
    Trustee of W. CONNELLY’S Estate against KENDLE and ux.
    
    on CERTIORARI.
    This action was brought by the defendant in this court, against the plaintiff in certiorari, who had been appointed trustee by act of assembly, to execute and fulfill the purposes of the last will of William Connelly, deceased (the executor named in the will having died in the lifetime of the testator), for a legacy left Mary, one of the defendants, in the will of the said Connelly, she being a daughter of the testator’s wife. The defendant below, offered in proof of payment, a receipt of the said Kendle, one of the plaintiffs below, for the amount of the legacy, which receipt [*] was dated in June, 1804, and expressed to be in full of said legacy, paid him by John Connelly, Jun. The justice overruled this receipt, and rejected the testimony of the subscribing witness to the receipt, on the ground, as he states in his docket:
    “ 1st. The action at issue was not between John Connelly, Jun., and plaintiff.
    “ 2d. The receipt bearing date above two years prior to defendant’s being appointed trustee, by virtue of said act; it was no act or payment of his as trustee.
    
      “ 3d. As wholly repugnant to the aforesaid act.”
    The act was passed in November, 1806, and recites among other things, that the testator in his will had [236] directed that his estate after the decease of his wife, should be sold by his executor, and out of the money arising from the sale thereof, he did bequeath unto Mary Bendle, the daughter of his said wife, the sum of fifteen pounds; and the remainder of the money to be equally divided between the children of his brother John Connelly. The justice must have considered that this payment before the act was passed, by one of the devisees of the remaindei’, was to pass for nothing; and the trustee being directed by the act to execute the will, was bound to pay the legacy at all events, notwithstanding it had been paid before by young Connelly. But
    
      
       It is bo spelled in the act.
    
   The Court

being of opinion that the receipt ought to have been received in evidence, reversed the judgment.  