each when of age or married, and in case of death of all the parties mentioned above, said donation to revert to my legal heirs.”
    After several other bequests, the will concludes as follows : “ I give the services of my servant Ben, to William H. Benton, of the county of Warren, until he be twenty-one years of age, when it is my will that he be set free by the said Benton or his heirs. I give and bequeath to William S. Bodley my gold watch. I give and bequeath all the residue of my property, real and personal, to my legal heirs, viz. my mother, Catharine Pescod, sister Mary, and my nieces Jane and Catharine Murray, daughters of my sister Ann, deceased, (my mother and sister I presume to be living near Stonewich, or near the city of Car-lisle) ; but all correspondence with them to be addressed to the care of William Carruthers, residing at Stonewich, near Carlisle. To carry fully in effect all my above bequests, I hereby appoint Messrs. William F. Benton and William S. Bodley, jointly, my administrators, in witness whereof I have affixed my hand this day, twenty-seventh of March, eighteen hundred and thirty-seven. Wra. Pescod.”
    This will was regularly authenticated.
    The answer of William S. Bodley to the petition, admitted the identity of the petitioner, admitted the executorship as charged and the legacy as claimed, but stated that having received that sum out of the estate, on the second day of December, 1837, he loaned four thousand dollars to Henry W. Tick, secured by mortgage on real estate, with interest at ten per cent., in the manner and for the purposes specified in the mortgage, which was exhibited with the answer.. That in like manner on the 13th day of March, 1838, out of the estate he had loaned eight thousand dollars to John Thatcher and John F. Bodley, and secured- the same by their mortgage for that amount, with ten per cent, interest, for the purposes specified in the mortgage exhibited with the answer; that in his first’annual account with the probate court, he charged the estate with the twelve thousand dollars, thus “invested and secured in pursuance of the first item of the will, and the said account was accepted by the court.”
    That the property mortgaged in each case was at the time of the full value of the debts which it was intended to secure, and generally esteemed ample security for the same; that the borrowers were in good credit at the time, and generally deemed perfectly solvent for those amounts; that the mortgages were duly recorded, and constituted, what at the time was esteemed a full security for the ^investments; that in consequence of the investments, he paid to Malinda Taylor, out of the interest of the mortgages, the twelve hundred dollars per annum, instead of the three hundred, to which she was entitled for the use of the children, until the donation should be secured according to the will; that at this time the principal sums due by the mortgages and the last year’s interest were unpaid ; the interests for the previous years had been accounted for in the annual settlements, which were made part of the answer.
    That the full sum of twelve thousand dollars was invested, because it was thought the three children of Malinda Taylor were jiving; but that in fact the youngest child died before Pescod, and so the legacy lapsed; by which the petitioners became entitled to four thousand out of the twelve, while four' thousand would go to the residuary legatees.
    The respondent tenders the mortgages with his answer into court for the disposition of the court, but expressly “ insists that they constitute the remainder of the donation referred to in the first item of the will, invested and secured in conformity with the same.”
    The mortgages are exhibited with the answer. The first is executed by Henry W. Tick, of the first part, and William S. Bodley, executor of William Pescod, deceased, of the second part, on the 2d day of December, 1837, and recites as follows: “ Whereas by the will of William Pescod, deceased, it is made the duty of his executor to invest certain funds for the benefit of the infant children of Malinda Taylor; and the said executor being desirous to invest the sum of four thousand dollars, in part compliance with said provision, and having lent the same to the said Henry W. Vick, upon receiving this deed as security for the repayment of the said sum of four thousand dollars, at the end of five years from this date, and for the payment also of the sum of four hundred dollars annually, until the said repayment ; and the said Vick having accordingly executed his notes, bearing even date with these presents,” &c. The mortgage then proceeds to describe the notes and property mortgaged (a tract of land on Deer Creek), and concludes in these words: “ In trust, however, and for the purposes and on the conditions following, that is to say, if the said Vick shall well and truly punctually pay at maturity, each and every one of the notes herein before mentioned, to the said Bodley, his executor, administrator, agent or assign, then all contained in this deed shall become of no force and effect whatever. But if the said Vick shall fail to pay and satisfy at maturity any one of the said notes, then it shall immediately become lawful for the said Bodley to expose to sale the whole or any part of the premises above described, by public auction, at the city of Vicksburg, to the highest bidder for cash, on giving forty days notice of the time and place of sale, by advertisement weekly or oftener, in some newspaper published in said city; and to convey to the purchaser the said land or the part sold, and to apply the proceeds to the payment of the note or notes then due and unpaid.” The mortgage then provided for further sales if necessary, and for the payment of any ultimate surplus to Vick; it also authorized a sale by Bodley in person or by agent, either for the whole principal, or the instalment, on non-payment of either instalment.
    The second mortgage is made by Thatcher and Bodley to the executor, and is precisely similar to the first, except in amount, being for $8000; and its date, which was in March, 1838, and in the property, Bodley and Thatcher each mortgaged a lot; the former, one in Vicksburg; the latter, one in Port Gibson, Mississippi.
    The testimony of various witnesses was read by the petitioner.
    W. D. West proved that the lot mortgaged by John F. Bodley would now sell in cash for from fifteen to eighteen hundred dollars.
    Thomas Rigby proved, that property in Vicksburg in 1838 was greatly more valuable than at this time ; that it has depreciated at least three fourths since that time; that the lot mortgaged by John F. Bodley would have sold in 1838 for four times as much as at this time, on the usual credits, and for twenty-five per cent, less for cash.
    John Thatcher proved that the lot he mortgaged was once valued at $5,000; but was now worth hardly as many hundreds ; he could have sold it, in 1840, for $2,500; but now the house was dilapidated and out of repair, and he would take $1,000 for it; that in March, 1838, he and John F. Bodley were merchants in Vicksburg, in good credit and standing; that the property mortgaged by himself and partner was ample indemnity and security for the $8,000, loaned to them by the executor of Pescod ; that the house and lot in Vicksburg were presented to his partner, and the improvements on it cost him six or seven thousand dollars.
    Hardy Hendrew proved that the lot mortgaged by John Bod-ley is now worth $1,200; was worth, in 1838, from six to seven thousand dollars, part in cash and part on time; and was worth five times as much then as now; that he knew Bodley & Thatcher, in 1838. They were responsible merchants in good repute; that the credit sales of property in 1838, differed but little from the cash prices, interest being generally added in; that the paper money of the country was, in 1838, easily convertible into specie, being but one or two per cent, below par; property in Vicksburg, in 1838, had not begun to fall; that many of the sales of property which took place in that year and in 1839, did not realize anything, the notes not being paid, while other sales were fully executed; that property in Yicksburg did not materially diminish in value until 1840, when the banks flooded the country with post notes, and produced the depreciation ; that the sales which took place on a credit were inducement to strangers and others to buy; that in 1837 and 1838, there was a disposition apparent not to buy, but property remained firm, there being a falling off of confidence in the stability of the article.
    Henry W. Tick proved that the land he mortgaged lay about two thirds of a mile from Deer Creek; one fourth section of it upon Deer Creek itself; that five dollars in cash per acre, is the real intrinsic value of the land, and he would be tinwilling to take less ; that at the time he mortgaged the land to the executor, it was ample security for the sum loaned, and was so com sidered by every body ; that at the time of the mortgage he was in good repute in a pecuniary point of view, and his property now is sufficient to pay his debts.
    George Messenger proved that the lands lying on .Deer Creek, near the location of Col. Ticks, were worth six dollars per acre; those lying back were not worth so much; but he had never seen the particular land mortgaged.
    A. M. Winn proved that, in his opinion, the lot mortgaged by John Bodley was now worth $1,000 or 1,200; that he was in Yicksburg in 1838, and sold a lot near the one referred to for $12,000; and that the lot mortgaged by Bodley was worth, in 1838, ten thousand dollars, which was a fair valuation; that Thatcher & Bodley were merchants, in good repute and standing in 1838; that John Thatcher owned property opposite Bodley’s, which he sold for thirty thousand dollars, and also owned negro slaves at that time.
    Thomas Rigby proved that the children of Malinda Taylor, including the plaintiff below, were the reputed bastard children of the testator.
    It was admitted by the executor, that he had in his possesion, of the property of the testator, personal property unadministered to the extent of ten or fifteen thousand dollars besides real estate.
    The petitioners also proved that John F. Bodley had taken the benefit of the bankrupt law, and been discharged from his debts, including the debt in controversy, and that John Thatcher was insolvent.
    This was all the proof the petitioners made.
    The defendant then read his annual settlements and accounts with the probate court, from the first of which for the year 1838, it appeared that on the 2d December, 1837, he had collected large sums of money belonging to the testator, and on that day had credited himself with the four thousand dollars loaned to H. W. Vick; and on the 13th day of March, 1837, had invested the $8,000, with Thatcher and Bodley, and had filed with his annual account for the year 1838, as vouchers the mortgages which he exhibits with his answer to the petition.
    It also appears from the various annual accounts, that the executor received, from time to time, the interest on these loans; and paid it over to Malinda Taylor, according to the will.
    These various annual accounts, extending through a series of years, from 1838 to 1844, were received, examined, and allowed by the probate court, and ordered for record. Upon these facts the judge of the probate court decided that the prayer of the petitioner be granted, and that the executor pay to the petitioner out of any assets of the estate in his hands the sum of four thousand dollars, with interest from the time the legacy was first demanded, and also pay the costs of the suit out of the •estate.
    From this decision the executor appealed.
    
      Smedes and Marshall, for appellant.
    1. It was argued below, and will be pressed here, that the trusts of the will were imposed on both executors, and that the acting executor could not legally execute them. We refer the court to the following authorities, as establishing a contrary doctrine : Zebach v. Smith, 3 Binn. 69; Jackson v. Ferris, 15 John. R. 348; Bergen v. Bennett, 1 Caines’s Cas. 16 ; Franklins. Osgood, 14 John. R. 527; Nelson v. Carrington, 4 Munf. 332; Digges v. Jarman, 4 Har. & McH. 485; Osgood v. Franklin, 2 John. Ch. R. 20; Taylor v. Galloway, 1 Ohio 232; Peters v. Beverly, 10 Peters R. 532.
    Indeed this last case is so conclusive on the question that we might rest this point on that case alone; in that case the supreme court of the United States decide, that a mere naked power does not survive, but must be executed by all; while a power, coupled with an interest or a trust, does survive.
    2. It will be said, the will in this case directs certain things to be done, but does not directly empower the executors to do them; and that, therefore, a trustee should have been appointed by a court of equity. This, too, is an erroneous position. Wherever the testator directs his estates to be sold, or investments to be made, without declaring by whom, the executor, if the fund be distributable by him, will have the power by implication. Sugden on Powers, 167; lb. 172; 2 Story Eq. 320 ; Tyl-den v. Hyde, 2 Sim. & Stu. 238. Independent of this principle, the will, in this case, expressly designates who are to carry into effect all his bequests, and directly clothes the executors with the power.
    3. It will be contended, that the executor is personally liable for the deficit in the fund invested; and that the estate of Pes-cod having a resort to the executor, will not be injured by being a second time taxed with the payment of this legacy. To this two unanswerable responses may be made; 1. That the question of the liability of the executor to the estate of his testator cannot, in any degree, affect or connect itself with the liability of that estate to the petitioners; each case must stand on its own individual merits, and be adjudged by the law and facts applicable to it. 2. It appears to our minds clearly, from the record, that no personal liability could ever attach to the executor. He was directed, by the will, to “ secure the legacies in the best manner practicable ; ” the mode of security was left entirely to his discretion. He took bond and mortgage upon real estate; all the proof shows that it was ample security at the time; the subsequent commercial and monetary disasters by which the security has been impaired cannot subject the executor to personal responsibility. A trustee, who acts in good faith, is never visited with a harsh judgment. This court has decided' that an executor is not liable except for misconduct or fraud. Berry v. Parker, 3 S. & M. 625, In 1 Yesey, Jr. 41, the court expressly say, trustees are not answerable for having applied the trust property, even to what turned out a losing adventure, if without fraud or negligence. Wilkinson v. Stafford, 1 Yes. Jr. 41. So in Ryder v. Bickerton, 3 Swanst. 80, the trustee was authorized to put out money on the best security; he took only a promissory note, and the court held him liable, and said he should have taken a mortgage on land. To the same effect is Jackson v. Jackson, 1 Atk. 513, where an executor puts out money upon a real security, which there was no reason then to suspect, but afterwards such security proves bad, he is not accountable for the loss. Browns. Litton, 1 Peere Wms. 141; and see also Gibbs v. Herring, Prec. Ch. 49 ; Byrchell v. Bradford, 6 Madd. 13; Chambers v. Chambers, Fitzgib. 127.
    
    The decree of the probate court is express that the executor shall pay the legacy out of the funds of the estate; nor does the petition seek to render him personally liable; nor would the probate court be the proper forum for that end.
    4. The only other point is the only point in the case, in our opinion, which presents a doubt; nor do we think, a careful inspection of the language of the will, fairly leaves room even for a doubt on that. That question is, did the testator by his will authorize the legacy to the children of Malinda Taylor to be invested for their benefit by the executor, and has such an investment been made ? In other words, does the will direct a ;payment of the legacy to the children of Malinda Taylor, by an investment out of the funds of the estate for their benefit? Or, in still fewer words, has the legacy sued for been paid ? We take the affirmative of these propositions.
    They involve the true construction of the will of Pescod. That must depend upon its language and accompanying circumstances. The objects of the testator’s bounty, in the devise under question, were his three illegitimate children, all infants of tender years; his residuary legatees were his mother and sisters. 1st. That the language, “ to be secured to them in the best manner practicable,” with the instructions about the annual payment of the interest on “ the donation so secured,” imposed upon the executor the duty and trust to secure the donation in order to realize and pay over the interest, will hardly be denied. A testator, by showing his desire, creates a trust unless plain words or necessary implication defeat it. Malim v. Keighley, 2 Yes. Jr. 335, 529; Earl Bute v. Stewart, 1 Bro. P. C. 485; Paul v. Compton, 8 Yes. 380. Any words which indicate a request, wish, desire, recommendation of the testator, are sufficient to create a trust. Harding v. Glyn, 1 Atk. 469 j Brest v. Qffley, 1, Ch. R. 246.
    2d. It appears plain thus far, from the will, that the testator desired the legacies to his illegitimate children to be invested so as to yield an annual interest; if the words “ to be secured,” &c., left room for doubt, the subsequent language “moreover, ’till this donation be so secured, to pay to said Malinda Taylor the sum of three hundred dollars per annum,” &c., would seem to remove all ambiguity about the testator’s intention. He clearly directed the legacies to be invested for the legatees so as to secure an income for their support and education. An interpretation of the will, which accords well with the situation and necessities of the infant and dependent legatees. If the donation thus secured has become impaired or diminished in value, without fault of the executor, nothing is better settled than that the cestui que trust must bear the loss. See Chambers v. Chambers, Fitzgb. 127; 1 Chit. Eq. Dig. 578. A loss happening by the default of a trustee appointed by a testator, falls on the legatees, and the estate is discharged from it. Hutchinson v. Massareene, 2 Ball & B. 54; 2 Chit. Eq. Dig. 1311; Clark v. Foster, 8 Pick. R. 568. A trustee is never liable for any loss which occurs in the discharge of his duties, unless he has been guilty of negligence, malversation, or fraud. 1 Sto. Eq. 446, § 465; Byrchell v. Bradford, 6 Mad. Ch. R. 16; 1 Rop. Leg. 595, et sequentia.
    
    
      5. The whole question comes back to the point, did the will create a trust for the benefit of the legatee, constituting the executor a trustee quoad hoc? Would a court of chancery have declared the trust, if applied to by the executor 1 That court requires no particular form of words to create a trust; it looks only to the intent. Fisher v. Fields, 10 Johns. R. 495. And where the executor has done that which the court would have ordered him to do, it will always uphold and sanction it. Howe v. Dartmouth, 7 Yes. 150; Lee v. Brown, 4 Yes. 362. And in construing powers to an executor, they always consider everything necessary to accomplish the thing to be done, included and necessarily granted likewise; such means as are most usual, and such as ordinarily prudent and discreet men use in doing similar business, which the courts must, ex officio. notice, and, from their knowledge of the transactions and business of society, adjudge. 1 J. J. Marsh. 289, 290.
    6. An attempt will be made to liken this case to a bequest of a particular amount of stock, or rather of a particular sum, and the testator designates a particular fund or stock out of which it is to be paid; bequests which have given rise to considerable litigation and several nice distinctions between specific, general, and demonstrative legacies ; in cases arising out of which bequests the courts have held, notwithstanding the failure of the designated security, the legatee would be entitled to the whole of his legacy. The case in 2 Yesey, 640, and of Chaworth v. Beech, 4 Yesey, 563; of Innes v. Johnson, lb. 568; and of Raymond v. Brodbelt, 5 Yesey, 202, will be pressed in behalf of this view. Those cases are none of them, to our view, analogous to this. They were all cases in which the question presented was, whether, under the construction of the will in each case, the particular legacy was general or specific. If general, they determined it to be a charge on the general assets, and the failure of the fund referred to in connection with it not a loss of the legacy. The question of payment did not arise in any one of those cases. Here the legacy is palpably a general pecuniary legacy, beyond cavil; and the true question is, has it been paid or invested for the benefit of the legatee 1 
      The fund designated by the testator for its payment was the general assets; they have paid it once; shall they pay it again 1
    
    
      Alexander R. Depew, for appellees.
    1. I contend that it was the intention of the testator, as clearly expressed in the first clause of his will, to make provision out of his estate for the support and education of the three children of Malinda Taylor during their minority, and the payment of a legacy of $4000 to each of them as they arrived at full age, or married; that for this purpose he required the amount of these legacies to be secured to them in the best practicable manner, and the interest accruing thereon to be paid to the mother for the support and education of the children, and that this donation of $4000 should be paid to each when of age, or married.
    2. In the second place, I contend that the investment made by the appellant, in this case, was not legal, and can have no influence upon the demand made by the appellees for the payment of the legacy of $4000. The peculiar nature of the bequests to his executors shows the friendship he had for them, and the confidence he reposed in them. To one he gave his gold watch, and to the other the services of his favorite servant Ben, until he should be twenty-one years of age, when he should be emancipated. After all the bequests, the testator closes his will with the following provision, viz.: “ To cary fully in effect all my above bequests, I hereby appoint Messrs. William H. Benton and William S. Bodley, jointly, my administrators, in witness whereof,” &c. &c., clearly showing that he intended them to act jointly as his executors. I will venture the assertion that the learned counsel for the appellant, with all their research on this question, have not been able to find any case, either English or American, in which the testator has shown clearly, by the express language of his will, that he intended all his executors to act jointly, in the execution of the powers conferred by the will, where those powers can be legally executed, either by the survivor or sole acting executor.
    
      3. And in the last place I contend that, should the investment be deemed legal, the legacy demanded in this case is a demonstrative legacy or a pecuniary legacy, in the nature of a demonstrative legacy, and must be paid out of the estate of the testator in the hands of the appellant unadministered, if the fund provided for the payment has been called in or failed.
    This is a legacy of quantity, in the nature of a specific legacy of the kind denominated demonstrative, and must be paid out of the estate generally, if the fund intended for its payment be called in or fail. On this subject Williams, in his Treatise on Executors, is so full and explicit, that I will quote a paragraph directly in point, which is found on p. 838 of his 2d volume.
    
      “ A legacy of quantity is ordinarily a general legacy, but there are legacies of quantity, in the nature of specific legacies, as of so much money, with reference to a particular fund for payment. This kind of legacy is called by the civilians a demonstrative legacy, and is so far general, and differs so much in effect from one properly specific, that if the fund be called in or fail, the legatee will not be deprived of his legacy, but be permitted to receive it out of the general assets; yet the legacy is so far specific, that it will not be liable to abate with general legacies, upon a deficiency of assets.”
    He cites numerous authorities in support of this doctrine, among which are the following: Touchstone, 433; Ellis v. Walker, Ambler, 310; Chaioorth v. Beech, 4 Yesey, Jr. 555; Oillaume v. Adderley, 15 lb. 384; Smith v. Fitzgerald, 3 Yes. & Beam. 5; Mann v. Gapland, 2 Madd. 223; Fowler v. Wil-loughby, 2 Sim. & Stu. 358; Willox v. Rhodes, 2 Russ. Chanc. Cas. 452; Campbell v. Graham, Russ. & M. 453, together with many others in note y, at the foot of p. 838.
    
      Mason and Burwell, for appellees.
    1. For the appellees we insist, that the tender of the bonds and mortgages mentioned in the record were no satisfaction of the legacy given under the will. 1st. Because the appellant had no power under the will to make the investments in question, and that his acts were illegal and void, and so far as relates to the claim of the appellee, are no satisfaction or payment of their demand. 2d. That these bonds and securities tendered, even if appellant had power so to invest under the ■will, are no payment of the demand of the appellee, but that, according to the terms and intention of the will, the legacy of the appellee must be paid in full out of the assets of the estate in the hands of the executor.
    1. In the first place, the doctrine of “survivorship” is not properly in question. Bodley alone qualified, Benton never did. It has not a survivorship vested in Bodley by the withdrawal of Benton, and clothing him with the power in Benton originally ; but the case of a refusal of one of two joint executors to act, in which case it was well settled that the one could not act alone. Sug. on Powers, 162; 3 Mun. R. 345; Swin. on Wills, 406 - 408; 1 Ohio R. 233. To provide a remedy for this, a statute was passed in England, by which, when a power to sell lands was given to several executors, and a part only act, that those acting might execute the power, and before the passage of that act such was not the case, in that it differed from the case where ail act and during the time some die. In this state we have no statute except one authorizing executors acting to sell lands. H. & H. 413, sec. 90. In the case before us did the power to execute this trust for the children of M. Taylor ever vest? We think not. Benton refusing to act, the terms of the will were never complied with, and the terms of the common law are certainly not varied in this case, either by the English statute or by .our own, and this distinction is recognized in the case of Jackson v. Ferris, 15 Johns. R. cited by appellants.
    2. The case at bar is one of a trust of confidence, and requiring the exercise of a sound discretion in making certain investments in the best practicable manner, conferred, as the court will observe upon Benton and Bodley, by name and jointly. In the execution of this trust Benton might have joined, and yet not acted as executor. Swin. on Wills, pt. 6, sec. 3, (5). Also Taylor Sf Moyat v. Galloway, 1 Ohio R. 233. It was not virtuie officii, but a power delegated to two individuals, requiring the joint action of the two. Can a question of survivorship arise, when if we examine the power conferred and the attempted execution by one, it will appear that a right to its exercise never vested. Sug. on Powers, 166.
    3. So much for the naked question not connected with the other facts of the will, as showing the intention of the testator, but when the intention is gathered from the whole will we cannot doubt as to his wish. In one part of the will he bequeaths to Benton the services of his own servant, until he shall attain a certain age, when Benton is desired to set him free. This bequest will show the confidence reposed by the testator in Benton, then the bequest before the court is the making provision for his children, which he wishes done, as he expresses it, in the best practicable manner, &c., and “ to carry fully in effect this bequest, I hereby appoint Messrs. William H. Benton and William S. Bodley jointly as my administrators.”
    4. Without the words “ jointly ” this would have been a joint power from its terms, but so particular was the testator that he added these words, thus leaving, one would think, no room for doubt. Can a court,-then, when called upon to decree as to meaning of the testator, whose language it is called upon to interpret, say that when he named Benton and Bodley jointly, to execute this trust, that he intended one to act? Do we not find the situation of the parties, the nature of the bequest, and the circumstances of the case, all showing the desire and intention of the testator to have the benefit of the united wisdom and action of the two persons named, and are not the terms used the strongest that could be for that purpose? Nor can an adjudged case be found to contravene this interpretation, nor have the learned counsel, with all their reseach, cited one which does not admit and affirm it.
    [Counsel for appellees here reviewed at length the cases cited by counsel for appellant, to show that one executor could exercise the power of making the investment; and argued that they were, when correctly viewed, inapplicable, and wholly distinguishable from this case.]
    
      2. Upon the second point, we say, this legacy is to be paid in full by the executor out of the funds in his hands, in any event, being a charge on the whole estate, and that even though the investments we have spoken of, had been legally made, yet from depreciation or other cause having failed to pay the sum devised. The character and nature of this legacy have been fully examined by our colleague. We will only look at the intention of the testator as gathered from the will. The rule laid down by which we are to ascertain this, is to view the terms of the bequest, considered relatively to each other, conforming to their obvious meaning, and to the rules of law, all the parts of the will, the situation and circumstances of. the testator, and the subject-matter of the bequest. The exposition of the will being always governed by the intention of the testator.
    The testator was the father of certain children, whose peculiar situation would place them, if unprovided for, in a condition worse than could well be imagined. Girls, unprotected and cut off by their unfortunate position — and that position the testator’s own act — from all intercourse or sympathy with the better class of their sex, a mark, from the circumstances of the case, and of their birth, for the aim and pursuit of the libertine and seducer, and with but little to hope for, under ordinary circumstances, but a life of vice and degradation. The situation and circumstances of the testator are those of a parent who has wealth, endeavoring to avert this evil from these children by setting aside first a sum sufficient to educate and refine them, and when of age or married, providing a sum large enough to support them and place them beyond want or temptation. The circumstances and situation of the parties make this provision his first duty, not a doubtful or precarious provision, but one fixed and certain; nor can we doubt, from all these facts, that he must have meant that his estate was first to pay this debt, and then the residue to go to his family. What was the residue, but what should be left when the legacies were paid?
   Mr. Justice Clayton

delivered the opinion of the court.

This controversy grows out of the provisions of the will of William Pescod, deceased. The following clause is mainly involved in the dispute. “ I give to the three daughters of Malinda Taylor the sum of four thousand dollars each, to be secured to them in the best manner practicable, and the interest accruing thereon to be paid to Malinda Taylor, for their support and education ; moreover, till this donation be secured, to pay the said Malinda Taylor the sum of three hundred dollars per annum, from the first of January next. This donation to be paid to each, when of age or married, and in case of the death of all the parties abovementioned, said donation to revert to my legal heirs.”

After some other legacies, he gives the residue of his estate to his mother and other specified relatives, his legal heirs, and concludes by saying, “ to carry fully in effect all my above bequests, I hereby appoint William H. Benton and William S. Bodley jointly my administrators.”

Bodley alone qualified as executor, the other having renounced, and this petition was filed in the probate court of Warren, by the eldest daughter of Malinda Taylor and her husband, to have her legacy paid out of the estate. The answer of Bodley sets up as a defence, that he had, in pursuance of the directions of the will, loaned out four thousand dollars of the estate to Henry W. Vick, and eight thousand dollars to John Thatcher and John F. Bodley, and had taken mortgages to secure the payment of the same with interest, on property deemed ample at the time for the purpose, but which, by change of times, had become wholly insufficient. The answer tenders the mortgages in court, insists the appropriation was for the benefit of the legatees, and that the loss must fall upon them, and not upon the estate.

The probate court made a decree for payment of $4000, with interest, to the petitioners, from which an appeal is taken to this court.

In support of the decree it has been argued, that as Benton and Bodley were jointly appointed administrators of the will, Bodley alone was not authorized to make the loan in question — that a power to two executors jointly, cannot be exercised by one singly, and hence that the loss could not be made to fall on the legatees.

At common law, where a power was given by will to executors to sell land, and one of them refused the trust, the others could not sell. But the statute, 21 Hen. VIII. ch. 4, altered this rule, and provided that a sale by such of the executors, as accepted the administration of the will, should be valid. Sug. on Pow. 75; 2 Wms. on Ex. 686. Sugden remarks, that the liberality of modern times will probably induce the courts to hold, that in every case, where the power is given to executors, as the office survives so may the power ; and equity will interpose to prevent the consequences arising from the extinction of the power. Sug. on Pow. 78. A similar language is held in Peter v. Beverly, 10 Pet. 564. Our statute expressly authorizes, in such cases, the executors, or such of them as shall undertake the execution of the will, to sell the lands devised to be sold. H. & H. 413, sec. 90.

This provision, it is true, does not apply to a state of case like the present, nor was it necessary that it should. By the common law the authority of executors did not extend to land; without express direction by will, real estate did not enter into the course of administration. Hence, when power was given to executors to sell land, an exact compliance with the terms of the power was required. So distinct was the exercise of the power of sale, from the administration of the effects, that the persons named as executors might exercise the power of sale, though they renounced probate of the will. Sugden on Pow. 75. But it was different in regard to the personal effects. The co-executors, however numerous, are regarded in law as one person, and by consequence the acts of any one of them, in respect of the administration of the effects, are deemed to be the acts of all; for they all have a joint and entire authority over the whole property. 1 Lomax on Ex’rs. 358. From this it follows, that any one of the executors who qualifies, may do whatever all of them could do, if there be several, in regard to the personal estate. In this respect, the rule is the same in reference to trustees. Although all the acting co-trustees are required to join in acts concerning the trust estate, yet a trustee who has disclaimed or renounced, need not join in any sale or other disposition of the estate, or in receipts for the trust moneys. Adams v. Taunton, 5 Mad. Rep.; Hill on Trustees, 307. Our conclusion therefore, is, that if both the executors were empowered by the will to carry into effect the direction to secure these legacies to the legatees, either of them who qualified might do it.

It is next insisted that these are demonstrative legacies, and that if loss has resulted from the investment, it must be borne by the estate, not by the legatees. This species of legacy, is a legacy of mere quantity, or of so much money, to be paid out of a specific fund appropriated for the purpose. 2 Wms. on Ex. 338; 2 Lomax, 35. It is very clear, that these legacies are not of that description ; no particular fund was set apart by the will for their payment, but they stood as a charge upon the whole estate. In such case if the investment fail, if it were properly made, the loss falls upon the legatee. Clark v. Foster, 8 Met.; 2 Ball & Beat. 54.

To hold differently in this case, would be to tie up all the other legacies contained in the will, until the time for the payment of these arrived! These legatees would have had a right to compel the investment of their legacies, according to the directions of the will. 2 Wms. on Ex’rs. 1004. If the executor voluntarily did that which the court would have compelled him to do, his act will be protected.

The only remaining inquiry is, whether it was competent for the executors to lend out the fund upon mortgage for the benefit of the legatees. This must depend upon the intention of the testator, as declared in the will.

The legacies were not absolute, but conditional, dependent on ■the marriage, or arriving at age of the legatees. If all died before the happening of either of these events, the legacies were not to be paid, but were to sink into the residuum. Cross remainders by implication, seem also to have been intended. Until the time of payment should arrive, it was the intention, that the legacies should be secured, and the interest only, paid annually to the legatees. The will itself says, “ to carry fully in effect all my bequests, I hereby appoint Benton and Bodley jointly my administrators.” It could not be known, until the contingencies happened, whether or not the payment of the principal was ever to be made; until that time the- intention seems to have been, to leave the fund- under the control and management of his executors. Otherwise they could not carry fully into effect all the bequests.

It may be that the lending out the money, was to be done in the character of trustee, but that would not vary the principle. The act of the trustee would bind the legatee.

This opinion, of course, applies only to the case in its present shape. If there were any want of good faith on the part of the executor, or an absence of that degree of caution which men of ordinary prudence exercise in the management of their own affairs, then another question as to the personal liability of the executor may arise. Of such question the probate court has no cognizance, and consequently it cannot enter into our consideration at present.

The decree of the probate court is reversed, and the decree directed to be so modified, as to require the executor to pay to the petitioners, whatever sum can be collected of the investment made for the legatees that amounts to their proportion.

The costs of the court below to be paid by the executor out of the estate.  