
    [Philadelphia,
    April 15, 1826.]
    LIPPENCOTT and Wife against WARDER, Executor of BARNES. BARNES, by her next friend, LIPPENCOTT, against the same.
    CASE STATED.
    Testator, after a bequest of certain personal property, devised to his wife C., and' his daughter Jl-, and any other child or children he might have at the time of his decease, their heirs and assigns for ever, in equal shares, all his other estate and property, real and personal; and, in the event of the death of either, the share of the party dying, to go over to the survivor or survivors, in fee simple; but should his children; or either of them, die without issue, such issue to stand in th^ place of his, her, or their deceased parent. He appointed his wife C. executrix, and J. W., jr., executor, With power to sell the real estate. The testator left his widow <?., his daughter Jl., and a son B., born after his death, who died in his infancy, leaving no issue. J. W-, jr., alone proved the will, but both he and the executrix joined in the sale of the real estate, for which they jointly gave deeds, and received securities in‘their joint names for the part of the purchase money which remained unpaid. J, W-, jr., had in his hands, as executor, personal property, money or securities for money, arising from the sale of the real estate, rents and profits received from the real estate, and interest or income of the personal property, and proceeds of the real estate. Held, that the widow, C., took an indefeasable estate in fee simple in one third j the children, Jl and B-, a defeasible one, and, upon the death of either of the children without issue, the estate went over to the survivor by way of executory devise, and, consequently, on the death of B. without issue, the whole fee simple in the two thirds vested in Jl. And that the husband of the widow was entitled, in her right, to one third part of the proceeds of sale, and the guardian of the daughter to the other two thirds; and that where the money- had not been received, they had a right to call upon the executor to proceed to recover the money due on the securities, or to assign them to the several plaintiffs, in proportion to their rights.
    Case stated for the opinion of the court, in substance as follows:
    
      Barnaby Barnes duly made his last will and testament, dated the first day of February, 1830, (prout the will,-) leaving a widow, the abovg named Christiana, now Christiana Lippencott, a daughter, the above named Augusta Barnes, and a son, Barnaby, born after the death of his father. Barnaby Barnes, the son, died in his infancy, leaving no issue.
    
      Jeremiah Warder, jr., above named, proved the will,- and took upon himself the execution thereof. The said Jeremiah Warder, jiv, as executor, and the said Christiana, as executrix,- jointly, made sale of part of the real estate, and executed and delivered deeds for the same, in the names of both. Part of the purchase money was paid, and for part securities were taken in the name both of the executor and executrix. The said Jeremiah Warder, jr., has now in his hands as executor, personal property which came to his possession as executor, money or securities for money arising from the sale, of the real estate, rents and profits received from the real estate, and interest or income of the personal property and proceeds of the real estate. William Lippencott and Christiana his wife have been duly appointed guardians of the person and estate of Jlugusia Barnes by the Orphans’ Court in and for the county of Philadelphia.
    
    The question submitted to the court is, whether the plaintiffs, that is to say, the said William and Christiana, in right of the said Christiana, and the said Augusta, are entitled by the said will to recover from the defendant the balances of money, and the securities for money which he has in his hands as aforesaid, or either and which of them ? If the court shall be of opinion that they are entitled to recover, then judgment to be entered for the plaintiff. If not, judgment to be entered for the defendant. t , The will was in these words:—
    “I, Barnaby Barnes, do make this my last will and testament»
    “ 1. I do hereby order and direct, that the formality of an inventory of my household and other personal property be dispensed with, and that the same belong to’ my‘wife.
    “2. I do hereby will, devise, and bequeath, to my wife Chris-tiana, and my daughter Augusta., and any other child or children which I may have at the time of. my decease, and their heirs and assigns for ever, in equal shares, all my other estate and property real and personal. And, in- the event of the death of either, the share of the party dying, to go to the survivor or survivors' in fee simple; but should my children, or either of them, die leaving issue, such issue shall stand in the place of his, her, or their deceased parent.
    
      “ 3. I do hereby appoint my friend Jeremiah Warder, jr., executor, and my wife Christiana, executrix of this my last will and testament, and authorize them to sell by public or private sale, and make legal conveyances in fee simple, for my real estate, should they mutually think it advisable so to do.
    “In witness whereof, I have hereunto set my hand and seal, this first day of February, A. D. 1820.
    
      B. BarnesP
    
    The case was submitted to the eourt without argument, by Sergeant, for the plaintiffs, and M‘llvaine, for the defendant.
   The opinion of the court was delivered by

Duncan, J.

These actions are brought to decide a question between the parties, as to the right of William Lippencott and his wife to demand payment of the proceeds of the sale of the real estate devised to her by her former husband, the testator, and of Augusta Barnes, by her guardian William Lippencott, to receive the proceeds oí the real estate of her father, the testator, sold arid conveyed by the said Christiana and the said Jeremiah, under the powers vested in them by the will. Christiana never qualified as executrix, but executed conveyances to the purchasers. and the securities taken for the purchase money are to her and Jeremiah Warder, jr., as executors of Barnaby Barnes. It is desirable to avoid, further than the case requires, giving any opinion as to what might be the construction of this will, in events that may never happen, or whether the money arising from the sale will in any event continue to be impressed with the character of real estate, and descend as such, or go to the next of kin of Augusta, as personal estate; but the case requires a decision on the question, and on the nature of,the estate of Christiana Lippencott.

The testator left two children, Augusta and Barnaby. Barnaby died in his infancy without issue.' William Lippencott is the guardian of Augusta, the surviving child of the testator, and has given satisfactoi’y security to the Orphans’ Court.

Christiana took an indefeasible estate in fee simple in one third part. The children, Augusta and Barnaby, a defeasible one. On their dying without issue, the'estate went over to the survivor of them, by way of executory devise. On the death of Barnaby-without issue, the whole fee simple in the two thirds vested in the survivor, Augusta. All the provisions in the executory devise relate to the children and the children’s part, for there is no devise over, as to the wife’s part. Christiana, the mother, could not die without issue, so long as either of these children lived. The object of the testator was to put his wife on an equality with the child he might leave; but he thought it wise to provide for the death of any child without issue, by giving over that child’s part to the survivor or survivors. That was án event seasonably determinable, The fee simple then became vested indefeasibly in the survivor Augusta, of the two thirds, on the death of her brother Barnaby without issue. It is quite clear that William Lippen-cott, in right of his wife, is entitled to one third part of the proceeds of the sale, and that whether the money remained marked with the character of real, or became converted, to every intent, into personal property; for the wife, by joining in this-aetion with her husband, has now consented to receive it as money. Slifer and others v. Beates and another, 9 Serg. & Rawle, 183. As to what may hereafter be a question, as to the descendible quality of this money, or its going over to the next of kin, on future contingencies, as relates to Augusta’s interest, the court studiously avoid dropping any intimation; but the court is clearly of opinion, that whether Warder stands in the relation of a trustee, or of an executor, he would be bound to pay over any money he received, or the securities mentioned in the case stated, to the guardian of Augusta. The trustee could not keep it in his hands unaccounted for. If an action were brought against any of these debtors, it must be in the name of Jeremiah Warder, jr., and William Lippencott and Christiana his wife, for the securities are to them. If the money was recovered and in Warder’s hands, he would be obliged to pay Christiana’s part to her husband, and Augusta’s part to her guardian, who has given security to the Orphans’ Court. If this was a proceeding in chancery, the chancellor would decree the payment, though perhaps requiring a settlement on the wife, and to the guardian on giving security. But here, the husband has never been held to make a settlement on his wife, in order to get at her estate, and here security has been given by the guardian. If it was only a life interest, and the tenant for life sought to recover the money, he could now do so, on barely filing an inventory, though formerly chancery required security that the goods should be forthcoming at his decease. Westcott v. Cady, 5 Johns. Ch. Rep. 349. But I apprehend it is still usual in chancery, in a case of danger, to require security.. I will not prelend to say how it would be in Pennsylvania, as to requiring such security fróm a person to restore personal property devised for life. I do not know the tribunal here who could exact it. But this is not the case of a bequest for life, but a devise in fee; as to the wife’s third, always a fee, absolute and indefeasible; and, as to Jlugusta, the moment she became the sole survivor; for in no event could her estate be lessened, which was a devise to her and her heirs, defeasible only on a particular event; to go over on that event to a survivor. As there now can be none on her death without issue, that event can never happen. Where the money has not. been received, the plaintiffs have a right to call on Warder to proceed to recover the money due on the securities, or to assign them to the several plaintiffs in the proportions stated. The assignment of the securities would exonerate the defendant. Under these view's of the case, it is the opinion of the court that payment to' the husband of the wife’s third part will be good and available, and of the part of JLugusta to William Lippencott, as her guardian, and direct judgment so to be entered.

Judgment for the plaintiffs.  