
    * Samuel Saunderson and Eunice, his Wife, versus Thomas Stearns, Executor of Elijah Lawrence.
    A bequest was made to A B of ninety pounds, to be kept in stock, and the interest paid annually to her during her natural life, and, after her decease, to be equally divided among her heirs, lawfully begotten of her body ; and it was held, that A B was not entitled to the principal, but that the executor should retain it, paying over the income to A B during her life, and the principal to her issue after her death.
    This was an action of the case for a legacy, which was submitted to the determination of the Court upon the following state of facts, viz., — That the said Lawrence duly made his last will, of which he appointed the said Stearns executor, and which, after the testator’s death, which took place more than a year before the commencement of this suit, was duly proved.
    Among other things in the will was the following bequest, viz.: —■ “ Item. I give and bequeath unto Eunice Saunderson, daughter of my brother, George Saunderson, ninety pounds out of my sums at interest at my decease, to be kept in stock, and the interest paid annually to her during her natural life, and at her decease to be equally divided among her heirs, lawfully begotten of her body.”
    
    The testator left money at interest sufficient for the payment of ninety pounds. The said Eunice Saunderson, mentioned in said bequest, is the same, who, with her husband, Samuel Saunderson, are the present plaintiffs, and they have children born of her body since their intermarriage. The interest of the legacy has been regularly paid by the defendant since the testator’s decease, and there was not a year’s interest due at the time of the commencement of this action.
    If the Court should be of opinion that upon these facts the plaintiffs can maintain their action, the defendant agreed to be defaulted ; otherwise the plaintiffs were to become nonsuit.
    
      Bigelow, for the plaintiffs,
    contended that by the necessary con struction of the clause of the will in question, the principal sum was to be paid to the legatee named. Who is to keep the money in stock? Not those to whom it is bequeathed over after Eunice’s decease. This would be absurd. If the executor was to retain it, many and great * inconveniences would follow. The es- [ * 38 ] tate could not be settled until' the death of the first legatee. If it be said that he may retain ninety pounds in his hands for this purpose, what is to compensate him for his care and labor ? Again, the principal may be lost by the insolvency of those to whom it may be loaned ; and to insure the legacy, he musí retain sufficient to protect the legatees against such a failure, which will make it impossible to settle the estate in the probate office ac cording to the condition of his bond. Further, the executor and his sureties may become insolvent, whereby the legacy will be wholly lost.
    The legacy is to be considered as a gift of the principal sum to the legatee, with a provision that only the income shall be used by her, and the principal kept for the benefit of her children. Such a construction of the bequest is more necessary here than in England, where the Court of Chancery would see that the money was safely funded. As there is no such power here, a different construction ought to be made of the words of the bequest.
    If this were a devise of land to the executor, to the use of Eunice Saunderson for her life, and after her ^eath to her heirs, such a devise would give her a present fee. It would seem a little strange that the law should take more care of a personal legacy than of a devise of real estate. 
    
    
      Ward, for the defendant,
    was stopped by the Court, whose opinion, the action standing continued nisi, was delivered at the following March term in Suffolk by
    
      
       2 Ch. Ca. 198, Martin vs. Clerk. — 2 Vern. 181, Robinson vs. Dugdale.
      
    
   Sewall, J.

[After stating the action, and the agreement of the parties.] The plaintiffs now demand the principal sum; and it has been argued that they are entitled to have it paid into their hands, because, no trustee being distinctly named by the testator, the legacy vests in the plaintiff Eunice Saunderson, subject to the remainder, at her decease, for the benefit of her issue. And in support of this argument, two cases have been cited of lega- [ * 39 ] cies adjudged to have vested absolutely in the legatees, * although made in trust, and subject to a further appointment.

The cases cited are of a legacy to one, to be disposed of as the testator should afterwards direct; and of a legacy to one, to be disposed of as the legatee should think fit. No further appointment having been made, they were adjudged to vest absolutely in the first legatees.

These cases are, however, very little analogous ; for in the case at bar, the testator has plainly declared the ultimate disposition of the legacy in question. The plaintiff Eunice Saunderson has only an annuity for her life; and to give her the principal might defeat the intention of the testator, in his provision for her issue, to whom the principal sum is to go at her decea'se.

But the supposed difficulty does not occur ; for there is a trustee, if not named, yet arising by a plain implication from the words of the bequest, who is entitled to retain the legacy during the life of Eunice Saunderson. The executor named in the will, or any person who may become by law intrusted with the execution of it, is the trustee of the legacy during the life of Eunice Samiderson. The principal sum is to be raised out of the testator’s money at interest— an office to which the executor, or person intrusted with the administration according to the will, is alone competent. And from the circumstance that no person is named, to whom the money, when collected from this particular fund, is to be immediately paid over, we can only argue and conclude, that he who collects is appointed to retain, and “ keep it in stock,” according to the words of the testator, subject to the disposition he has made of the income of it during the life of Eunice Saunderson, and to be paid over, at her decease, to her issue.

Upon the whole, the plaintiffs in this action cannot prevail without directly violating the intentions of the testator in restricting the right of Eunice Saunderson to the interest, * pay- [ * 40 ] able annually during her life, of the sum ultimately bequeathed, at her decease, to her issue.

According to the agreement, by which this case is referred to the decision of the Court, the plaintiffs are to become nonsuit.

Plaintiffs nonsuit  