
    Swope v. Chambers.
    July Term, 1845,
    Lewisburg'.
    (Absent Brooke, J.)
    i. Legacies and Legatees — Contingent Bequests — Suit to Recover. — A legacy being made payable on the legatee’s attaining the age of eighteen, or marrying, the legatee cannot maintain a suit to recover it, before the happening of the one or the other of these events,
    2. Same — Same—Same—Decree to Secure- — in such case, the suit being brought to recover the legacy, upon these pleadings the Court cannot make a decree to have it secured.
    3. Same — Same—Payment to Legatee’s Guardian.— Until the legacy is payable, the executor cannot relieve himself and his sureties from responsibility for it, by paying over the legacy to the guardian of the legatee.
    4. Executors — Dual Character — Election— Sureties.— If the executor is also the guardian of the legatee, he cannot elect to hold the legacy as guardian, before It is payable; so as to relieve his sureties as executor, and charge his sureties as guardian.
    5. Same — Same—Same—Intention—Evidence  — Where an executor and guardian may elect to hold a fund in his hands in either character, some act or declaration on his part is necessary to indicate his intention to hold the fund as guardian.
    This was a suit in equity brought in the Superior Court for Monroe county by .Elizabeth Chambers an infant, by her next friend, against her former guardian William F. Chambers, and John Swope his surety, to recover the amount due from said William F. Chambers on his guardianship account. The only subject of dispute in this Court was an item of 78 dollars, the amount of a legacy left to the plaintiff by her grandfather Robert Chambers.
    *The father of the plaintiff died in 1829; and in 1331, William F. Chambers qualified as her guardian, with John Swope as his surety. In 1836, Robert Chambers the grandfather of the plaintiff made his will and died. By one clause of his will he says: “to my granddaughter Elizabeth Chambers seventy-eight dollars, with my bureau and one good cow, to be held in trust by my executor and her guardian, till she is eighteen years old, unless married before; and in that case, she may receive such a part or the whole as her guardian may think proper until she is eighteen; and his money I desire may be put to interest with good security: but if she demise before that time the money to be equally divided between my other legatees.” And he appointed William F. Chambers his executor; who qualified as such, and took possession of the estate of his testator.
    In January 1842, Swope was, upon his application to the County Court of Monroe, released from his suretyship for William F. .Chambers; and at the April, term’ following, the authoritj' of said Chambers as guardian of the plaintiff was revoked; and James S. Ballard was appointed guardian in his stead.
    After the release of Swope, William F. Chambers settled both his guardian and executorial account, before a commissioner of the County Court of Monroe; and on this settlement he was credited as executor of Robert Chambers by the legacy left to the plaintiff, and charged with it in his account as guardian: and being so charged the balance found against him was 113 dollars 98 cents. Swope the surety of William F. Chambers offered to pay the difference between this balance and 78 dollars, the amount of the legacy; but the present guardian of the plaintiff refused to receive it; and this suit was brought. The bill charged that Chambers held the legacy as guardian of the plaintiff; and Chambers in his answer, said that he always considered himself as liable *for it in that character: but Swope in his answer, denied that Chambers held as guardian, or that he could have so held it under the will of Robert Chambers, before the plaintiff arrived to the age of eighteen : which she had not done when this suit was brought.
    The cause came on to be heard in July 1843, when it appearing that William F. Chambers was insolvent, the Court made a decree against Swope for the amount found due upon the guardian’s account as settled by the commissioner of the County Court of Monroe, with interest and costs. From this decree, Swope obtained an appeal to this Court.
    Caperton, for the appellant,
    insisted 1st. That the legkcy left by-Robert Chambers to the plaintiff was not a vested, but a contingent legacy; and he referred to 2 Lomax’s Ex’ors S3, 55; S Bac. Abr. 1S2, title Legacy E 2; Machell v. Winter, 3 Ves. R. 536; Knight v. Cameron, 14 Ves. R. 389; Matthews on Ex’ors, 9 Law Libr. 71; Heath v. Perry, 3 Atk. R. 101; Lupton v. Lupton, 2 Johns.Ch. R. 614.
    2d. That if the legacy is vested, it is not payable until the happening of the event contemplated; and therefore this suit could not be maintained. S Bac. Abr. 180; Heath v. Perry, 3 Atk. R. 101.
    3d. That William F. Chambers, necessarily, received the estate of Robert Chambers as executor; and must be considered as holding it in that character, until he did some act indicating his selection to hold it as guardian. Pratt v. Northam, 5 Mason R. 95; Morrow’s adm’rs v. Peyton,, 8 Beigh 54; Myers v. Wade, 6 Rand. 444; Broadus v. Rosson, 3 Beigh 12. In this case the answer of William P. Chambers does not state that he had done any act indicating his election; but that he considered himself liable as guardian. The settlement of the accounts was after Swope was released from his ^'liability as surety, and an election then made, cannot relate back so as to affect the liabilty of Swope.
    N. Harrison, for the appellee,
    insisted 1st. That the legacy was vested; and he referred to 1 Tuck. Comm. Book II. 129, 142; 2 Cruise’s Dig. 181, 202 to 205; Eearne on Cont. Rem. 2, 215, 240 to 247, 281; Toll, on Ex’ors 326, note M; 1 Rop. on Beg. 479, 484, 494; Butler v. Butler, 3 Atk. R. 58; Harvey v. Harvey, 2 P. Wms. R. 21; Doe v. Moore, 14 Bast’s R. 601; Hanson v. Graham, 6 Ves. R. 239; Bane v. Goudge, 9 Id. 225; Branstrom v. Wilkinson, 7 Id. 421; May v. Wood, 3 Bro. Ch. R. 471; Phipps v. Williams, 6 Cond. Eng. Ch. R. 311; 2 Mad. Ch. R. 12, 15; 2 Ponb. Equ. 370, note K.
    2d. The object of this suit is not to have the legacy paid over to the plaintiff, but to secure it; and this a Court of Equity will do at the instance of any party having a beneficial interest in the legacy.
    3d. The will puts the legacy in the hands of the testator’s executor, and the legatee’s guardian. This was descriptio personae, and intended William P. Chambers. The will, too, authorizes the guardian to advance to the legatee as he thought fit, after her marriage, and before she attained the age of eighteen years; clearly idicating the intention of the testator that William P. Chambers should hold the legacy as guardian. Being both executor and guardian he could elect to hold in the latter character. Rob. Prac. 377; Taylor v. Deblois, 4 Mason R. 131; Myers v. Wade, 6 Rand. 444; Hamlin’s adm’r v. Atkinson, Id. 574; Pratt v. Northam, 5 Mason R. 95; Broadus v. Ros-son, 3 Beigh 12. The answer of Chambers, which is evidence against his sureties, (Myers v. Wade, supra,) says he held as guardian; and the ex parte settlement of his accounts, which was not excepted to, proves that he so held. Atwell’s adm’r v. Milton, 4 Hen. & Munf. 253; Spedden v. The State, 3 *Har. & Johns. 251; Aston’s Estate, Ex parte, 5 Whar. R.
    
      
      Legacies — Contingent Requests — Suit to Recover.— For the proposition laid down in the first headnote, the principal caséis cited in Rowland v. Rowland, 11 W. Va. 271; Poythress v. Harrison,) P. & H. 199; and Potomac Mfg. Co. v. Evans, 84 Va. 721, 6 S. E. Rep. 2. same — Same—Same—Executor’s Account Surcharged and Falsified. — The fact, that an essparte settlement, made by an executor must be surcharged and falsified, before the payment of a certain legacy can be enforced, will not justify the legatee in instituting a suit to recover such a legacy, before it is payable. In a proper case, a suit may be brought, for the preservation of a legacy before it is payable. Rowland v. Rowland, 11 W. Va. 263, citing Swope v, Chambers, 2 Gratt. 320.
    
    
      
      Decrees. — a court of eauity can only decree on the case made by the pleadings. Welfley v. Sheri., etc., Co., 83 Va. 768, 3 S. E. Rep. 376, citing the principal case.
    
    
      
      Fiduciarles — Dual Character — Election.— For the statement in the fifth headnote, the principal case is cited in Gilmer v. Baker, 24 W. Va. 92; Board v. Cain, 28 W. Va. 770; Smith v. Gregory, 26 Gratt. 257, 263; Paxton v. Steel, 86 Va. 314, 10 S. E. Rep. Í. See foot-note to Harvey v. Steptoe, 17 Gratt. 289; Morrow v. Peyton, 8 Leigh 54; Myers v. Wade, 6 Rand. 444; Broadus v. Rosson, 3 Leigh 12. See the principal case cited in Belvin v. French, 81 Va. 81, 3 S. E. Rep. 891.
    
    
      
       Evldence — Admissions of Administrator — Admissibility. — See the principal case cited in Gilmer v. Baker, 24 W. Va. 87. foot-note to Cox v. Thomas, 9 Gratt. 323.
    
   STANARD, J.

The question propounded by this appeal is, whether the surety in the bond of Chambers as the guardian of the infant plaintiff, be liable to a decree in this case, for the amount of the legacy of 78 dollars, claimed by her under the will of her grandfather Robert Chambers.

The argument on the question whether the legacy was, or was not vested, displayed a research and ingenuity most creditable to both the counsel. Though I strongly incline to the opinion that the legacy was not a vested one, and would not vest until the legatee should marry or attain the age of 18 years, neither of which events had occurred when Chambers’s authority as guardian was revoked, and when this suit was instituted, I do not think it necessary, and therefore forbear to give a definitive judgment on that question.

Though it were admitted, that the right to the legacy was a vested one, it is conceded, and properly so, that the legacy was not payable, and, consequently, not de-mandable until the legatee married or attained the age of 18 years.

The fund for the legacy came to the hands of Chambers the guardian, not in that character, but as executor of the testator, and, necessarily, remained in his hands in that character until it could be lawfully shifted, and was in fact shifted to his hands as guardian.

If the legacy had been vested, and payable during the guardianship of Chambers, so as to make it his duty to pass the fund from himself as executor to himself as guardian, very slight acts, and even declarations of Chambers that he considered the fund in his hands as guardian, might suffice to make him and his surety chargeable in that character. But as the legacy was not demandable or payable, he could not, had the guardian *been another, have discharged himself of his executorial responsibility for this fund by prematurely passing the fund into the hands of the guardian; and it is not perceived that (he being the guardian as well as executor) even a much more distinct act of election than is in evidence, or even suggested in this case, could have had the effect of terminating the executorial, and fixing the guardianship responsibility, before the legacy was payable or demandable. My opinion is, that no such act is proved; and if it was proved, that any such act was unavailing to terminate the executorial, and create the guardianship responsibility. The conclusion is, that the Court below erred in decreeing against the appellant as the surety of the guardian for this legacy'.

The executor and his surety were before the Court, and if at the institution of the suit the female plaintiff had been entitled to demand and receive the legacy, it would be proper to decree therefor against the executor and his surety. But, confessedly, the infant at the institution of the suit had not a right to demand and receive the legacy; and, consequently, a decree therefor could not be properly rendered. The counsel of the infant, conceding that the infant was not entitled, at the institution of the suit, to demand and receive the legacy, vindicates the institution of the suit as a proper measure for the preservation of the legacy, until one or the other event shall happen to which it will be demandable and payable. A sufficient answer to this is, that such is not the nature or object of the suit. It is brought to recover the legacy, not to secure the fund; and being so, it Weis prematurely brought.

■ The other judges concurred.

The decree was reversed with costs and the Court proceeding to render such a decree as the Court below ought to have rendered in respect to the claim of the ^plaintiff below to the legacy under the will of Robert Chambers, it was decreed that the bill so’ far as it sought to recover that legacy be dismissed but without prejudice to any suit that the infant plaintiff may institute when she shall marry or attain the age of 18 years to recover said legacy from the executor of Robert Chambers, or his surety or sureties; or to any suit that the infant or any of the parties interested in the legacy may institute for the preservation of the fund out of which the legacy is or may be payable.  