
    REED’S APPEAL.
    Where - testator hos directed an estate to be accumulated for his-grandchildren until a certain period, the Court may apply a portion thereof to the maintenance and education of the legatees, where the parents have not sufficient ability.
    Appeal from the Orphans’ Court of Lancaster County. No. 58 July Term, 1884.
    
      The facts of the case appear in the opinion of the Orphans’ Court, which was as follows, per:
    Livingston, J.
    On March 18, 1884, a petition was presented by Mary Ann, Clara I., and Charles F. Edwards, minor grandchildren of Charles Edwards, late of the City of Lancaster, in said county, deceased, by their next friend, Robert E. Bruce, in which their father, George J. Edwards, and mother, Irene C. Edwards, joined them, setting forth that Charles Edwards died about March 21, 1882, leaving a will, in and by which he directed, inter alia, as follows:
    “I order and direct my executors to invest the clear balance of my whole estate, real, personal and mixed, remaining after all debts, expenses and proper charges are deducted, in such securities, and at such rate of interest, as my said executors, or the survivor of them, in their discretion may deem proper, and the interest or income thereof to re-invest in like manner as aforesaid during the lifetime of my son, George J. Edwards.
    “And I order and direct my said executors, or the survivor of them, to pay unto my said son, George J. Edwards, in monthly payments, for his maintenance and support, and not in any way or manner to be subject or liable to his debts, such sums as shall not in any year amount to over three hundred dollars.
    “And after the death of my said son, George J. Edwards, 1 give and bequeath all my estate in the hands, and held in trust by my said executors, or the survivor of them, unto all the lawful child or children of my said son, George J. Edwards, or to their heirs or legal representatives.”
    And, of his will, he appointed George K. Reed and Peter M’Conomy the executors. Peter M’Conomy has since died, leaving George K. Reed the surviving executor.
    That in his last illness, after the execution of his will, and about a week prior to. his death, Charles Edwards called George K. Reed, one of his executors, to his bedside, and in the presence of witnesses requested and instructed him, “That if he (Charles Edwards) had not given George enough, he (Reed) should give him more;” and to this Mr. Reed asented.
    That George J. Edwards, the father of said gran’children, is without any means to support and educate them according to their future expectations and circumstances.
    That their mother is in feeble health, and unable to support them by her labor, and has no estate or income of any kind to save herself and them from absolute want and distress.
    That Charles Edwards left an estate of about $40,582.48, which under the terms of the will, will produce interest or income to the amount of about $2,000 annually.
    That said Charles Edwards, the testator, made no provision by his will for the maintenance and education of his said grandchildren; and being in absolute want, and destitute circumstances, they pray the Court to direct and decree an adequate allowance from the interest and income of said estate for their maintenance and education.
    Upon the presentation of this petition a rule was granted to show cause why the prayer of the petitioners should not be granted.
    To this rule George K. Reed, the surviving executor, on March 20, 1884, filed an answer, in which he admits that Charles Edwards died on March 21, 1882, leaving a will which has been duly proved, and of which he is the executor, and in which are contained the several items set forth in the petition of complainants. That in his last illness, the testator, in a conversation with him, said that if the legacy given by him to his son George was not sufficient for his comfortable support, that he should give him more. That, he is informed, and believes, that George J. Edwards, the son of testator, and father of petitioners, is without means to support and educate his said children as they should be maintained and educated in view of their interest under the will of their grandfather, Charles Edwards, deceased — but he avers and believes that his inability to so maintain and educate them is caused by his intemperate and confirmed habit of drinking intoxicating liquors, which was known to testator at the time the will was executed. That the assets of the estate of testator in his hands amount to about $40,582.48. And he submits that the matters contained in the petition are matters for which the complainants are not entitled to relief from the Court, and he asks to be dismissed with reasonable costs, etc.
    On the presentation of said petition an Examiner was appointed to take testimony in the case and report the same to the Court.
    From the testimony reported by the Examiner it is shown to the Court that Mary Ann Edwards was born on the 31st day of July, A. D. 1876.
    Clara Irene Edwards, on November 26, 1878; and
    Charles Francis Edwards on October 17, 1880.
    That George J. Edwards, their father, is about thirty-three years old, and is by occupation a printer, but has been out of employment almost constantly for the last six years; that, in reality, he is an habitual drunkard, and by reason thereof can obtain no permanent employment; that neither he nor his wife, who is about twenty-five years of age, have any estate, money or property to apply toward the maintenance and education of said children; that he is wholly unable to maintain and support his wife and children; that they have been for some time past in penury and actual want, suffering for want of the necessaries and comforts of life, the children actually running barefooted in February and March of the present year, and being frequently without anything in the house to eat, and without money to procure food and clothing — the judgment of the witnesses examined being that it would require fifteen hundred dollars a year to maintain, clothe and educate them as they should be, considering their prospects and estate, etc.
    Since the filing of the petition and answer, on petition of George J. Edwards, the father, Robert E. Bruce was, by the Orphans’ Court, duly appointed guardian of said minor grandchildren of Charles Edwards, and, as their guardian, now joins in this application for maintenance for them.
    The language of the testator is: “I order and direct my "“executors to invest the clear balance of my whole estate, real,” ■“personal and mixed, remaining after all debts, expenses” “and proper charges are deducted, in such' securities, and at” ■“such rate of interest as my said executors or the survivor of” ■“them in their discretion may deem proper, and the interest” “or income thereof to reinvest in like manner as aforesaid,” ‘“during the lifetime of my son, George J Edwards.”
    “And I order and direct my said executors, or the survivor” '“of them, to pay unto my son, George J. Edwards, in month-” “ly payments for his maintenance and support, and not in” “any way or manner be subject or liable to his debts, such” ‘“sums as shall not in any year amount to over three hundred” “dollars.”
    “And, after the death of my said son, George J. Edwards,” “I give and bequeath all my estate in the hands and held in” “trust by said executors or the survivor of them, unto all the” '“lawful child or children of my said son, George J Edwards,” “or to their heirs or legal representatives.”
    On argument it was admitted that the interest of these grandchildren, under this will, in this estate, is a vested ijiter■est in them, and absolute.
    In Greenwell vs. Greenwell there was a devise to an infant grandson, at twenty-one, with accumulations in the meantime, with similar limitations in case of his death under twenty-one to his sisters, their father being dead, having left all his property, which was inconsiderable, to his wife, who married a person in low circumstances. Maintenance was decreed without an inquiry (by an examiner) whether it was 'for the benefit of the infant or not, the Court judging of that; 5 Ves. Jr. 194.
    In Cavendish vs. Mercer there was a residuary bequest to a very large amount in favor of infant grandchildren, payable at twemy-one, or marriage, with survivorship, the interest to accumulate and he paid with the principal, and in case of death of all before the time of payment, over to their mother absolutely. The father’s income, though considerable, bearing no proportion to the fortune bequeathed, and there being several children, the Court directed maintenance, taking the consent of the mother; 9 Ves. 470.
    In Fendall vs. Fash, in Chancery, there was a residuary bequest in favor of infant grandchildren, payable at the age of twenty-one years, or marriage, to the issue of those dead, with survivorship and accumulation until the time of payment, and •a limitation over absolutely in case of the death of all without issue before that time. The father, in consequence of bankruptcy, being wholly unable to maintain his children, there was maintenance directed by the Court, taking the consent of the persons to whom the property was given over; 5 Ves., Jiv, 194, note, decided in 1779.
    If the father is in indigent circumstances, and the children are wealthy, the Court will allow for maintenance. Myers vs. Myeirs, 2 McCord, 225.
    Courts of Equity will allow interest for maintenance to infant legatees, and this, though there is a direction for the accumulation of the interest for the benefit of the common fund; and although the infant legatees have a father living, but without sufficient ability to support and educate them according to their future expectations; Errat vs. Barlow, 10 Ves., Jr., 202; 9 Ves., 470; 10 Ves., 41; 4 Madd., 275.
    
      In re Cotton: Where a fund was bequeathed upon trust for all the children of A who should attain twenty-one, in -equal shares, and if there should be but one child, then for that child, and A died leaving one infant child, it was held that the income of the fund might be applied in the maintenance of the child; 1 Chan. D., 232.
    Thus it will be seen that in England Courts of Equity, for at least a century, while fully recognizing the common law obligation of a father to support his children, and generally refusing him assistance from their estates, have, where the father is without estate o,r means, or without adequate means to maintain and educate them according to their future expectations, made an allowance out of the interest or incomes of the children’s estate for that purpose, at first, on the judgment of the Court alone. More recently, however, after the report of an examiner or master, and testimony taken, showing the necessity and propriety of such allowance, and in cases of clear and manifest urgency, have not hesitated in breaking into the principal of a vested legacy, for the purpose of educating an infant legatee; i Ves. Jr., 255; 1 P. W., 23.
    The Courts of Pennsylvania appear to have followed- the practice of the English courts with reference to this class of cases. In the matter of the petition of Charles Potts it was held that a trustee would be justified in appropriating the interest or even part of the principal of a fund placed in his hands for accumulation in trust for a minor, until such minor arrives at full age, for his maintenance and education, where there is no other property of the minor adequate for these purposes, where the minor is of tender age, and without any parent living, there being no devise over, and no third person interested in the fund; 1 Ash., 340. -
    In Corbin vs. Wilson it was held that where a legacy has been given to an infant absolutely, payable at full age, with' no devise over, and no third person in any way interested in' praesenti or in futuro in the- fund, a court of equity would compel a trustee, holding such a fund, to appropriate or pay the interest where the legacy carried interest, or even the principal, where it did not, for the support, education and advancement of the infant. In this case the legacy was given by a grandfather; 2 Ash., 178. (1837.)
    In Neport et al. vs. Cook et al., under the will of a grandfather, education to minor grandchildren was decreed, where the legatees composed a class, some of whom would absolutely 
      take the fund, and all had a common interest in it, and an equal chance of taking or surviving, although there was a direction in the will for the interest to accumulate for the benefit of the common fund, and although the infants’ legatees had a father living, but not of sufficient ability to educate them according to their future expectations in life; the legacies given to the granchildren being a vested interest, but postponed as to payment until the first grandchild should arrive at the age of twenty-three years, with an executory limitation over, in the event of the death of either without leaving issue; 2 Ash.,. '332; see also Clark vs. Wallace, 48 P. St., 80; 19 P. St., 49.
    In Norris et al. vs. Fisher et al., in equity, maintenance was decreed to adult grandchildren, legatees, where their legacies were vested, but the period of enjoyment postponed until the youngest grandchild should arrive at full age, the legatees being without adequate means of support in the interval. These cases were all decided by King, President, who relies upon the English cases above cited, and quotes them as authority; 2 Ash., 411.
    In Seibert’s Appeal, the Supreme Court say: Whether a legacy by a parent to his children, or grandchildren, be vested or contingent on their arrival at lawful age, the legatees during their minority may have, out of the interest, an allowance for their support and education decreed by the Orphans' Court; and the same doctrine is applicable, where the legacy has been given by one who has put himself in loco parentis. The grandfather, as well as the father, being required by the Act of June, 1836, Sec. 28, P. Laws 547, to relieve and maintain his grandchildren, when their necessities require that he should do so; 19 P. St, 49.
    In the estate of Annie D. Washington (Paxson J.). ■where a testator having by his will limited the amount to .be paid his daughter during her minority, and directed the accumulation of the surplus to be capitalised, on application made by her guardian for additional allowance out of the accumulating income. Held, that the direction in the will to accumulate was void under the Act of 18 April, 1853. And the reasons for the increased allowance being approved, the additional allowance decreed; 8 Phil., 182; 25 Smi., 102.
    In Leiby’s appeal, the Supreme Court say: Where a sum of money is settled upon a minor granddaughter, the Court will make an order for maintenance out of the income, though there be a gift over in the event of her death under age; 49 P. St., 182.
    An allowance will be made by the Orphans’ Court out of a minor’s property for support, where it appears that the father is unable to maintain the minor, or that the fund in question is the only means. Wood’s Est., 13 Phila., 391; ■Sober’s Est., 39 Leg. Int., 208.
    The Act of 18 April, 1853, declares: “That notwithstanding any direction to accumulate rents, issues, interests and profits, for the benefit of any minor or minors, it shall be lawful for the proper Court as aforesaid, on the application of the guardian, where there shall be no other means for maintenance or education, to decree an adequate allowance for such purpose, but in such manner as to make an equal distribution among those having equal rights, or expectancies, whether at the túne being minors or of lawful age. Proviso, Purd., 1245, PI. 9; Furness’s Est., 41 Leg. Int., 175.
    The sum to be allowed for the maintenance and education of an infant is exclusively within the discretion of the Orphans’ Court. It is in the discretion of the Court to direct payment by the guardian of a ward’s income to the father of the minor for maintenance; Killion’s Appeal, 3 Brews., 235; Seaver’s Estate, n Phil., 1.
    The Orphans’ Court has full jurisdiction and authority to make such allowance in all cases of testamentar}» trusts; Clark vs. Wallace, 12 Wr., 80; Brown’s Appeal, 12 P. St., 3331 Wapple’s Appeal, 24 Sm., 100.
    We have, in the case before us, three minors of tender age,, having, as the testimony shows, a father, who has no estate, and is wholly unable to maintain and educate them as they should be, considering their prospects and expectancies in life; that these children have been for some time in actual penury and want, without sufficient food or clothing, suffering-for the want of necessary comforts of life, and without means to procure the same; they compose a class to whom an estate-is bequeathed, and in whom it is vested. Some of them will eventually and absolutely take the fund, and all have a common interest in it, and an equal chance of taking or surviving, although there is a direction in the will for the interest to accumulate for the benefit of the common fund until the death of their father, the time fixed for distribution. We have seen from the decisions of the Courts and the several Acts of Assembly cited, that on the application of their guardian, now made, we have the power to relieve their wants and necessities, by decreeing a suitable allowance out of the incomes of the bequest to them, to their guardian, for their proper maintenance and education, and have, using our discretion, authority to fix and direct -what sum shall be so paid for that purpose^ After a careful investigation of the whole case we are satisfied, that while it is absolutely necessary for the health, welfare and benefit of these infants, that allowance should be decreed for them, the sum stated by the witnesses, in the testimony reported by the learned Master, is too high for the present, as they are very young, and that the sum of one thousand dollars will be ample for one year. We have concluded to: make an order for that sum, instead of the fifteen hundred dollars mentioned in the report.
    George K. Reed, the surviving executor of Charles Édwards, deceased, then appealed to the Supreme Court, assigning the entry of the foregoing decree for error.
    
      
      H. C. Brubaker and J. B. Good, Esqs., for appellant,
    cited Harvey vs. Harvey, 2 P. Williams, 21; Corbin vs. Wilson, 2 Ash, 199; Seibert’s Appeal, 19 Pa., 52; Leiby’s Appeal, 49 Pa., 182.
    
      J. N. Brown and H. R. Fulton, Esqs., contra,
    
    relied on the Opinion of the Orphans’ Court.
   The Supreme Court affirmed the decree of the Orphans’ Court on June 2nd, 1884, in the following opinion:

Per Curiam.

This decree is well sustained by authority. It orders the payment to the grandchildren of the testator of a portion only of the interest and income of the estate of the deceased; Seitz’s Appeal, 87 Pa., 159. The authority to so decree is also given by the Act of 18th April, 1853, P. Laws, 507, Pur. Dig. 1460, Pl. 9.

Decree affirmed and appeal dismissed at the cost of the appellant.  