
    FLORENCE T. MITCHELL vs. CHARLES P. THOMSON.
    1. Where in a will a trust is created and no person is named to perform the trust, the executor will be charged with its performance, if upon the whole will such appears to have been the intention of the testator.
    2. Where a testator makes his debtor executor of his will and directs the money due from him to be invested in land for the use of another, the executor will be charged with the duty of making the investment if no other person is named.
    3. Where a debtor is appointed executor of his deceased creditor the debt at once becomes cash assets in his hands; if the debt is not yet due it becomes assets as soon as it matures.
    In Equity.
    No. 11,106.
    Decided January 29, 1889.
    The Chief Justice and Justices James and Merrick sitting.
    Appeal from a decree sustaining a demurrer to a bill in equity.
    The Facts are stated in the opinion.
    Messrs. H. O. Claughton and Franklin H. Mackey for complainants:
    The defense set up in this case cannot commend itself to a court of conscience. The defendant does not deny receiving the money, nor the making of the note, nor the bequest of it by the testatrix, nor his subsequent acknowledment of the legacy and trust, nor his receiving commissions thereon, nor his admission that the note was a debt due the estate by paying a part of it after he qualified as executor;’ he is seeking merely to avoid his liability by a technicality.
    If this bequest was a trust, and was accepted by the defendant, he could be discharged of it only in two ways, either by a release from the beneficiary or by a decree of a court of equity. There is no claim that he has ever been released by a decree. This leaves the defendant but one ground of defense, and that is that the acceptance of the unindorsed note by the guardian of the defendant was a release of the trust by the guardian, and that the acceptance of the note from the guardian was a ratification of the release made by the guardian; and, further, that the action at law upon the note was an independent release.
    First. The transaction between the executor and the guardian, which was merely handing over the unindorsed note, was utterly void, or just as void as if it had been a blank piece of paper. Of course this void act was not capable of ratification.
    There was really no note, or debt evidenced by a note, in existence after the defendant qualified as executor of the testatrix. From the moment of such qualification that note was paid by Charles P. Thomson, and there was in the hands of the executor the sum of $2,000 for a distribution under the will. 2 Williams on Exrs., 1311, and authorities cited.
    “Where the will declares a trust, and no trustee is named, the executor who proves the will thereby accepts the trust.”
    “ Where a trust is created by a will, and no trustee appointed, the executor is bound to act as such trustee.” McBurney vs. Carson, 99 U. S., 572; Pettingill vs. Pettingill, 60 Me., 412; Richardson vs. Knight, 69 Me., 385; Holbrook vs. Harrington, 16 Gray, 102.
    Second. The declaration of separate estate for a minor female is good. She cannot dispose of it until she is of age. If she marries before she is of age, the quality of the estate inheres. If she become of age before she marries, although she may dispose of it, yet if she afterwards marries, the quality of separate estate at once attaches, not because of the marriage, but because of the original creation. Tyler on Infancy and Coverture, Sec. 304; 2 Story Eq. Jurisp., Sec. 1384, and cases cited.
    Mr. A. S. Worthington for defendant:
    Even assuming the trust to be definite enough to be capable of enforcement by a court, it does not appear that the defendant has accepted it.
    He is not appointed trustee by the will. The duty of investing the money does not devolve upon him either as husband or as executor. It may be conceded that in many cases the acceptance by an executor of that office carries with it the acceptance by him of duties which are devolved by the will upon the executor which do not strictly pertain to the office. But .those are not cases like this. The distinction between the cases in which the person who is both executor and trustee under the will becomes trustee by accepting the office of executor, and those in which he does not, is well pointed out in Perry on Trusts, Vol. I, Sec. 262. The doctrine there laid down and supported by the authorities cited by the author is that the acceptance of the executorship is an acceptance of the trust only when the executor as such is to act as trustee. This subject is considered also in the previous case in this court of Hamilton vs. Clark, 3 Mackey, 428, where it was held that an executor was not authorized to make a sale which was provided for in the will, but which the will did not provide should be done “by my executor.” Mr. Justice James dissented in that case, but ■placed his dissent upon the ground that in that case, after the sale provided for had been made, the proceeds were to be distributed in accordance with certain directions contained in the will; and, as was said by Mr. Justice James in his dissenting opinion, “the American courts * * * look at the whole will, and, if they find that there is to be a sale and a'distribution of the money proceeds, they hold that to be an act of administration, and that the person who is to make a distribution is to take the step necessary to do it.” This does not apply to the present case, and there is no reason for construing this will to mean that the executor-, as executor, is to make an investment for the benefit of the daughter of the testator.
    
      Under the mil the complainant had the right to elect whether 
      
      she would take the $8,000 in money (or, what is the same thing, take the note itself) or take the land. She has exercised the right by taking the note, and cannot now claim the land.
    
    If the executor (or trustee appointed by the court) had invested the |2,000 in real estate, and had had the same conveyed to the daughter of testatrix, she could at once have sold the property, and could have done with the proceeds what she pleased. Where that is the case, it is optional with a legatee to take the funds, or to take the property in which it is to be invested. In other words, where money is to be converted into real estate, or real estate is to be converted into money, for-the benefit of a legatee, the latter has his choice of demanding and receiving either the property in its original state or that into which it is directed to be converted. 1 Jarman on Wills, 397, 598; 2 Redfield on Wills, 419; 2 Story’s Eq. Jurisp., 793; Craig vs. Leslie, 3 Wheat., 578; Mandelbaum vs. McDonnell, 29 Mich., 86; Barlow vs. Grant, 1 Vernon, 255; Nevill vs. Nevill, 2 Vernon, 431; In re Brown’s Will, 27 Beavans, 324; Stokes vs. Cheek, 28 Beavans, 620.
    As was said in Craig vs. Leslie, “this election he (the legatee) may make as well by acts or declarations clearly indicating a determination to that effect as by application to a court of equity.” In the present case the complainant, through her guardian, elected to take the money. The receiving of the note was a clear indication of the wish of the legatee that 'she should receive the fund itself, instead of the real estate into which it was to be converted. This action of the guardian the complainant ratified (if that was necessary) when she became of age by taking the note from him. And thereafter, if there was any obligation upon the defendant in this case, it was as maker of the' note and not as executor or trustee under the will.
    This would be so, even if it appeared that the complain- ' ant stills holds the note; but much stronger is the case when she not only does not offer to bring the note into court to be canceled, but does not even aver that she still has it in her possession. For all that appears to the court it may have .long ago been transferred to somebody else. Indeed, it may have been paid, for there is no allegation to the contrary in this bill. It may be said that the note was not indorsed by the defendant as executor when he delivered it to the complainant’s guardian. But- that fact is not averred. It was averred in the original bill, but that position has been deliberately abandoned in the present bill; and if it were averred it would make no difference, for the delivery of the note unindorsed would pass the title thereto (Wood vs. Wermer, 104 U. S., 786), and the guardian would have had the right, had the note been valid, to bring a suit in equity either to compel the defendant to indorse the note as executor or to compel him to pay the money outright. Indeed, this is just what was done by the complainant herself in the original bill in this case. Complainant’s counsel, having ascertained in that proceeding that there is a good defense to a suit brought upon the note, now seeks to wipe out all that has been done by the guardian and by the complainant in respect of this note, and to proceed as though it had remained in the hands of Thomson.
   Mr. Justice James

delivered the opinion of the Court:

The case of Florence T. Mitchell vs. Charles P. Thomson is presented upon demurrer to an amended bill. The complainant states that she is the daughter of Emma D. Thomson, by her first husband, Quincy Thomas, who died in the State of Texas, in the latter part of the year 1853, intestate, leaving complainant en ventre sa mere, as his only surviving child; that shortly after the death of her father her mother removed, with complainant, from the State of Texas to the city of Philadelphia, and there, on or about the 23d day of February, 1888, married the defendant; that some time after this marriage her mother loaned to the defendant, her second husband, out of her separate estate, the sum of $2,000, and that, as a memorandum thereof, the defendant made and delivered to her mother a paper in the nature of a promissory note, the said paper being in words and figures as follows:

September 1, 1881.

Three years after date I promise to pay to the order of Emma B. Thomson two thousand dollars at interest of three per cent, per annum. Value received.

C. P. Thomson.

On this paper there were two indorsements in the handwriting of the defendant. “ December 7, 1881 [which was during the life-time of the wife] by cash on account of interest, $15.” “April 3d, 1883, by cash on account of interest, $17.” The date of the last indorsement being after the wife’s death, which took place on the 20th day of December, 1881, in the District of Columbia. The wife had this note in her possession at the time of her death. The bill further states that complainant’s mother, by her last will, devised to complainant all of the property of which she died possessed or to which she was entitled; but directing, among other things, that the said $2,000 should be invested for the benefit of complainant and her heirs, in real estate, free from the control of her husband ; and then nominated the defendant as executor; that the defendant, on the 2d day of June, 1883, petitioned this court, then holding a Special Term for Orphan’s Court business, to admit the said last will to probate, and to issue letters testamentary to him as executor thereof; all of which was duly granted; that the defendant thereupon duly qualified as such executor, proceeded to the administration of the estate of his testatrix and entered upon the trust. Complainant further avers that although the said $2,000 is imperatively directed to be invested in real estate, as the sole and' separate estate of the plaintiff, and although the defendant accepted this trust and has never in any way been discharged therefrom, yet he has wholly failed to perform the duties devolved upon him by the trust by investing the $2,000 as directed by testatrix. The prayer of the bill is that the executor be compelled to make the investment.

The principal defense presented on the demurrer is that the defendant’s liability, if there be any, is not that of a trustee, but is merely a personal liability for payment of the $2,000 of money personal, and that action is barred by the ■Statute of Limitations. It is clear that, if this be only a personal liability, then, as the bill was filed more than four years after the note became due, the statute would bar complainant’s demand; but if, on the other hand, defendant was charged with an express trust, that trust can still be enforced. Looking to the will we find that it merely directs that this $2,000 due by the husband shall be invested in real estate for the benefit of complainant. It does not, in express terms, direct that he shall be the trustee for that purpose, -nor does it say who shall make the investment. The question is whether the will is to be construed, notwithstanding, as making the executor trustee for that purpose. We think.that according to the American cases it should be so construed. In order to ascertain whether an executor is made a trustee to carry out a particular direction of the will the whole instrument is to be considered, and he may be charged as with an express trust if, by proper construction, the will imports that the trust is to be executed by him. It is not necessary that he should be designated nominatim, it is enough that he should be designated by 'construction; that is to say, by the intent of the will. In this case it appears that a certain fund in the hands of the executor is a purchase-money fund, directed to be- paid in the purchase of real estate. We think that the implication 'is immediate that this fund is to be applied to the purchase by the person who has it — in other words, that the executor is appointed trustee to purchase, and that he necessarily accepted that trust when he accepted the executorship.

It is conceded that the complainant could elect to take the money instead of the land, and' that by so doing she would waive the execution of the trust. But, on the other hand, she had a right to insist upon its execution. That matter vested exclusively with the beneficiary of the trust. Accordingly, counsel for the defendant claims that it appears by the proceedings in the Orphan’s Court, which are referred to in the bill and made part thereof, that the plaintiff has accepted the note given by the defendant for the said $2,000, and has thereby elected to accept the money, and has relieved the defendant of the trust. But the only papers referred to and made part of the bill are those belonging to the defendant’s account as executor, and no such fact is shown by these. It was asserted in argument that when complainant’s guardian settled his account, after she obtained majority, he turned over to her this note, which he had received from the defendant as her legacy, and that complainant accepted this note from him in settlement. It is clear that the guardian could not make the election. We are not prepared to say that complainant’s acceptance of that note from him was an act of which the defendant can avail himself as an acceptance from him, and a waiver of the trust, especially as he had not indorsed the note so as to give complainant legal title to it. But we are not called upon to decide that question, inasmuch as the guardian’s account and settlement, by which alone this acceptance by complainant is alleged to appear, are not referred to and made part of the bill.

We have spoken of the defendant’s debt as assets in his hands, capable of application to the trust. Our attention was called to the fact that the note was not due when the defendant accepted the executorship. But the rule which treats an executor’s indebtedness as assets is not confined to debts due at 'that time. If the debt matures at any time before his duties of administration cease, it then becomes assets. Griffin vs. Bauman, 9 Rich. S. C., 71. This note did mature before this bill was filed and before his duties had been really performed. We hold, then, that the defendant stands as having now in his hands the fund which should be applied in purchase of real estate. Accordingly we overrule the demurrer.

The decree of the Special Term is reversed, and the cause is remanded, with leave to answer.  