author: The Chancellor,

text:
    HANNAH LIPPINCOTT AND AQUILA S. RIDGEWAY, EXECUTORS AND TRUSTEES UNDER THE WILL OF HOPE COWPERTHWAITE, DECEASED, v. CHARLES STOKES AND THOMAS BUDD, EXECUTORS OF HOPE HAINES, DECEASED.
    1. H. C. bequeathed to W. L., since deceased, and A. S. R. and to the survivor of them, one-fourth part of her personal estate, in trust, to place the same at interest, and to pay- the interest arising thereon, yearly, to H. H., bo long as she shall live; and also, in trust, to pay to H. H. so much of the principal as she shall, from time to time, by writing under her hand, attested by two credible witnesses, require of the said trustees; and if she shall leave children living at her death, or descendants of such children, then that which shall remain undisposed of of the said one-fourth part, with its accumulated interest, shall belong to and vest in her children, to be paid to them at 21 years of age respectively, with further provisions in case she shall die without leaving children or descendants of children. H. H. died without leaving any child or any descendant of any child, and leaving a will by which, after giving a number of pecuniary legacies, she gives the residue of her estate, real and personal, to, &c.
    2. One question decided in the cause was whether H. H. had withdrawn from the trust any of the fourth part bequeathed to her, in the mode directed by the will, or by any act which could be considered equivalent to it.
    3. The court may aid a defective execution of a power, but will not supply the execution where none has been attempted or intended.
    4. Where the circumstances are so equivocal as to leave the mind in doubt whether an execution of a power was at all intended, the court should not interpose. An intention to execute the power should clearly appear.
    5. The executors of the will of H. H., having obtained possession of securities belonging to the trust fund, were ordered to restore them to the trustee.
    6. The claim made by the bill under the words “ accumulated interest” in the will was denied — the court holding the words to apply only to the interest remaining unpaid to H. H. at her death.
    7. Where securities for money are made payable to two persons, the surviving payee or obligee is entitled to the custody of them and to collect the money on them; and the representatives of the deceased co-payee or coobligee are not at liberty to take half of them, in amount, from his possession.
    Hope Cowperlhwaite, deceased, late of Mount Holly, in this state, died in March, 1820, having first duly made and published her last will and testament, and a codicil thereto, by which, after giving certain pecuniary legacies, she bequeathed her personal estate in four shares; each share to trustees for certain beneficiaries. She bequeaths one-fourth in trust for her sister, Rebecca Zilley. It is not necessary to state particularly the provisions of this trust.
    She gives and bequeaths to her son, Wallace Lippineott, and her grandson, Aquila S. Ridgeway, and to the survivor of them, and to the executors, &o., of such survivor, one other equal fourth, in trust, to place the same at interest, and to pay the interest arising thereon, yearly, to her daughter, Hope Haines, as long as she shall live; and to pay Hope so much of the principal of the said fourth as she shall, from time to time, by writing under her iiand attested by two credible witnesses, require of the said trustees ; and on the death of Hope, leaving children at her death, what shall remain undisposed of of this fourth, with its accumulated interest, to go to the children ; but if she should die not leaving any child or descendant of any child living at her death, then that the said trustees (Wallace Lippineott and Aquila S. Ridgeway) pay such part of this fourth as may remain undisposed of at the death of Hope Haines, with its accumulated interest, unto such of the brothers and sisters of Hope Haines, or their children, and in such proportions as the said Hope shall, by will, or writing in nature thereof, signed by her hand and attested by two credible witnesses, direct and appoint; the said Hope to have power to dispose of the same only among her brothers and sisters and their children ; and on the death of Hope Haines, without leaving any child living at her death, or descendant of such child, and without any such appointment, then that the said trustees pay the same to the brothers and sisters of the said Hope Haines, in equal portions, the share of any sister that may be married to be paid to her trustee, for her separate use, free, .&a.; the children of any deceased brother or sister to stand in the place of his, her or their parent, and to take that parent’s share, equally between them, if more than one.
    The will provides that the trustees and the survivor of them, and all trustee and trustees thereafter to be appointed, shall, from time to time, at the reasonable request, costs and damages of the said Hope Haines, for the better carrying on the trusts aforesaid, appoint one or more new trustee or trustees, (excepting any husband of the said Hope Haines,) who shall, from time to time, be nominated by the said Hope Haines, with like-powers, &G.

    The will gives another fourth to her son, Wallace Lippincott,. and her said grandson, A. S. Eidgeway, and to the survivor of them, and the executors, &c., of the said survivor, in trust, to put the same at interest, and to pay all the interest arising therefrom, yearly, to her daughter, Hannah Lippincott, so long as she shall live, and also to pay Hannah so much of the principal as she shall, from time to time, by writing, &c., (as in the foregoing case,) require; and if Hannah should die without leaving any child, or descendant of such child, then the said trustees to pay such part of this fourth as may remain undisposed of at the time of her death, with its accumulated interest, unto such of the brothers and sisters of Hannah and their children, and in such proportions as Hannah shall (in the way provided in the case of Hope) direct and appoint, but only among her brothers and sisters and their children, with like provision as in case of Hope, if she, Hannah, makes no such appointment, and with like provision as to new trustees.
    By the codicil, she appointed Aquila S. Eidgeway an executor of her will, in conjunction with Hannah Lippincott and HopeHaines.
    Hope Cowperthwaite died iu 1829. The three executors proved the will. Wallace Lippincott, the only co-trustee with Aquila S. Eidgeway of the fourth bequeathed in trust for Hope Haines and those connected with that trust, died in June, 1837, leaving Aquila S. Eidgeway sole trusteee of that fourth. And, since the death of Hope Haines, the complainants, Hannah Lippincott and Aquila S. Eidgeway, are the surviving trustees of another fourth bequeathed in trust for Eebecca Zilley. And' Hannah Lippincott and Aquila S. Eidgeway are also, since the death of Hope Haines, surviving executors of the will of Hope Cowperthwaite.
    Hope Haines died in January, 1844, leaving a will, and appointing Charles Stokes and Thomas F. Budd, the defendants in this case, executors thereof, and trustees for certain purposes therein specified. This will gives $2000 to the children of a niece; $2000 to the children of another niece; $120 a year (<» a nephew, during his life, and on his death the principal sum of ' $2000 to be divided among his children and the children of any deceased child of his, and if he leave no child, or descendant of any, the said $2000 to be divided, at his death, between his sisters and the children of his deceased brother; the said children taking one-third; $2000 to a son of a deceased nephew; $1000 each, to two daughters of a deceased nephew, and $30 a year L> their mother, during her life; the interest of $400 a year to her sister, Rebecca Zilley, during her life, and at her death, the said interest to be paid to two daughters of the said Rebecca, during their lives, and after their deaths, to their children; (and carrying the trust provisions further, and authorizing her nieces to elect new trustees, not their husbands;) the interest of $2000 a year to Aquila S. Ridgeway, (a nephew,) after the death of his present wife, if he should outlive her, and at his death, the said $2000 to be divided among his children, (and providing for the children of any deceased child, and that if his present wife should outlive him, then, at his death, the said $2000 to be divided among all her nieces and a nephew and the children of a deceased nephew.) The will then devises and bequeaths all the rest, residue and remainder of her estate, real and personal, to be equally divided between the child or children of Aquila S. Ridge-way and her sister, Rebecca Zilley.
    This will is dated November 17th, 1841, and is executed under seal, in the presence of three witnesses.
    Hope Haines left both real and personal estate of her own, unconnected with the trusts under the will of Hope Cowperthwaito; and her personal estate was more than sufficient to pay ' the legacies given by her will.
    After the death of Hope Haines, the executors of her said will went to the house where she and her sister Hannah had resided, and where Aquila S. Ridgeway, until his marriage, had lived with them, and where Hannah Lippincott yet lived; and a box containing individual papers of Hope Haines, as well as the papers claimed by the bill to be trust papers, being shown to them, took an inventory and appraisement of what were admitted to be Hope Haines’ separate, individual securities, and •also inventoried and appraised as belonging to her estate, the one-half, in amount, of the securities claimed in the bill to be-long to the trusts created by Hope Cowperthwaite’s will, and" took possession of and carried away securities claimed by the bill as belonging to the said trusts, to the amount of half, and •somewhat more, of the whole amount of the said securities.
    The bill is filed by Hannah Lippineott, Aquila S. Ridgeway and Rebecca Zilley, against Charles Stokes and Thomas F„ Budd, personally, and against them as the executors of the last will and testament of Hope Haines, deceased; and prays that they may render an account of all the securities taken by them belonging to the trusts created by Hope Cowperthwaite’s will ; ind that an account may be taken, under the direction of the .¿ourt, of the whole of the said trust funds which were in the hands of Hope Haines, with the accumulated interest thereon ; and that they may be decreed to pay over to the complainants, Hannah and Aquila, the amount in their hands fijund to be due from the estate of Hope Haines to the said trust estate, and to deliver to them, Hannah and Aquila, as trustees under the will of Hope Cowperthwaite, all securities for money taken by the defendants which may be found to belong to the said trust estate and to the complainants, Hannah and Aquila, as trustees as aforesaid, or either of them; and to pay over to the said Hannah and Aquila all moneys received by the defendants on the securities belonging to the said trust estate, with interest thereon ; and that the several trusts created by the will of Hope Cowperthwaite may be established; and that the complainants, Hannah and Aquila, may be declared to be the trustees and trustee of the respective parts of the said trust funds, according to the provisions of the will of Hope Cowperthwaite, and according to their respective rights in the premises.
    In addition to the foregoing facts, the bill states that Hope Haines had the control and direction of the business and money -affairs, as well of the family, as of the estate of the testatrix,Hope Cowperthwaite. That on the 25th June, 1839, it was ascertained that the personal estate of Hope Cowperthwaite, deceased, bequeathed in trust, amounted to $58,954; that by a-statement in the handwriting of Hope Haines, it appears that on that day there was, of the said trust funds, remaining in the-hands of the said trustees, $48,754.80, consisting of securities for money; that there had been paid to the complainant, Rebecca Zilley, on account of her portion of the said trust estate, $2433, and that on,that day there was allotted to her securities, amounting, with the interest thereon, to $12,255, as and for her portion of the said trust estate; and that there was then allotted to the said Hope Haines, and the complainant Hannah Lippincott, out of the said trust funds, securities amounting, with the interest due thereon, to $29,429.80, as and for their portions of the said trust estate, the share of each amounting to $14,714.90; and that, on the same day, there was allotted to the complainant Aquila S. Ridgeway, out of the said trust funds, bonds and mortgages, amounting, with the interest thereon, to $7700, as and for his portion of the said trust estate; it being a part of the portion bequeathed in trust for his mother, Martha' Woolston, the residue of the said portion having been paid over to the complainant Aquila, absolutely, in pursuance of the direction of the codicil to the will of Hope Cowperthwaite. The bill charges that on the said June 25th, 1839, the said sum of $48,754.80 was in the hands of the said Hope Haines, and of the surviving trustees of the will of Hope Cowperthwaite, for the purposes of the trusts thereby created. That Hope Haines did not, by writing under her hand, attested by two credible witnesses, require of the said Wallace Lippincott, and the complainant Aquila, trustees as aforesaid, or of the survivor of them, any of the principal money of the fourth part so bequeathed in trust for her, but that the whole of the said principal money continued as a part of the trust fund up to the death of the said Hope Haines, and still of right continues part thereof. That no part of the share of the said Martha, or of the share of the said Rebecca, or of the share of the said Hannah, (except as to so much of the shares of Martha and Rebecca as have been paid as aforesaid,) has ever, by writing under the hand of the said eestuis que trust, respectively, or either of them, attested by two witnesses, been demanded of the trustees of the said several legacies, or of the survivors or survivor of them; but that the whole of the said legacies, except as before excepted, still remain part of the trust fund.

      The complainant Hannah charges that the trust as to her fourth was never destroyed, or determined, nor intended so to be, but that she considers the said trust as still subsisting, and that the said Hope Haines, as she always understood and believed, as well from the declarations as from the actions of the said Hope Haines, always considered and wished it to be understood as to her, the said Hope Haines’ share, that the trust in relation thereto was subsisting at her death, and that it should continue; and that the said Hope Haines repeatedly expressed an anxious desire and settled purpose, on her part, that the trusts as to the whole of the said trust funds should be continued and in no wise impaired.
    The complainant Hannah further charges that neither Hope Haines nor she, the said Hannah, ever executed any writing changing or determining the said trusts, as to their respective shares, or withdrawing from the said trusts any part of the principal of the trust funds. The bill states that from the time of the death of Hope Cowperthwaite, Hope Haines and the complainant Hannah Lippincott, as executrices of the said will, had the management of the estate of Hope Cowperthwaite, deceased, and the possession and control of the trust funds belonging thereto, and that on the 25th June, 1839, after the duties jf the executors touching the said estate had been discharged, and after the trust funds had passed into the hands of the trustees, the said Hope Haines, having great confidence in her own management of money affairs, and an excessive love of money and of power, insisted on retaining the whole of the trust funds in her own hands and under her own control; and that the complainants Hannah and Rebecca yielded to her solicitations, and the complainant Aquila having had difficulties with the said Hope Haines, in regard to the disbursement of his own funds by her, as one of the executors of the will of Hope Cowperthwaite, and being desirous of avoiding all altercations with her, also consented to her wishes; and that it was accordingly agreed by and between Hope Haines and the complainants Hannah and Aquila, that the complainant Aquila should forbear to act as trustee, and that the whole trust funds to which Hope Haines and the complainant Hannah were, respectively, entitled, and of which the complainant Aquila was the sole surviving trustee, should remain in the hands of the said Hope Haines and the complainant Hannah, respectively. That the said Hope Haines and the complainant Hannah did, by writing under their hands and seals, dated the said June 25th, 1839, declare that the complainant Aquila was to remain the trustee of the said Hope Haines and the complainant Hannah, and did thereby exonerate him, (so far as they were personally concerned,) from all liability which lie might incur from permitting the said portions, with the evidences and securities thereof, to remain in their hands and under their control. That in pursuance of the said arrangement, and at the special solicitation of the said Hope Haines, the complainant Aquila, surviving trustee as aforesaid, did permit the whole of the funds so bequeathed in trust for the said Hope Haines and the complainant Hannah to remain in their hands, and that they did, until the death of the said Hope Haines, remain in their hands without being divided between them, the said Hope and Hannah. That on the said June 25th, 1839, it was further agreed by and between the said Hope Haines, the complainants Hannah and Rebecca and the complainant Aquila, that the portion bequeathed in trust for said Rebecca should remain in the hands of the said Hope Haines and the complainant Hannah, with the securities thereto belonging, under their management and control, without any interference of the complainant Aquila, though he was to remain a trustee for the said Rebecca; and that the complainant Rebecca, by writing under her hand and seal, dated the same June 25th, 1839, did, so far as she was personally concerned, release the complainant Aquila from all liability for permitting the said trust funds and the securities therefor to remain in the hands of the said Hope and Hannah, and under their control; and that the complainant Aquila, one of the trustces of the said Rebecca, did, in pursuance of the said arrangement, and at the special solicitation of the said Hope Haines, permit the said fund so bequeathed in trust for the said Rebecca, with the securities therefor, to remain in the hands of the said Hope and Hannah j and that the same, ever after, until the death of the said Hope, did remain in their hands and subject to their management and control.

      . The bill states that the said Aquila has never renounced the trusts so confided to him; that at the time of the agreements aforesaid, it was distinctly understood and agreed that the complainant Aquila should remain a trustee of the said trust funds; and that the complainant Aquila has always continued and still is a co-trustee, with the complainant Hannah, of the share of the said Rebecca, and the sole surviving trustee of the shares of the said Hope Haines and the complainant Hannah; and that he still remains liable, as trustee, for the faithful execution of the said trusts, except in so far forth as he was discharged from liability by the releases aforesaid.
    The complainants Hannah and Rebecca say that, by reason of the age and infirmity of the complainant Hannah, she is becoming inadequate to the sole management of the said trust funds, and that they are desirous that the complainant Aquila should assume the management of the funds bequeathed in trust for them, respectively.
    The complainant Hannah says that, after the said June 25th, 1839, the whole of the said trust funds so left in the hands of the said Hope Haines and her, the said Hannah, together with the share of the said trust funds belonging to the complainant Aquila, with the securities therefor, remained in the hands and under the management and control of the said Hope Haines and the complainant Hannah until the death of the said Hope, the accounts thereof being kept solely by the said Hope.
    The bill states that, by a statement in the handwriting of the said Hope Haines, dated June 25th, 1843, now in the possession of the complainant Hannah, it appears that (here was then in the hands of the said Hope Haines and the complainant Hannah securities for the payment of money, belonging to the said' trust funds, amounting to $61,347.37; and the complainants-believe that the said writing contains a true enumeration of the-securities belonging to the said trust estate, and the amount thereof on that day, and that the whole of the said sum, with the accumulated interest thereof, belongs to the said trust estate.
    That Hope Haines died in January, 1844, leaving a will,, dated November 17th, 1841, of which she appointed the defendants Charles Stokes and Thomas F. Budd, executors, therein arid1 thereby also appointing them trustees for certain purposes therein specified.
    The bill charges that the said Hope Haines did not, by her will, make any direction or appointment, as authorized to do by the will of Hope Cowperthwaite, deceased, of the part of the fourth part of the personal estate of the said Hope Cowperthwaite, deceased, so bequeathed in trust for the said Hope Haines, remaining undisposed of, with its accumulated interest, at the death of the said Hope Haines, or of any part thereof; but that said Hope Haines died not leaving any child living at her death, nor descendant of such child, and without having made such appointment as aforesaid ; and that the whole of the said Hope Haines’ share, with its accumulated interest, remains subject to the said trusts created by the will of Hope Cowperthwaite, and for the due performance of which the complainant, Aquila, as the sole surviving trustee, is alone responsible.
    The bill states that Hope Haines died possessed of a large personal estate in her own right, independent of the said trust funds, more than sufficient, as the complainants are informed and believe, to pay all her debts and all the-legacies bequeathed by her will. That the said Charles Stokes and Thomas E. Budd, on or about March 5th, 1844, under pretence of making an inventory and appraisement of the goods, chattels and credits which were of the said Hope Haines, deceased, as executors of her will, caused to be inventoried and appraised a large number of securities for money, amounting, as the complainants have been informed and believe and charge the truth to be, to $56,991.17; that the said Stokes and Budd, under pretence that the said securities were jointly owned by the said Hope Haines and the complainant Hannah in their own rights, caused one-half of the amount then due on the said securities to be appraised as the personal property of the said Hope Haines; whereas the complainants charge, and they say that it so appears on many of the said vouchers, that the securities so inventoried and appraised were and are a part of the said trust estate ; and that the complainants Hannah and Aquila, or one of them, as trustees as aforesaid, or (as to the securities standing in the name of Hope Cowperthwaite, deceased,) as surviving executors of the will of Hope Cowperthwaite, or (as to the securities given or assigned to the said Hope Haines and Hannah Lippincott jointly) the complainant Hannah, as surviving payee, are or is entitled to have and hold each and every of the said securities so inventoried and appraised by the said Charles Stokes and Thomas F. Budd.
    The bill states that Stokes and Budd, among the securities so inventoried by them, included not only the securities in which the said Hope Haines, in her lifetime,.was interested as cestui que trust, but also a large number of securities which were in her hands as one of the trustees under the will of Hope Cowperthwaite, deceased, partly in trust for the complainant Rebecca, and partly in trust for the complainant Aquila, and .which, on the death of Hope Haines, belonged to the surviving trustees under the will of Hope Cowperthwaite, and in which the said Hope Haines never had any beneficial interest. That a part of the securities so inventoried by Stokes and Budd were given to the said Hope Cowperthwaite, deceased, in her lifetime, and are still standing in her ñame, which securities can be collected only by the complainants Hannah and Aquila as surviving executors of the will of Hope Cowperthwaite, who alone can give a discharge for the money, or acknowledge satisfaction on record of the mortgages. That Stokes and Budd, not satisfied with pairing an inventory of the said bonds, mortgages, and other securities, under pretence of making a division thereof between the estate of Hope Haines and the complainant Hannah, on or about May 5th, 1844, against the remonstrances of the complainants Hannah and Aquila, took into their possession, out of the custody and possession of the complainants Hannah and Aquila, the following bonds, mortgages, and securities belonging to the trust estate under the will of Hope Cowperthwaite, that is to say, (specifying them particularly,) amounting, in all, to $28,651.
    The bill states that, on the 9th May, 1844, the complainants Hannah and Aquila, by their duly authorized attorney, demanded of Stokes and Budd the bonds, mortgages, and other securities so taken by them, and demanded that they should be restored to them, the complainants; but that the said Stokes and Budd refused to deliver the same to them, the said complainants, or to their attorney, and still unlawfully detain the same from the said complainants Hannah and Aquila; that the said Stokes and Budd have collected money on the said securities, and are still, as the complainants are informed and believe, proceeding to collect money thereon, and to dispose of said securities, against the will of the said complainants Hannah and Aquila; that the said Stokes and Budd, executors as aforesaid, under pretence of making an inventory and appraisement of the goods, chattels and credits which were of Hope Haines, deceased, on or about May 5th, 1844, caused to be inventoried and appraised, and took into their possession, as the sole property of the said Hope Haines, a bond and mortgage made by William Warner, Jr., to the said Hope Haines, dated 3d month 25th, 1842, for $4547.20, on which a large arrear of interest had accrued; and that the said Stokes and Budd still retain possession thereof, or have disposed of it, without the permission and against the will of the complainants, Hannah and Aquila, which last-mentioned bond and mortgage, the bill charges, belong to the complainants, Hannah and Aquila, trustees as aforesaid, under the will of Hope Cowperthwaite.
    The defendants put in their joint and several answer, in which, after admitting the will of Hope Cowperthwaite, deceased, and the codicil thereto, as stated in the bill, they say that, as to the allegation in the bill, that on the 25th of June, 1839, it was ascertained that the personal estate of Hope Cowperthwaite, deceased, bequeathed in trust as aforesaid, amounted to $58,954, they have no personal knowledge; and that the papers and writings of Hope Haines, which might and probably would throw light on the matter, have been taken, and are withheld from them, as in their answer is afterwards stated; that as to the statement in the handwriting of Hope Haines, which the complainants allege is in their possession, they have no such knowledge as will enable them to answer whether the contents thereof are truly set forth, or whether the whole of its contents have been set forth in the bill; that they have reason to believe, that at or about the time for that purpose mentioned in the bill, some statement was made in regard to the rights and interests of the complainants and the said Hope Haines, under the will of Hope Cowperthwaite, deceased ; that the amounts severally due Rebecca Zilley and Aquila S. Ridgeway, after deducting what ,had been paid to each, of them, was then ascertained; that Aquila assigned over to Hope Haines and Hannah Lippincott all his right and interest in the bonds and securities which had ■been given to them as executors, or to which, as executors, they were entitled, and in which the said Aquila appeared to have any legal interest, with some few exceptions; that the said Hope .and Hannah thereupon took or retained possession of the whole of said bonds and securities; that at the same time, as these defendants have understood, Hope Haines and Hannah Lippincott executed and gave to the said Rebecca and Aquila some obligation or writing or writings, by which they became bound to Rebecca and Aquila to the amount of their shares, respectively, as then ascertained, but who thereupon became legally or -equitably entitled to the said securities, the defendants submit to the judgment of the court; that from the papers they saw and the assignments thereon, and other information, they are induced to believe, that from the time of such ascertainment, Hope Haines and Hannah Lippincott took possession of their several shares under the will of Hope Cowperthwaite, as their' own individual and separate property, for their common benefit; that up to that period, bonds and securities were taken, and the business conducted in the names of Hope Haines and Hannah Lippincott, as individuals.
    They say that, after the time when the said shares were ascertained as aforesaid, as these defendants have understood, and after the assignment of the bonds and securities by the said Aquila to the said Hope Haines and Hannah Lippincott, the said Aquila did not, in any wise, act as trustee; and whether he considered himself still as trustee, and liable as such, or whether he actually continued to be such trustee, in. law or in fact, they cannot answer'.
    They say they are not informed, or able to answer, whether Hope Haines did or did not, at.any time, require of the said Wal-Jace Lippincott and Aquila S. Ridgeway, or the survivor of them, .in the mode provided in the will of Hope Cowperthwaite, any part of the principal of the fourth of the personal estate of Hope Cowperthwaite; nor whether the whole of the said principal money continued as a part of the said trust fund up to the death of Hope Haines, and still of right, so continues. That they were under the impression and belief, when they qualified as executors of the will of Hope Haines, that the principal of the said one-fourth part had in some way become the absolute property of the said Hope Haines, and that she so considered it in her lifetime, and that the same was so considered and understood by the complainants; but whether the said principal has in fact and in law become the property of the said Hope Haines, or whether it remains a trust fund, they submit to the determination and direction of the court. They say they have understood and believe that, after the death of Hope Cowperthwaite, Hope Haines and Hannah Lippineott, as executors of her will, had the management of the estate and the possession and control of the funds belonging thereto ; but whether, after the duties of the executors were discharged, the said Hope Haines insisted on retaining the whole of the trust funds in her hands, and under her own control, they are unable to answer ; nor can they answer how far or on what consideration the complainants yielded to such insistment; nor whether it was agreed that the‘whole of rhe trust fund to which Hope Haines and Hannah Lippineott were respectively entitled should remain in the hands of the said Hope Haines and Hannah Lippineott; nor whether the said Hope Haines and Hannah Lippineott, at the time in that behalf meutioned in the bill, did, by writing under their hands and seals, declare that Aquila was to remain the trustee of the said Hope Haines and Hannah Lippineott, and did exonerate the said Aquila from all liability by reason thereof, so far as they were personally concerned ; nor whether, in pursuance of the said arrangement and at the special solicitation of the said Hope Haines, the said Aquila permitted the whole of the said trust fund bequeathed for the benefit of the said Hope and Hannah to remain in their hands; but they believe that the amount of their said shares was, at the death of Hope Haines and for several years after had been in the hands of Hope Haines and Hannah Lippincott; that money was loaned and securities taken therefor in their own individual names, and that the whole business in relation thereto was managed and conducted without reference to any ■trust whatever. That, though it may be, as stated in the bill, that no actual separation or division of the said fund, or the securities belonging to it, ever took place between Hope Haines and Hannah Lippincott, yet the defendants believe that the said Hope Haines, who was the principal accountant, did, from time to time, make out a statement of the funds in the possession of herself and Hannah ; and, after giving credit, or deducting such amount as they might be liable for to Aquila and Rebecca, or as would be sufficient to meet the obligations or engagements so given and made to them as aforesaid, the balance remaining was divided into two equal parts, and one part designated as belonging to the said Hannah Lippincott, and the other as belonging to the said Hope Haines.
    They say it may be true, as stated in the bill, that it was further agreed, at the time aforesaid, by and between Hope Haines and the complainants, that the portion of the trust funds belonging to Rebecca should remain in the hands of Hope Haines and Hannah Lippincott, to be managed by them, without auy interference on the part of Aquila, the still remaining trustee; and that Rebecca did release Aquila from all liability by reason thereof; and that, in consequence thereof, Aquila permitted the said fund so to remain; but they say they have no knowledge of the said agreement, and can neither admit or deny it.
    They say they have understood, however, and did suppose and believe, that when the portions due Aquila and Hannah were ascertained, or the securities constituting the same were left" in the hands of the said, Hope and Hannah, they, the said Hope and Hannah, by their own individual obligations or other writings, became personally responsible to the said Aquila and Hannah, severally, for their respective shares, and that thus being equitably entitled to the securities constituting said shares, they took the same as their own, and managed thé whole as one common fund; especially as most of said securities were actually assigned over by Aquila to the said Hope and Hannah.
    They admit that Hope Haines did not, by her will, make any direction or appointment of the fourth part of the residue of tüe personal estate of Hope Cowperthwaite, as such residue as authorized todo by the will of Hope Cowperthwaite; but whether iu the will of Hope Haines any such appointment or direction has been made as is authorized by the will of Hope Cowperthwaite, or whether the whole of the said Hope Haines’ sitare, with its accumulated interest, or any part thereof, remains subject to the trust created by Hope Cowperthwaite’s will, they submit to the decree and direction of the court.
    They admit that Hope Haines died possessed of a valuable personal estate, independent of the trust fund bequeathed by Hope Cowperthwaite, and they have supposed that her personal estate, exclusive of her said trust fund, would be sufficient to pay her debts and the legacies bequeathed by the will, and leave a surplus for the residuary legatees; but that they are now under the impression that if the claims made in the complainants’ bill are all allowed, and the one-fourth, with the accumulated interest thereon, be decreed to be a trust fund lo be applied according to the will of Hope Cowperthwaite, there; will not be sufficient to pay the debts, expenses and pecuniary legacies, and that the residuary bequests will remain entirely unprovided for.
    They admit that on or about March 5th, 1844, they, as such executors, caused to be inventoried and appraised what they considered and believed to be the goods, chattels and credits of Hope Haiues, deceased; that in the said inventory are included— First, the bonds, notes and other securities payable to the said Hope Haines, or assigned to her, and which they believed to be her own separate property, amounting to $21,44.3.30.
    Secondly, certain bonds, notes and other securities payable to Hope Haines and Hannah Lippincott, or standing in their names, amounting to $15,616.26, which said bonds, notes and other securities being payable to or assigned over to the said Hope and Hannah, the defendants charged themselves iu the said inventory with half the amount of each security, as the property of the estate of Hope Haiues.
    Thirdly, certain other bonds, notes and securities, some of which were originally payable to Hope Cowperthwaite, in her lifetime, and others of which were payable to the executors of her will, after her death, and others of which were assigned over to the said executors.
    These securities being fount] with the other securities of the said Hope Haines, deceased, and almost all of them having been assigned over to the said Hope Haines and Hannah Lippincott by the said Aquila, either as executor of or as trustee under the will of Hope Cowperthwaite, and the said Aquila representing, at the time of taking said inventory, and appraisement, that the bonds which had no such assignment on them were in that condition only because he had omitted to make the necessary and proper assignment thereon, and that he claimed no property or interest therein, as he held an obligation against the said Hope Haines and Hannah Lippincott for his interest in the estate, these defendants, under the impression and belief that there had been some settlement made between and among the persons interested in the personal estate of Hope Cowperthwaite, deceased, and that Hope Haines and Hannah Lippincott had given to Aquila and Rebecca their individual obligations for the amounts due them, severally, and were therefore personally responsible therefor, and that the said bonds, notes and other securities so given and assigned, and so found as aforesaid, were the individual property of the said Hope Haines and Hannah Lippincott, and that the estate of the said Hope Haines had an equal interest therein, charged themselves in the said inventory with one-half aforesaid; that in so doing they acted in good faith and according to the best of their judgment, from the facts and circumstances before them and within their knowledge; that the whole amount of the securities last mentioned was, at the time of taking said inventory, $41,375, and that they charged themselves with the half thereof.
    That at the time of taking said appraisement and inventory, Aquila made no claim to the bonds or to any part thereof, either as executor, or as trustee, or in any other capacity, nor did he represent himself to these defendants as a trustee, or as having any interest in the said property, either as trustee, or cestui que trust; that there was nothing in the said bonds or securities, or any of them, to show the defendants that Aquila or Rebecca had '.any interest in them, except that one of said bonds, originally given for $1000, was made payable to Hope Haines and Han* nab Lippincott, trustees of Rebecca Zilley, and one other, for $270, was drawn payable to them as trustees generally.
    They admit they took into their possession, among others, the several bonds and mortgages specified in the bill; but do not admit that the said securities are part of a trust fund, nor can (they answer as to their character further than they have answered.
    They deny that they were taken out of the custody of Hannah Lippincott and Aquila S. Ridgeway against their will and remonstrance, as is alleged in the bill; and allege the truth to be that, after some conversation between them, the defendants, and Aquila and Hannah, in regard to the disposition of the said bonds and mortgages, it was eventually agreed that one-half, in amount, of all the bonds and securities, (excepting those payable to or standing in the name of Hope Haines alone,) should be retained by the defendants as executors as aforesaid, and that the other half should be given up and delivered over to Hannah Lippincott, which was accordingly done by these defendants; and the same were taken and received by the said Hannah; and each party gave to the other a list of the bonds and securities so taken and received.
    They say that the said bonds and securities were not in the possession of the said Hannah and Aquila, or either of them, but in the custody of these defendants ; that they were in the same chest in which were found the other bonds and papers of Hope Haines; which chest was delivered to them, as executors of her will, together with the key of it j that after taking the inventory, they took with them the bonds and securities belonging to the estate of Hope Haines, deceased, and retained possession of the key, (leaving the chest at the late residence of the said Hope Haines, in which chest were many papers appertaining to the estate and business of Hope Haines, deceased, which had not been carefully examined,) until the key was, at the request of Ab. Brown and John R. Slack, Esquires, delivered to them, in confidence, that they might examine the papers and other writings remaining in the chest, for the purpose of arriving at some conclusion or getting some information as to the trust or trusts set up iu the bill and the management of the said property by the said Hope Haines, or by the said Hope Haines and Hannah Lippincott.
    They say that the key was delivered to Brown and Slack as the agents or friends of the complainants, or some of them, as they understood, in the full belief that it would be returned to them; but that it has never been returned, and that the key, with the chest and the papers therein have ever since been withheld from them, though they have demanded them, considering that they were entitled to them, and that they might be aided by them in the proper Understanding and prosecution of their rights and duties as such executors; and they say they suppose and believe, that the statements, papers and agreements, or some of them, specified in the stating part of the complainant’s bill, were found in the said chest; and they hope that the fact that they have had no opportunity carefully to examine these papers will satisfaptorily account for the imperfect answers they have been obliged to give to various parts of the bill.
    They admit that Abraham Brown, about the time in that respect stated in the bill, demanded of them the bonds or obligations in their hands, and that they declined surrendering them either to him or to the said Aquila and Hannah; but say they have repeatedly offered to the complainants, or some of them, to surrender up to Rebecca and Aquila obligations, or pay over to them money, equivalent in amount to the obligations or agreements by them held against the said Hope Haines or her estate, whenever the said Aquila and Rebecca would deliver up to the defendants the said agreements or obligations; and that they are still willing to do so.
    They admit they received moneys on some of the securities; but say they have not, in any instance, solicited payment, being desirous that the moneys should remain as invested so long as any question was made as to its appropriation or ownership ; and that most of the money they have received has been deposited iu bank for safe keeping, the residue having been placed at interest.
    They admit that they inventoried .and took possession of, as the separate property of Hope Haines, the bond and mortgage given by William Warner, Jr., to Hope Haines, dated 3d month 25th, 1842, for §4500, stated in the bill, as they supposed they had an undoubted right to do; but deny that they did so against the will of Aquila and Hannah, or either of them, as far as they know; and they deny that at the time of the filing of the bill they had disposed of th© said bond and mortgage; but they allege that after the bill was filed, Warner proffered himself ready and desirous to pay off the said bond and mortgage, and that the defendants, finding that it was claimed in the bill as trust property, and denied to be the separate property of Hope Haines, declined, on that account, to receive the money; whereupon Warner tendered the money in specie, and that the defendants, not feeling at liberty to refuse it, received the money and deposited it in bank for safe keeping; and they deny that the said bond and mortgage is a part of the trust fund, or in any way connected with it, so far as they have any knowledge.
    They say they are willing to render a true account of all the .securities which came to their Lands as executors aforesaid, and that the inventory, a copy of which is annexed to their answer, contains such account, as they verily believe.
    They say they have always been and still are ready and willing to pay over or deliver to Aquila and Hannah any money, securities or other property in their hands, as soon as it may be ascertained that the same belongs to the said Hannah and Aquila, or either of them, or that they are entitled to the custody of ihe same, as trustees or otherwise, and they, the defendants, be indemnified and made safe in so doing; that they are desirous to act under the direction of the court, and to have the benefit of ■its protection; the more especially as those who claim under the residuary bequest in the' will of Hope Haines, or some of them, allege and insist that the whole of the fourth part of the estate of Hope Cowperth waite, which was given in trust for the benefit of Hope Haines, became, according to the requirements of the trust, or in some other way, in the lifetime of said Hope Haines, the separate and sole property of the said Hope Plaines; that the same was withdrawn from the trust fund, and that it now constitutes a part of the estate of said Hope Haines; and particularly, they insist that the interest on said share, the said share being in the actual possession of the said Plope Haines, in her lifetime, and the interest received by her, constitutes .&■ part of the separate estate of said Hope Haines, even if it should be ascertained that the share itself is trust property.
    They further say that according to the terms of the trust in Hope Cowperthwaite’s will, the interest on the share given for the benefit of Hope Haines, and the other eestuis que trust, was payable annually; that they have understood and believe, that in the lifetime of Hope Haines, she paid the interest annually to-Aquila and Rebecca on the account for which they held the obli — - gations of the said Hope Haines and Hannah Lippincott; that as to the interest annually and accruing and received by the said Hope Haines, on her share of the said fund, they are unable to ¿ay when the same was invested, or in what securities; and whether, if a trust be established, and the said share be decreed to be held in trust for the purposes of Hope Cowperthwaite’s will, the said interest, or any part of it, shall be considered as belonging to said trust, they submit to the court, and say they are ready to abide its decision and indemnity. But they submit that they are not responsible for any loss that may accrue, in case the trust be established; that they have acted in good faith, on the facts and information before them, and on the advice of counsel, and thrown no obstacle in the way of a speedy decision and adjustment of the rights and claims of all who may be interested.
    And they further say that the complainants, having withheld from them the papers, which they, the complainants, now insist establish the trust and their right to the said bonds and securities, or a part thereof, have no just grounds of complaint against them.
    They further say that Hope Haines never, as they believe, re-ceived any commission or other compensation for her services as one of the executors of Hope Cowperthwaite’s will; and submit that her estate is entitled to a proper allowance for the same,, and for any services rendered to the complainants in and about the management of the property.
    A copy of the inventory and appraisement caused by them to be made of the property inventoried as the property of Hope Haines, is annexed to this answer.

      Interrogatories were exhibited by the defendants to the complainants.
    In answer thereto, Rebecca Zil ley says that she received from the executors of her mother’s will, on account of her share, prior to 1839, $2483. The money was handed to her by Hope Haines, the acting executor. This is all she has received.
    Aquila, iu answer to the said interrogatories, says he received of the residuum of the estate of Hope Cowperthwaite, from Hannah Lippincott and Hope Haines, executors of.and trustees under the will of Hope Cowperthwaite, prior to June 25th, 1839, in different sums, at different times, $5938; that though Hope Haines was, on that occasion, the acting person, the business was done in the names of both his trustees, Hope and Hannah. The securities he received were assigned to him by both of them. That on the 25th June, 1839, he received the further amount of $1781.73. These sums were in full of what was bequeathed to him absolutely. On that day an instrument of that date, executed by Hope Haines and Hannah Lippincott, was delivered to him, a copy of which is annexed to these answers.
    Rebecca says an instrument was given to her, a copy of which is annexed to the answers.
    Aquila answers, further, that there are papers in the box, relating to the trust funds, consisting of memoranda and accounts, some in his handwriting, but most in Hope Haines’ writing. There are also in the box some accounts, &c., which appear to relate to the separate estate of Hope Haines; these he offered to Mr. Stokes, but he declined to receive them. As to those which relate to the trust fund, he caused an offer to be made to Stokes to produce them in the presence of the complainants and defendants and their respective counsel, but the proposition was declined. A further offer was made to furnish copies, which was also declined.
    Rebecca and Aquila further say that Hannah Lippincott and Hope Haines did pay to them, respectively, on the 25th June, of each of the years 1840, 1841, 1842, 1843, to Rebecca $735.33, and to Aquila $421.11. That no payments have been made to either of them on that account since June 25th, 1843, either by Hannah or Hope. That the three first years’ payments were made to Rebecca in money; for the last two years Hannah and Hope gave their bond to her, conditioned for the payment of $1477, with interest, dated June 25th, 1843, which bond she now holds, but has received on account, January 8th, 1844, $942.50, a credit for which is endorsed on the bond. That to Aquila three payments were made, partly in money and partly in securities, but he cannot state how much in each, having kept no precise accounts.
    Annexed to these answers, and referred to in them, is a writing under the hands and seals of Hope Haines and Hannah Lippincott, dated June 25th, 1839, marked Exhibit 2, reciting that Hope Cowperthwaite, deceased, by her will dated October 22d, 18-18, and by a codicil thereto dated December 10th, 1824, gave and bequeathed to her grandson, Aquila S. Ridgeway, certain sums of money, a part to trustees for his use, and a part to him absolutely, and that Hannah Lippincott and Hope Haines, the trustees in the said will and codicil named for the said Aquila, and who are the executrices of the said will and codicil, and the said Aquila having adjusted and settled all accounts in relation to the estate of Hope Cowperthwaite and in relation to the moneys so bequeathed to the said Aquila, between them; and that Hope and Hannah, as the two executrices of the said will and codicil, had paid to Aquila the balance of that part of the said moneys bequeathed to him absolutely; and then proceeding thus:
    “Now this writing made by us,Hope Haines and Hannah Lippincott, witnesseth, that we have now in our hands, as trustees of the said Aquila S. Ridgeway, according to the provisions of the said will and codicil, seven thousand and eighteen dollars and twenty-seven cents, which we are to hold and retain incur hands in accordance with the provisions of said will and codicil, and to be paid out by us to the said Aquila S. Ridge-way, in conformity to the provisions of the said will and codicil in relation thereto. This writing being simply for the purpose of showing the amount which we have in our hands for the said Aquila S. Ridgeway under the provisions of the said will and codicil, and not to alter or vary his rights in the least in relation thereto. Sigued, sealed and delivered in the presence of Craig Moffit, C. M. Harker.”

      And another writing executed under the hands and seals of Hope Haines and Hannah Lippincott, dated June 26th, 1843, reciting that Hope Cowperthwaite, by her said will and codicil, gave and bequeathed unto Hannah Lippincott, Hope Haines, ¡and Aquila S. Ridgeway, and to the survivor of them, and the executors, administrators, and assigns of such survivor, a certain portion of her estate, to be held by them in trust for her daughter, Rebecca Zilley, and her children, as in said will and codicil is particularly set forth; and that Hannah Lippincott, Hope Haines, and Aquila S. Ridgeway, who are the executors of the said will, have adjusted and settled all accounts in relation to the said estate, and then proceeding thus :

      Now this writing given by us, Hannah Lippincott and Hope Haines, two of the said trustees, Aquila 8. Ridgeway, the other trustee, having resigned his trusteeship, which resignation was accepted by the said Rebecca Zilley, witnesseth, that there was remaining in the hands-of Hannah Lippincott and Hope Haines, trustees as aforesaid, on the 25th June, 1839, $12,255, and no more, in trust for the said Rebecca Zilley and her children, the said Rebecca having before that day received of and from her said trustees $2483.53, in part payment of the money so left her in trust; and we, the said Hannah Lippincott and Hope Haines, do hereby declare this writing is merely given for the purpose of showing the amount of money in our hands on the said 25th June, 1839, in trust for the said Rebecca Zilley, under the provisions of the said will and codicil, and not to alter, change, or vary the rights of the said legatee or trustees in the least, in relation to anything contained in said will and codicil.”
    There is also annexed to these answers a writing marked Exhibit O, being an instrument under the hands and seals of Hope Haines and Hannah Lippincott, dated June 25tli, 1839, reciting that Aquila S. Ridgeway, by the will and codicil thereto of Hope Cowperthwaite, deceased, was appointed, jointly with Wallace Lippincott, trustee of the one-fourth part, &c., for the use and benefit of Hope Haines, subject to the powers and provisos contained íd said will; and that he was appointed trustee, in the same manner, of the Hannah Lippincott fourth; and that Wallace Lippincott having died, Aquila is now sole surviving trustee of said Hope and of said Hannah; and then declaring that they, Hope and Hannah, have in their hands, respectively, the whole amount of the principal and interest of each of their shares, either in cash or securities; and that “ though the said Aquila has been and now is our trustee as aforesaid, and the said securities are taken in his name as said trustee, yet he hath not at any time received any part of said estate or money so coming to us as aforesaid, but the whole hath remained in our hands from the death of the said Hope Cowperthwaite, and still so remains. And we do acquit and discharge the said Aquila S. Ridgeway, his heirs, &c., from all and any liability in consequence of our having retained in our hands the said portions so bequeathed to us, and the evidences and securities thereof. And as it is our intention to retain in our hands the said portions and the evidences and securities therefor, and have the same under our own control and management, although the said Aquila S. Ridgeway is to continue our trustee, we do, therefore, for this-acquit and exonerate him, his heirs, &c., from all liability which he may incur by permitting the said portions to remain in our hands, with the evidences and securities, under our management and control.”
    Several other exhibits were produced, and much testimony was taken on both sides.
    The case was heard on the pleadings and proofs.

      J. P. Bradley and F. T. Frelinghuysen, for the complainants.
    They cited 1 Sugden on Powers 373, 384, 387, 398, 419; 2 Meriv. 533.

      William L. Dayton and Peter D. Vroom, for the defendants.
    They cited 1 Sugden on Powers 388 ; 1 Story’s Eq., §§ 97, 170, 173, 175; 2 Sugden 95, 127 to 141; Jeremy’s Eq. 371, 2, 3, 4; 8 Ves., Jr, 609, 616 ; Ambler 681.
   The Chancellor,

before proceeding to deliver his opinion,, remarked that an abstract of about forty folios, which he had made, contained all the testimony that was material; that, to sift that out, he had been obliged to go through 262 folios. That it should be recollected that unless a judge was satisfied that he had a distinct view of everything material in the testimony, he could not feel willing to decide a cause, and that the burden of wading through a volume of useless matter should not be imposed.

The Chancellor. The question in this ease is whether the securities which have been inventoried, appraised and taken by the executors of Hope Haines as belonging to her estate, (other than those which she held in her individual name,) belong to the trusts created by the will of Hope Cowperthwaite, or belong to the estate of Hope Haines, and are to be disposed of under her will. If the disposition of these securities was the same under both wills, it would probably be of no great importance which set of trustees should have the charge of them. But the disposition of the different wills is different, and the question involved affects substantial interests of opposing claimants to these securities. The cestuis que trust under the different wills are different, not altogether so, indeed, but sufficiently sc to make it a question between substantial adverse claims. These securities belong to the trusts under Hope Cowperthwaite’s will, unless something has been done conformably, in the judgment of a court of equity, to the provisions of that will, withdrawing them from those trusts and making them the property of Hope Haines, discharged from those trusts. The oar is in the hands of the executors of the will of Hope Haines, and they have voluntarily taken it.

(The Chancellor here stated the character of the securities, and classified them.)

Hope Cowperthwaite, the first testatrix, left five children, being children by her first husband, Lippineott, namely, one son, Wallace Lippineott, and four daughters, Martha Woolston, Eebeccsa Zilley, Hope Haines and Hannah Lippineott. She gives her son Wallace only a small sum, he having been provided for in her lifetime.

After certain bequests, she divides her personal estate into' four parts, and bequeaths one-fourth to trustees for each daughter, with certain provisions and limitations in reference thereto. Wallace Lippincott and Hope Haines are by the will appointed the trustees of the Martha Woolston fourth. By the will and ■codicil, Hope Haines, Hannah Lippincott and Aquila S. Ridge-way are the trustees of the Rebecca Zilley fourth. Wallace Lippincott and Aquila S. Ridgeway were appointed the trustees of the Hope Haines fourth, and also of the Hannah Lippincott fourth; and on the death of Wallace Lippincott, Aquila S. Ridgeway became the sole surviving trustee of Hope Haines fourth and of the Hannah Lippincott fourth; and by the death •of Hope Haines, Hannah Lippincott and Aquila S. Ridgeway became the surviving trustees of the Rebecca Zilley fourth. Hannah Lippincott, Hope Haines and Aquila S. Ridgeway were appointed executors of the will and codicils, and since the death of Hope Haines, Hannah Lippincott and Aquila S. Ridgeway are the surviving executors.

The trusts of the different fourths are of the same general character.

The trust in reference to the Hope Haines fourth is, in substance, as follows : This fourth is bequeathed to Wallace Lippincott, since deceased, and Aquila S. Ridgeway and to the survivor of them, in trust, to place the same at interest, and to pay the interest arising thereon, yearly, to Hope Haines so long as she shall live; and also in trust to pay to Hope Haines so much of the principal as she shall, from time to time, by writing under her hand, attested by two credible-witnesses, require of the said trustees; and if she shall leave children living at her death, or descendants of children, then that what shall remain undisposed of, of the said fourth, with its accumulated interest, shall belong to and vest in her children, to be paid to them at twenty-one, respectively, the issue of any deceased child to stand in the place of the deceased parent; but if she die, not leaving any ■child or descendant of any child living at her death, then that the trustees pay what may remain of this fourth undisposed of .at the time of the death, with its accumulated interest, unto such of her brothers or sisters or their children, in such proportions as she, the said Hope Haines, shall by will or writing in •nature thereof, sign by her hand, and attested by two credible witnesses, direct and appoint; she, the said Hope, in such case, to have power to dispose of the same among her brothers and sisters and their children, in such proportions as she may think fit, but to no other person or persons whomsoever; and if she die, not leaving any child living at her death, nor descendant of such child, and without having made such appointment, then that the said trustees pay what shall remain undisposed of, as aforesaid, of this fourth, unto the brothers and sisters of the said Hope, in equal proportions, (the shares of any sisters that may then be married to be paid to their trustees, for their separate use, free from their husbands’ control.) The children of any deceased brother or sister to stand in the place of his, her, or their parent.

On the 25th June, 1839, there was an ascertainment of the amount of the estate. It is called a settlement. The exhibits, I think, show that it was intended as a settlement of the executors’ accounts; and it is to be considered, for the purposes of this case, in the same light as a settlement in the Orphans’ Court would be.

Hope Haines died leaving no child or descendant of any child.

The bill is filed by Hannah Lippincott, Aquila S. Ridgeway and Rebecca Zilley; Hannah and Aquila claiming to be surviving trustees of the Rebecca Zilley fourth; Aquila claiming to be the sole surviving trustee of the Hope Haines and Hannah Lippincott fourths; and Rebecca Zilley being a cestui que, trust of the fourth bequeathed in trust for her, &c. The object of the bill is to recover from the executors of Hope Haines the securities inventoried and taken by them as belonging to the estate of Hope Plaines, other than those which stand in her own name.

As to the Hope Haines fourth, the first question is, did Hope Haines, in her lifetime, require the said trustees to pay to her any part of the principal of this fourth, in the manner prescribed by the will for that purpose, or in any manner which should be considered in equity as equivalent thereto ?

It is contended, on the part of the defendants, that the settlement of the estate by the executors, the assignments by Aquila, one of the executors, to Hannah and Hope, the other two executors, and the Exhibit O and the other exhibits in the cause, should be considered as amounting, in effect, to a requii'ement by Hope Haines in her lifetime, on her trustee, Aquila S. Ridgway, to pay to her the principal of the Hope Haines fourth.

As to the settlement, it was necessary or proper, in order to ascertain the amount of the estate which would be subject to trusts. .It seems to have been in lieu of a settlement by the executors in the Orphans’ Court. As to the assignments by Aquila, they were assignments by one of three executors to the other two, •of all his interest in the securities so assigned. As to Exhibit O, it does not seem to me to furnish sufficient evidence that Hope intended by it to extinguish the trust as to the Hope Haines fourth; and, as has been observed before, the burthen is on the defendants to show enough to enable the court.to affirm that such was her intention. The fact that she did not adopt the mode ■prescribed in the will for doing it, is certainly to be considered as opposed, more or less, to the idea that she intended to do so. If she had so intended, she had only to declare that intention to the trustee, by writing under hand attested by two witnesses. When she could do it by so plain and easy a mode — a mode that ■would have been subject to no misapprehension — would so careful a woman, scrupulously particular, according to the accounts we •have of her, be likely to be satisfied with any other mode, or, at any rate, with one so equivocal in its character as that from which 'the counsel for the defendants ask us to infer such intention on her part ?

Again, Exhibit O, after reciting that Aquila, since the death of Wallace Lippincott, is the sole surviving trustee of the Hope Haines fourth, and of the Hannah Lippincott fourth, expressly declares that “ he is to continue our trustee.” All the' securities belonging to the trust had remained in the hands of Hope and Hannah, two of the executors of the will of Hope Cowperthwaite, from the time of her death, in 1829, up to the said settlement and the date of this exhibit, June, 1839 ; Aquila, the other executor, consenting to it.

After a careful examination of the testimony and exhibits in ,the cause, I do not feel willing to affirm that what was done on the 25th June, 1839, was intended by Hope Haines as an execution of the power given her to withdraw the principal money from the trust.

If it was intended by her to do something, on that day, in or towards, or as equivalent to the execution of the power, we must suppose that such intention would have been communicated to her counsel who drew the writings; and it appears to me to be beyond all credence that counsel, having the idea of such intention on her part in his mind, could have drawn so many writings hi reference to the different fourths, and avoided any expression of such intention. But there is not only an entire absence of any such expression, but, as if for the purpose of excluding a conclusion that she intended to do so, a clause is inserted in Exhibit, O, expressly declaring that Aquila is to remain a trustee. When the meaning of a party’s act is so equivocal and difficult to be understood, I see no reason for reject!tig his express declaration of what he does mean. But if this declaration is to be considered as not conclusive, it is certainly entitled to weight in examining the case with a view to ascertain the intention of Hope Haines, and I think it may be safely said, that nothing stronger than conjecture can be reached in opposition to this declaration. How are we to apply principles where we have only conjectures in place of established facts?

The court may aid a defective execution of a power, but will not supply the execution where none has been attempted or intended. It will not do that for a party which he does not think fit to do for himself. 1 Story’s Eq. Jur., § 170.

The only safe principle, as it seems to me, on which this cause can be decided, is this: Where the circumstances are so equivocal as to leave the mind in doubt whether an execution of the power was at all intended, the court should not interpose. An intention to execute the power should clearly appear. 1 Story, § 172.

I will not guess on either side in the case — either that Hope Haines intended to withdraw the principal from the trust, or that she intended that the yearly interest received by her was to be added to the principal and subjected to the trust. The interest was to be paid to her by her trustee, yearly, without any demand ; and when she received it, she received it as hers absolutely, not subject to any trust. It is not easy to perceive how she could, after receiving the interest, add it to the trust fund. At all events, something affirmative would be necessary — something equivalent to declining to receive the interest from her trustee and leaving it to accumulate in his hands.

As to the question, then, whether Hope Haines did anything in her lifetime equivalent to requiring her trustee, conformably to the will of Hope Co wperth waite, deceased, to pay her the principal of this fourth, to be her own, free from the trust, I am of opinion that there is no sufficient evidence that she did so.

As to the interest of this fourth, I am of opinion that, inasmuch as it was received by her, it is to be considered in the same light as if it had been paid to her by her trustee; and that there is no sufficient ground for holding that it became a part of tin-trust fund after being received by her.

It is difficult to perceive how the words “with its accumulated interest,” used in the will, can apply to the interest which should be actually paid, yearly, to the cestui que trust, for her use, free from any trust.

As to the will of Hope Haines, it cannot affect the right to the custody of the papers belonging to the trust fund. The will of Hope Cowperthwaite provides that if Hope Haines die without leaving any child, or descendant of any child, then that the trustees of the Hope Haines fourth pay what may remain undisposed of of this fourth unto such of her brothers or sisters, or their children, as she shall by will direct. Even if the will of Hope Haines, therefore, can be considered as an appointment in favor of the persons named in the residuary clause thereof, the trustee under Hope Co wperth waite’s will would be the person to receive the money or these .trust securities and pay it to the appointees.

Whether the persons named in the residuary clause of H Haines’ will are entitled to this fourth is a question which it would not be proper now to decide.

As to the commissions claimed by Hope Haines, she was not. entitled to commissions for investing and managing the fourth over which she had the power of appointment j and, it seems to me, I cannot act in this suit in reference to commissions to the executors of Hope Cowperthwaite’s will.

Hannah Lippineott is surviving obligee of the securities taken to her and Hope Haines; and it is claimed that she is entitled to the possession of them. I think this is so; and for this reason : the surviving co-obligee is entitled to half the moneys recovered on the securities ; to oblige him to divide the securities, in amount, would subject him to the risk that some retained by him might prove worthless.

An order of reference will be made in accordance with the foregoing view.

Order accordingly.

Same Case, 2 Stockt. 164.

Cited in Lippincott v. Ridgeway, 3 Stockt. 531.


source: Caselaw Access Project

author: The Chancellor

license: Public Domain

text:
    WHEELER v. REDMOND.
    The report of a master on exceptions to answer is brought before the Chancellor, not by exceptions to the master’s report, but by appeal.
    In this case, exceptions had been filed to the answer, and a rule entered with the clerk referring the exceptions to a master, who decided and reported upon the exceptions.
    Exceptions were filed to the master’s report.
   The Chancellor

said that the proper mode of bringing the master’s report before him in such case, was by appeal, and not by exceptions to the report. Rev. Stat. 910, § 29.


author: The Chancellor.

text:
    BEST v. J. M. SCHERMIER.
    1. A receiver to collect rents from tenants of the mortgagor will not be appointed on filing a foreclosure bill.
    2. A mortgagor may authorize the second mortgagee to collect rents from tenants of the mortgagor and apply them as payments on his mortgage ¡ and he will not be restrained from doing so on the filing of a foreclosure bill by the first mortgagee.
    On the 18th May, 1846, Sehermier gave a mortgage to Ballentine for $700. He had given several prior mortgages on the same premises. Several judgments had also been recovered against him; some prior and some subsequent to the mortgage to Ballentine. One of the prior mortgagees, the complainant in this case, filed a bill for foreclosure and sale of the premises, making all the-mortgagees and judgment creditors parties defendants. This bill stated, that on the 18th May, 1846, Schermier assigned, transferred and set over to the said Ballentine the leases, rents, issues and profits of the mortgaged premises, and empowered him to collect and’ receive the rents due and to grow due. That Ballentine had already received some rents, and that a large amount of rents would shortly become due, and that Ballentine intended to collect the same and apply them to the payment of any money that might be due or become due on his said mortgage. The bill claims that the said rents should be paid on the prior mortgages, and prays foreclosure and sale, to pay the mortgages according to their priority; and that Ballentine be restrained from collecting the rents; and that a receiver be appointed to collect the same and hold them subject to the order of the court.
    An injunction was granted, and a receiver appointed.
    Ballentine answered the bill, and stated in his answer, that Sehermier, at or about the time of giving said mortgage to Balleutine, and further to secure the bond of Sehermier to him, secured by the said mortgage, executed an assignment to him, Ballentine, of all the rents, issues and profits of the mortgaged premises, and authorized him to collect the same, and apply them to or towards the payment of his said moi'fgagQ.

      A motion was thereupon made to discharge the order appointing a receiver and restraining Ballentine from collecting the rents.
    On the hearing of the motion, a deposition of A. C. M. Pennington was read, stating that Schermier, at the same time he gave Ballentine his mortgage, assigned to him the rents coming line, and appointed him attorney to receive the same; and that both the mortgage and the assignment of rents were the securities on which Ballentine advanced money.

      A. C. M. Pennington, in support of the motion»

      E. R. V. Wright and J. W. Scott, contra.
   The Chancellor.

I have uniformly denied applications to appoint a receiver of rents made on filing foreclosure bills. I have considered that the mortgagor is entitled to the rents while he is, in possession by his tenants. I am satisfied that the contrary practice was inconsistent with what is now well understood to be the nature of a mortgage, and led to great oppression. The view I had taken was sustained by the Court of Errors and Appeals in the case of Sanderson v. Price.

Schermier would not have been restrained from collecting the . rents; and, he having assigned them to Ballentine and authorized him to collect them and apply them as payments on his mortgage, I see no reason why Ballentine should not be permitted to collect them.

The order appointing a receiver of the rents and restraining Ballentine from collecting them will be vacated.

Order accordingly.

Cited in Cortleyou v. Hatheway, 3 Stockt. 43.


author: The Ordinary.

text:
    JOSIAH H. REEVES, APPELLANT, AND ENOS P. REEVES AND JACOB P. REEVES, RESPONDENTS.
    A father devised to his three sons certain lands, as tenants in common during their natural lives, and after the death of either of them, his share to go to his lawful issue; and if any of his said sons should die without leaving lawful issue, bis share to go to the survivors of them; or if any of them have deceased, their lawful issue to have the share that would have gone to their father if living. Held, that no partition could be made among the sons except of their present interest or estate in the lands.
    This is an appeal from a decree of the Orphan’s Court of the county of Salem, directing the division of certain lands devised by the will of Stephen Reeves, deceased, among the devisees thereof.
    The will of Stephen „ Reeves, deceased, late of the county of Salem, devises to his three sons, Enos P. Reeves, Jacob P. Reeves and Josiah H. Reeves, certain lands, (described in the will,) “ all which said lots and tracts of land, buildings, mills, waters, improvements, hereditaments, and appurtenances herein given and devised io my said sons, Enos P. Reeves, Jacob P. Reeves, and Joseph H. Reeves, 1 do devise and give to them, as tenants in common during their natural lives, which, after the death of either of them, the said share of the said deceased son to go to their lawful issue; and if any of my said sons shall die without leaving lawful issue, then their share to go to the survivors of the said three ; or, if any of them have deceased, their lawful issue to have the share that would have gone to their father, if living.”
    On the petition of Enos P. Reeves and Jacob P. Reeves, to the Orphans’ Court of Salem, stating that the said testator died leaving a will devising to his said three sons the following described properly, tracts, and pieces of land (describing them), “all of which, &c., I do devise and give to them as tenants in common, &c.,” without setting out the will more particularly, and staling that said Josiah H. Reeves is a minor — under the age of twenty-one years — and praying that the said court order and direct a division of such real estate, in fee, to be made agreeably to the true intent and meaning of the said will, and appoint commissioners to ascertain the metes and bounds of each devisee’s aliare, according to law. The said Orphans’ Court, in August, 1846, made an order as follows (after reciting the said application): “ And it now appearing, by the will of the said Stephen Haines, that he did devise the above-named property to Enos P. Reeves, Jacob P. Reeves, and Josiah H. Reeves, and that Josiah H. Reeves, one of the said devisees, is under the age of twenty-one years, it is ordered and decreed that a division of said lands be made as follows, to wit, to Enos P. Reeves one-third part thereof in fee j Jacob P. Reeves, one-third part thereof in fee, and Josiah H. Reeves, one-third part thereof.” The order then appoints commissioners to make division, and concludes thus: “ which division shall be conclusive to all parties concerned, as well the present as the remainder-men.

      A. L. Eakin, for the appellant,
    cited 1 Green’s Rep. 284; Halst. 94; Coxe N. J. Rep. 3; 3 John. 20; 4 Halst. 93.
   The Ordinary.

If there could be a division of the fee among these three sons, each might receive, in fee, the share allotted to- him. But the will provides that if either son die without leaving lawful issue, his share shall go to the survivors, &c. No division among the three sons can operate to give each-a present fee. The terms of an order for division in this case should be confined to the present interest or estate of the sons.

Decree reversed.