
    [Lancaster,
    June 7, 1824.]
    SHAW against M‘CAMERON, and another, Administrator of SCOTT.
    IN ERROR.
    Testator devised to his only child one half of his estate, real and personal, and directed his executors to put it out at interest, during her life, and pay the proceeds to her, with power to dispose of the principal by will. “ The rest or remaining part," he gave to his brothers and sisters. Held, that the child took one half of the clear estate, without deduction or account of debts, which were to be considered as paid out of the residuary part devised to his brothers and sisters.
    On the death of the executors, intestate, the trust does not vest in the administrator of the surviving executor, but the child, being an unmarried woman, is entitled to the immediate possession of the fund. It seems that whe' e the cestui que trust is a feme covert, her husband would not be permitted to touch the fund, without securing it' to her precisely as it stood in the hands of the trustees.
    A decree of the Orphans’ Court, confirming the settlement of an administration account, from which a balance appears to be in the hands of the executor, does not possess the chaiacter of a judgment, so as to entitle the person to whom the balance is due, to come in, as a judgment creditor, on a deficiency of assets.
    Upon a general plea oí plene administravit, the jury have no right to apportion the assets; but must find for the plaintiff to the amount of all the assets remaining unadministered. Where an executor has assets, but not sufficient to pay all the debts, he can protect himself only by pleading a special plene administravit, of all beyond a sum sufficient to satisfy debts of a higher nature, and to pay other debts of equal degree, their proportions.
    On a writ of error to the Court of Common Pleas of Dauphin county, the case was this:
    
      Elizabeth Shaw, the plaintiff in errror, brought this action against John M‘Cameron and Mary Scott, administrators of James Scott, deceased, for money had and received to her use, by the intestate. The plaintiff’s claim was founded on a bequest in the will of her father, John Long, in these words:
    “ Item, To my only daughter, Elizabeth, I leave and bequeath the one half of my real and personal estate, what it will amount to in money to be put to interest, for her sole use during life, by my executors, which interest she is to receive as it becomes due; likewise my said daughter Elizabeth, to have at her will, to bequeath or will to whom she pleases, the one half of the principal or interest after her decease; the rest or remaining part of my estate, real and personal, not heretofore bequeathed, I leave to my brothers and sisters as follows,” &c.
    The testator appointed James Morrison and James Scott, executors, both of whom died intestate, without having executed the trust, and this suit was brought against the administrators of the surviving executor, one of whom, Mary Scott, died before the trial. The defendants pleaded non assumpsit and payment, no assets, and plene administraverunt, on which pleas the cause was tried.
    The counsel for the plaintiff requested the court to instruct the jury upon the following points.
    
      1. That the plaintiff is entitled to recover one .half of the whole estate her father died seised and possessed of, free and discharged from all debts and legacies.
    
      Opinion. — The debts are to be first paid. The plaintiff then acquires an interest in one half of the estate, and her half is to be put out to interest for her use, and the legacies are to be paid out of the other half.
    2. That there being no bequest over, the money vested in her, and she is entitled to recover it in this suit.
    
      Opinion. — She can recover nothing but the interest.
    3. That the trust never having been executed by the executors of John Long, both of whom died intestate before the institution of this suit, the administrators of the surviving executor could not execute the trust; which can be executed only by the plaintiff, who is now the administratrix de bonis non of the testator.
    
      Opinion. — After the death.of the surviving executor, intestate, the trust vested in his administrators, the defendants. The trust does not vest in the plaintiff, the administratrix of John Long, the testator.
    4. That the decree of the Orphans’ Court on the balance of the estate in the hands of John Long’s executors, makes this a debt of record, which is to be regarded a judgment, and paid out of the assets, in preference to specialties, and simple contract debts.
    
      Opinion. — -The balance in the hands of Long’s executors, as appears from the records of the Orphans’ Court, is a debt; but it is not a debt in the nature of a judgment, aud is not entitled to be paid out of the assets, in preference to debts by specialty and simple contract.
    5. That John M*-Cameron is bound to pay interest on the balance appearing to be due on the settlement of his account, as administrator of James Scott: That keeping- the money by him- eleven years, is an unreasonable delay, which renders him liable to pay interest, whether he has made interest or not; and if he has made interest, he is liable at all events, to account for it.
    
      Opinion. — John M(Cameron is bound to pay interest on the balance in his hands, of the account settled by him as administrator of James Scott, and it rests with him to satisfy the jury, that he had a reasonable excuse for not paying it. If he does not do this, he ought to pay interest, whether he has received interest for it or not
    6. That under the pleas in this cause, the jury are bound to find the whole amount of the assets, now in the hands of the defendants, and cannot apportion them, either between the judgment creditors, the creditors by specialty, or by simple contract, if any such there be.
    
      Opinion. — Upon the issues in this cause, the jury are to find the whole amount of the assets now in the hands of the defendant, and how much the plaintiff is entitled to receive. The administration account, the report of the auditors, and other evidence given, will inform the jury of the a ..ounl of the money due by John MiCameron, as administrator, and also, of the several creditors of the estate of his intestate.
    The jury returned a verdict, by which they found assets in the hands of John M'Cameron, the defendant, to the amount of 1,822 dollars 90 cents; that the plaintiff’s share of her father’s estate was 1,829 dollars 44 cents, being the interest on the legacy to her in his will, and that her proportion of the assets was 488 dollars 8 cents, which latter sum, they found for the plaintiff, with six cents damages and six cents c ists.
    The counsel for the plaintiff,-having excepted to the opinion of the court, the cause came into this court by writ of error, where it was argued by Fisher, for the plaintiff in error,
    who cited Salk, 210. 11 Johns. 16. 14 Johns. 446. 4 Burr. 2018. 1 Str. 188. 2 Fern. 281.
    
      Ellmaher and Elder, contra,
    referred to 6 Serg. 4" Rawle, 77.
    
   The opinion of the court was delivered by

Gibson, J.

John Long devised to his daughter Elizabeth, the. •half of his estate, real and personal, and directed his executors to put it out at interest, during her life, and pay the proceeds to her. The rest, or remaining part,” to use his own words, he gave to his brothers and sisters; and the question is, whether the daughter is entitled to the half that remains after payment of the debts, or whether the debts are to be considered as having been paid out of the residuary part devised to the brothers and sisters. Actual intention of the testator is out of the question. It is probable, the matter never was the subject of his thoughts, and we are compelled to look for intention where none in fact exists.

In the absence of clear, actual intention, and where the devise is a provision for a child, the construction ought to be as favourable as the words will bear; and the word estate, may well mean what a man has in possession, without regard to the state of his debts ; and in common parlance, it is usually understood so, although strictly speaking, it means what he has clear of demands against it. In relation to the real estate, the question would be clearly with the plaintiff who is the heir at law, and could not be disinherited, except by plain words. Another strong feature is, that the devise to the brothers and sisters, is of a residuary nature; and residuary bequests generally bear the burthen of the debts. But 1 found my opinion chiefly on the consideration, that the bequest to the plaintiff is a provision for a child, which will always be decreed as favourably for the child as the words will bear.

The daughter was empowered to dispose of her half by will; but, the executors were directed to put it out at interest during her life, and pay her the proceeds. The executors are both dead, and from this has arisen a question, whether at the death of the survivor of them, the trust vested in his administrators, or whether the daughter is entitled to the possession of the fund. It is perfectly clear, that the trust, which was a personal confidence in the executors, did not vest in the administrator of the survivor of them,* for the same reason that the administrator of an executor is not the ex-cutor of his intestate’s testator; and it is as clear, that the daughter is entitled to have immediate possession of the fund. Chancery will never suffer a trust to fail for want of a trustee, and although, we cannot arrive at exactly the same result,- we approach it as nearly as we can, by delivering the fund, to the cetuique trust. There might be a difference, if the cetui que trust were a feme covert, for I apprehend, the husband would in that case, not be permitted to touch the fund, without securing it to her precisely as it stood in the hands of the trustees. But here the daughter survived her husband, and as there is no bequest over, she is entitled to her half of the estate absolutely.

The assets in the hands of the administrators of the surviving executor, are deficient, and the daughter claims to be paid as a judgment creditor, having obtained a decree of the Orphans’ Court, as it is alleged, for her share, on a settlement of the administration account, in the life time of the surviving executor. In the order of paying debts, the decree of a Court of Chancery, stands in the degree of a judgment at law; not directly, but in effect, as Chancery, although the executor cannot plead such decree, or give it in evidence at law, will protect him by’an injunction against proceedings at law for a devastavit, in consequence of having yielded obedience to it. But although our Orphans’ Court, in many respects resembles a Court of Chancery of limited jurisdiction, there is no colour to say, the plaintiff had obtained a decree for her legacy; nor do I see bow she could obtain it, for I am far from being convinced, that the Orphans’ Court has jurisdiction in cases of legacy. The executor had obtained a decree of confirmation of the settlement of his administration account, by which it appeared, there was a balance in his hands; but such decree has not one attribute of a judgment against him, being neither a debt of record, a lien on his lands, nor even an order to.pay over the balance.

The last exception is to the judgment, or rather to the verdict. The defendants pleaded non assumpsit and payment; that no assets had come to .their hands; and plene administraverunt generally. The jury found assets to the value of 1,822 dollars 90 cents, unadministered, in the hands of John M‘Cameron,. one of the defendants, and also found that the plaintiffs demand was 1,829 dollars 44 cents, and that her proportion of the assets was 488 dollars, 8 cents, which latter sum they found for her: so that although all the pleas of the defendants, at least as regards one of them, were found against, him, the plaintiff had a verdict for only a part ofher claim. It is evident, that the jury made the deduction in consequence of the existence of debts of equal or superior degree. But the law is settled, that where an executor has assets, but not a sufficiency to satisfy all the debts, he can protect himself only by pleading a special plane administravit of all beyond a sum sufficient to satisfy debts of a higher nature, (if there be any,) and to pay the other debts of equal degree, their pro rata proportion; and that plea should have been pleaded here. The only exception to this is, a retainer by the executor for his own debt, where he may prefer himself, because by retaining he pays himself, and thus, actually administers the assets retained; and this, in England, where retainer is permitted, may be given in evidence under a general plene administravit. But our act of assembly, while it makes it the duty of the executor to pay debts of equal degree, in proportion to their amount, and thus excludes the right of retainer, on the other hand, protects him from being compelled to pay any creditor more than his proportion. But then, the existence of such debts must be pleaded specially, for the same reason that debts of superior degree must be pleaded specially. Without this, the jury have no right to apportion the assets ; for the proportion of the plaintiff, in relation to the other creditors, forms no part of the issue which they are empannelled to try; and if they intermeddle in a matter not submitted to them, the court ought not to receive their verdict. Here the judgment is rendered on such a verdict, and it is error.

Judgment reversed and a venire facias de novo awarded.  