
    [Philadelphia,
    Jan. 6, 1823.]
    In the case of RICHARD NEAVES’ Estate.
    APPEAR.
    One devised the residue of his real and personal estate after payment of his debts, to the discretion of his executors to distribute in such manner as they might th.nk proper, and appointed three executors, all of whom- died indebted to the estate without making any distribution. Held, that the Register’s Court might, in its discretion, appoint the son of the surviving executor, who was administrator to his father, administrator own testamento annexe, he being of fair character, and having given good security, and no claim being made by any next of kin, nor opposition by the commonwealth under a claim by escheat, nor by creditors.
    This was an appeal by Alexander Stewart, from the decree of the Register’s Court of the county of Philadelphia, committing the administration cum testamento annexo of Richard Neave’s estate, to Samuel Smith.
    
    
      Ewing, for the appellant,
    stated, that Richard Neave died in Philadelphia, in the year 1809, and his will was proved on the 4th March, 1809. He left three executors, namely, Robert Corrie, Francis M‘Shane, and Dr. William Smith, who took upon themselves the administration of the effects, and are since, dead. M‘Shane settled an account in the Register’s office on the 26th February, 1810, having filed a declaration on the 24th same month, that the balance in his hands was 3287 dollars and 72 cents, Corrie died after him, namely, in May, 1821, having settled his accouht in the same office, acknowledging a balance in his hands of 2322 dollars and-73 cents. Smith settled ho account, but filed a declaration on the 23d February, 1810, that he was accountable for 994 dollars, included in the inventory of R. Neave’s estate. He died in May, 1822, being the surviving executor, intestate. Ad ministration of his estate was committed to Samuel Smith, his eldest son. Alexander Stewart, the appellant, applied for the administration of R. Neave’s estate, on the ground of being a creditor of Richard Neave. Stewart had a claim on Neave’s estate for an indémnity against expenses to which he had been put in recovering a tract of land sold to him by Neave, for which Neave had contracted with one Richardson. Dr. Smith’s children claim Neave’s estate under his will, but we say that they have no beneficial interést, büt take as trustees.
    
      Neave, by his will, devised all his estate real and personal to his executors and their heirs, directed the manner of paying his ■ debts, and then gave, “ the residue, if any, to the discretion of his executors, to distribute in such manner as they may think proper.” This residue, therefore, was to be distributed by the executors, and as they have all died without executing the trust, the distribution must be made by others. A devise of copyhold to testator’s wife in fee, “ not doubting but that my wife will dispose of the same to and among my children as she shall please,’* is a trust for such children as she shall appoint. Massey v. Sherman, Ami. 520.
    So where one by will gave annuities, and directed the residue of her estate to be disposed of in charity, to such persons and in such manner as her executors, or the survivors of them should appoint, it was held a trust confined to the executors personally, and that it could not be exercised by other trustees, added by the Courtof Chancery to sustain the annuities. Amb. 309. If this residue be considered as an undisposed of'surplus it goes to the next of kin. Act of 1th April, 1807, sect. 11. Purd. Dig. 650. Wilson v. Wilson, 3 Binn. 557. If the executors had no beneficial interest, the administrator of the surviving executor is an improper person to have the administration, because his intestate has not settled his account of Neave’s estate. It ought to be given to some other person, who would call him to account. And we do not insist that R. Stewart shall be appointed, as it does not appear that he is a creditor, but that S. Smith shall not: and on this appeal the only question is, as to the appointment of the latter.
    
      Chguncey and I. Sergeant, contra.
    There were applications in Huntington and Bedford counties for the administration on R. Neave’s estate. The Register of Philadelphia, without notice to any person, had determined to grant letters to Mr. M‘Knight and Mr. Stewart; but before the letters issued, a caveat was entered, in consequence of which, by an old act of assembly, June 7th, 1812, Purd. Dig. 573 note, the matter was carried at once to the Register’s Court. Stewart and MiKnight swore, that they were creditors. MlKnight afterwards relinquished his ápplica tion, and Stewart did not prove he was a creditor. Robert Stewart, the father of Alexander, claimed 4 or 5000 dollars froiri R. Neave’s estate, for indemnification of expenses at law concerning land he had bought of R, Neave. He had agreed to give upwards of 500 pounds for the land, of which he had paid only 50 pounds; so.that he wanted his land for almost nothing, and a large , sum besides. His son was certainly a very improper person for administrator. We have his bond and mortgage for the purchase money, of which only 50 pounds have been paid. A. creditor is not on the footing of the next of kin as to the administration. The next of kin has a right to the administration: but the creditor has not.
    We contend, that this residue vested beneficially in the executors, and as such passed to the survivor. It is an unlimited power: .no object's of distribution are named: the executors might if they pleased distribute among themselves. A devise of land to one to dispose of at his will and pleasure, is a fee. , Com. Dig. Devises, N. 4. A bequest for such purposes as executors shall, in their discretion, think proper, does not exclude the executors. 2 Madd. 86. There certainly is no trust for the next of kin: the whole estate is given to the executors, for the sole purpose of paying debts: and the legal estáte is in the heirs of the surviving executor, Dr. Smith. We know of no kindred of R. Neave; if there are any, none have appeared. If it be supposed that there is an interest in the commonwealth by escheat* yet the commonwealth makes no objection. . But there can be no escheat where there are executors. The act regulating escheats applies only to the case of the parties dying intestate. The act of lt\i'./lpril, 1807, Purd Dig. 650, does not apply to this casé, because the residue is here disposed of by will. Then the rule is well settled, that administration,- generally speaking, shall be granted to the residuary legatee, and to the executor or administrator of the residuary legatee, even against creditors or next of kin. Toller, 98, 99, 117. S. Smith, to whom administration is granted, is-a man of unexceptionable character, an! has given good security in the sum of 4000 dollars. He is one of four children left by Dr. Smith. All those who are interested in Carrie’s estate, and in- Dr. Smith’s estate, requested that the administration might be granted to S.' Smith. He was within the scope of the Register’s discretion, and this court will not set him aside, unless' it is shown that he is unfit.
    
      Tod, in reply.
    The single question is whether S. Smith ought to be'the administrator. It is a strong’objection to him, that as his father’s administrator, he is indebted- to R. Neave’s estate. The accounts of the estate have not been settled: he has in his hands all the documents and papers necessary to effect a Settlement: and he ought not to have the business entirely in his own hands, but power should be granted to some other, to call the executors of all the representatives to account. There can be no- doubt that the testator meant that the executors should take in'trust. They are to take for the purpose of distribution: they might have a discretion as to the mode o,f distribution, but not whether or not they would distribute at all. The word distribution, signifies in law, an apportionment among the next of kin. The executor had no ideá of a beneficial interest. ■ Carrie by his will orders the balance in his hands to be paid to the estate If there are no next of kin, the commonwealth takes by escheat; for though there are executors, they may be trustees for. the commonwealth. If there are no next of kin, R. Neave died intestate as to the residue. An administrator of an executor is not entitled to administration tothe testator.
    
    
      
      (a) Seethe case of Gibbs v. Samsey, 2 Ves. and Beames, 294: which is strong in favour of this being for the benefit of the executors themselves. Sep.
      
    
   The opinion of the court was delivered by

Tilghman, C. J.

Richard Neave died in the year, 1809, in the county of Philadelphia, haying made-his. last will and testament in writing, and appointed Robert Corrie, Francis M‘Shane, and William Smith, the executors of his said will. The will was pi’oved on the 4th March, 1809. The executors,, of whom Smith was the survivor, are all dead; and although their accounts have not been finally settled, yet it appears' from the papers filed in the office .of the Register of wills, that there is a balance due from each of them-to the estate of the testator. It does not appear, that Neave left any kin. Upon the death of William Smith, the surviving executor, who died intestate, his son Samuel Smith, (his administrator,)-applied for letters of administration on the estate of Neave, (with the will annexed.) Application was also made by Alexander Stewart, the appellant, upon the ground of his being a creditor of Neave. The Register’s Court, having heard the parties, granted the administration to Samuel Smith, whereupon Stewart entered an appeal. '

It does not appéar, that Stewart Was a creditor, so that he has no pretence to the administration. That is conceded by his counsel; but they contend, that letters ought not to, have been granted to Samuel Smith, and 'therefore this court should revoke them. The reason they assign, is, 'that the executors of Neave took'his.estate in trust, and not for their own benefit, and. therefore the son of the surviving executor had no right to the administration, and ought not to have it, because the estate of his father is debtor to the estate of Neave, and the administration would be more properly granted to another, who might call the representatives of all the executors to an account. Neave died seised, and possessed, of a considerable estate, both real and personal, and it is.supposed that be was indebted both here, and in England where.he fórmerlyresided. He devised all his estate, both real and personal, to his executors ' and their heirs,' gave directions as to the manner of paying his debts, and then- gave'£ 4 the residue, if any, to the. discretion of his executors, to distribute in such manner as they may think proper .” These are the words of the will. It has been argued with great force as well as ingenuity, by the counsel of Samuel Smith, that the executors of Neave took the residue of his estate, not in trust, but for their own benefit. It is unnecessary to decide that point at present; and I will only remark,, that there will be considerable difficulty in establishing a trust, where the testator has not expressly said that a trust was intended, where the object- of the supposed trust is so undefined, and the power of distribution vested in the executors, is so unlimited. It cannot be said, that any person has a right to the administration in this case, because the statutes which direct the manner of granting administration, have not provided for it. If William Smith, the surviving executor of Neave, had made a will and appointed an executor, that exbcutor would of course have been the executor of Neave. But having died intestate, there is no privity between his administrator and the executors of Neave. In such cases, it has been usual to grant administration with the will annexed,' to some of those persons who were residuary legatees of the testator, or if there were no residuary legatees, to some of those who were interested in the estate as next of kin, or otherwise.

In the-case before us there are. no kin) nor was the grant of the administration to Smith, opposed by the creditors .of Neave, or by the commonwealth, to whom the counsel for the appellant suppose, the residue may, perhaps, belong by escheat. It is conceded, that the administration has been committed to a person of fair character, who has given good security to the amount required by the Register’s Court. .Under these circumstances, it is not perceived, on what principle this court should revoke the letters. The discretion of the Register’s Court, seems to have been well exercised, in a matter which the law committed to their sound discretion. The surviving executor of Neave had the legal property in the residue of his estate, and it certainly is,by no means clear (to say the least of it,) that there was any outstanding equity against him. ' But if the commonwealth, or any individual, conceive that they have an equity, the administrator, with the will annexed, may be called, to account. The only objection to Samuel Smith, which has .the least plausibility is, that supposing his.father to be indebted to the estate of Neave, it is not his interest to make up the account. But there is such a thing as carrying jealousy too far. No person has been proposed, who was better qualified. No person who had a right to be jealous, has expressed his.jealousy. And it is to be recollected, that Samuel Smith having the possession of his father’s papers, has the means of a better knowledge of the estate of Neave, than any other person, and consequently, will be better qualified for collecting the debts due .to the estate, and/epelling any unjust claims, which may be brought forward ■ against it. I am therefore of opinion, that the decree of the Register’s Court should be affirmed.

Decree affirmed.  