
    Findlay and another executors of Henry Hoffman appellants against Smith executor of Eleanor Hoffman appellee.
    
      Monday, September 24.
    APPEAL.
    The testator devised to his wife E., all the tract of land on which he lived, for her life, she committing no waste therein: and bequeathed her one hundred pounds in specific legacies, and then devised as follows, “ all said E. may dispose of cause, except mentioned which'siid11’ land I allow her decease61^ and the price, with what money may' and°hidehted to me, (after paying the following legacies and funeral expenses,) I allow to be laid out in building a Dutch Lufherian Church, where it. will be most convenient to this place.” His executors received various di*bts, with the interest up to the time of payment. An Act of Assembl) afterwards passed, which d¿rrc(<*d that the interest on any money thus bequeathed for the building of a Dutch Lulherian church, ^ -i in the hands of Ük. executors, should be appropriated to the maintenance of the widow. Held, that the executors were chaigeable with the interest actually received by them on the »ggrigaiei>f debt and’inurest in their hands, whether such interest was received before or aft. r the making of the Act of A «v.mbly, and that such part of that interest as accrued during the lifeofE., should go to her or her executors. They were chargeable also with the money not put out, if they used it on their own account.
    THIS was an appeal from the Orphans’ Court of Westmoreland county, by the executors of Henry Hoffman, deceased, who settled their administration account in that Court. There were several items of which the appellants complained, but the points to which the consideration of the Court was now directed, were: 1st, Whether the executors were liable to be charged with interest on the money of the testator which came to their hands, and to what amount, and 2d, What share of that interest belonged to Eleanor Hoffman, deceased, the widow of Henry Hoffman.
    
    These questions depended on the will of Henry Hoffman, andan Act of Assembly passed the 28th March, 1814, entitled, “ an Act for the relief of Eleanor Hoffman.” Henry Hoffman died in the year 1802. He devised by his will to bis wife Eleanor, all the tract of land on which he lived, con-ta'n'nS about 49 acres, for her life, she committing no waste or destruction therein. He also bequeathed to her 100 pounds in money, and a legacy of sundry specific articles, after which he devised as follows. “ Ail which the said Eleanor may dispose or as she sees cause, except the above mentioned tract of land, which said land I allow to be sold after her decease, and the price, with what money may be on 71 ' v hand, and indebted to me, (after paying the following legacies and funeral expences,) I allow to be laid out in building a.Dutch Lutherian Church, where it will be most convenient to this place.” There were debts due to the testator by bond ' and otherwise, which were received by his. executors at different times, with the interest due on them up to the time of payment. The Act of Assembly, after reciting the devise to the wife, and the Church, and that <« she, the said Eleanor, from necessity expended, in improving the premises and other unavoidable expenses, all her (share of the personal estate, and is now old and infirm, and the proceeds of-the-land are in no wise adequate to her maintenance, and that money bequeathed for building the church aforesaid is still in the hands of the executors, uncalled for.,” proceeds to enact, that “ the interest on any money bequeathed for' the building of a Dutch Lutherian Church by Henry Hoffman, and which is yet in- the hands of his executors, shall be and -the same is hereby appropriated to the support and maintenance of Eleanor Hojfman widow of-said Henry.” It. was agreed, on both sides, that the above Act of Assembly was to be considered as valid, and that the executors were bound to place out the money at-interest, after that .act, and to pay such interest to the widow during her life.
    
      Alexander and Ross, for the appellants,
    contended, that-the executors were not liable for interest on the money received by them on account of the debts of the testator, during the period anterior to the passage of the Act of Assembly. The will gives to the church all the money- on hand, and the money arising from the sale of the land after the wife’s death.. There is no direction to put the money out at interest. When the executors are accountable for interest, it is for the benefit of the next of kin only, and not for the benefit of a charity. -The executor is a trustee as to the undisposed surplus only for the benefit of the next of kin.- Gftasser v. Eckhart, 1 Binn. 575. 3 Binn. 557. 1 P. Wms. 54' C. 2 P. Wms. 158. 2 Atk. 18. % Brown’s Ch. Gas. 654. So the Act of Assembly of the 7th April, 1807, provides that’ the undisposed residue shall be distributed among the next of kin. In Wilson v. Wilson, 3 Binn. 557, where this Court’decided, that in Pennsylvania the executor was a trustee as to the not disposed of the will, and not the beneficial taker, he was held to be s.uch trustee for the use and benefit of the next of kin. In the present case, the testator died without any known kindred, therefore, the interest, if any was received, not beinsr given to the widow or charity, must enure to the executors for their own use. -By the Act of 27th March, 1813, Sect. 4. 1 Sm. Laws, 83, administrators, executors, and . , , . guardians are required to put the money ox minors out to mterest; and by Sect. 6, they are answerable for interest from the time when their accounts are of ought to be settled. No one c-ould call these executors to account, till after the widow’s death. As trustees for the charity, they were bound to keep the money ready, and therefore could not-put it out at interest.. Tbe money was to be paid at the widow’s death, and that was uncertain. The motive of the Act of Assembly was, that there was money in the hands of the executors not called for by the charity ; that the widow had improved the land at her own expense, and was old and unable to live on the profits of the land. It, is presumed, the Legislature thought no interest had been received, as it appears their in-, ’tent was, that from that time the money should be put out to interes,t, and the interest paid to the widow. She never demanded any arrears of interest in her life. The Legislature did not intend to take from the charity any thing which belonged to it. Now the whole debt which had been received, principal and interest, belonged to the charity in the event of the widow’s death j but still it might lie idle in the hands of the executors, and consequently it was not wronging the charity to order the money to be put to interest,- and the interest to be paid to the .widow. If the executors put out the money before, it was at their own risque, and therefore they ought not to pay interest.
    
      Foster and Forward, contra.
    ' The fund consisting of the debts and interest upon them received by the executors, after the decease of the testator and prior to the death of the widow belonged to the charity, and as. accessary thereto the interest received after the widow’s death,. The interest received'by the executors or which they might .by proper diligence, have made, during her life, belonged to her.' There was no surplus undisposed of by the will; no residue which could go to any person. By the will, the intention is manifest that the widow was to have the use of the money as well as of the land, which are disposed of in the same clause. The Act of Assembly appropriates the interest on any money in the hands of the executors to the maintenance of Eleanor Hojfman, without discriminating whether it accrued before or after the passage of the Act: and its intent appears to be to comprehend both; it was to indemnify her for money expended in improving the land. It is clear that the executors have no beneficial claim to the interest accrued. If the devise to thq charity were void, the Commonwealth would take, there being no next of kin. The executor is liable for interest on money in his hands though not directed by the will to be put out to interest. In 7 Bac. Abr. 182, it is laid down that a trustee is liable for interest- where he has been guilty of neglect in not putting out the money, or where he has made interest by putting it out.
   The opinion of the Court was delivered by

Tilghman, C. J.

The validity of the Act of Assembly, or of the devise to the church, have not been questioned by either party. The devise of what money might be in, hand or indebted to the testator, would comprehend all debts due to him, and all interest accruing on those debts to the time of payment to the executors. The- interest so accruing cbuld not be separated from the principal. It was to be considered as part of the debt at the time it was'paid; it was an accessary which adhered to the principal, and could have had no existence without it. Consequently it could not have been the intent of the Act of Assembly to take that interest from the-church. 1 here is no intimation of any such design. The interest given to the widow by the Act, was the interest on the money be'queathed to the church, which money bequeathed tó the church, was yet in the hands of the executor, and was the aggregate sum of principal and interest which had been paid to the executors by the debtors, of the testator. But that aggregate sum had been réceived by the executors, many years before the passing of the Act, and it is presumed that it had not lain idle. Did the Act intend to give to the widow the interest which had arisen on that money during the timé it was in the hands of the executors ? I think it did. But did it intend to charge them with interest for the whole time it had lain in their hands ? In that respect, the Act must be construed as following the law, which, in the present case, would charge the executors with no more interest than they had actually received. In general, the rule adopted by this Court is, to charge the executor with such interest as he has made, or with due diligence might have made, from the money in his hands. But this is an uncommon case. The testator gave no orders to put the money out to interest, and the time when the church would have a right to call for it, depending on the life of an old woman, was so uncertain, that if the executors, from a sense of this uncertainty, had kept the money by them, without using it themselves, I do not think they would have been chargeable with interest. But if they did actually put it out, and received interest for it, or made use of it on their own account, they ought to be charged with what they actually received, if put out; or with legal interest if they used it on their own account, during the time they used it. It was once questioned whether executors were chargeable with interest received by them, on money not directed by the testator to be put to interest. But I take it to be now settled that they are. In 7. Bac. Ab. (Wilson's Ed.") 182, the cases are collected which affirm that position. And it is highly reasonable, particularly in this Commonwealth, where the executor receives a compensation for his services, and takes nothing by the willbut what is expressly given to him. The counsel for the appellants did, indeed, contend, that this interest was in,nature of a surplus undisposed of, and therefore should go to the executors, because the testator had no known kin. They supposed that the decision of this Court, by which the executor was held to be a trustee for such surplus, was only in favour of the next of kin; especially as the Act of Assembly of 7th April, 1807, enacts, that the undisposed of residue shall be distributed among the next of kin. But the decision of the Court was altogether independent of the Act of Assembly, and grounded upon the custom of the country which took its rise from the law allowing the executor compensation for his care and trouble. In the case before us however, there is no surplus undisposed of. The whole residue, so far as we can perceive, is given to the ehurch. And the question is, not whether the executors take any thing by virtue of the will, for clearly they do not; but whether they are chargeable with interest,.on money not belonging to them while it remained in their hands. Both the law, and the justice of the case.require that they should be charged with the interest actually received by'them, since the money of the church came to their hands, whether such interest was received before or after the making of the Act of Assembly, and that such part of that interest as accrued during the life of Eleanor Hoffman, should be accounted for to her executors. They should be chargeable also, although the money was not put out, if they used it on their own accounts.  