Bayley's Appeal

The opinion of the Court was delivered by Sharswood, J. — We have not been furnished with a copy of the will of Samuel Bayley, nor of the decree or order of the [360] Court of Common Pleas, by which the fund was originally paid to Dr. Phineas Jenks, as trustee. It was the principal of one-third of the estate of the testator, the interest of which was to be paid to his widow for life, and the principal, at her death, to his three sons. As the successor of Dr. Jenks was appointed by the Orphans’ Court, and his account there filed, we may assume that he was a testamentary trustee. It must be admitted then that the fund in court for distribution was the estate of the testator. The original trustee, when he advanced it to the three sons, taking from them bonds and mortgages simply to secure the payment of the interest to the widow for life, in no way changed the relation which she bore to it. The sons failed in the payment of the interest, and a considerable part of the principal was lost. The remnant saved was received and held by the trustee, and was the fund to be distributed in the court below. The claimants on the funds were the executor of the widow, the assignee of one of the sons, and the administrator of the other. These two last named contend that the widow was the creditor merely of the sons for the arrearages of interest, and had no lien on the fund — that if this had been the estate of the widow to be distributed, these arrearages would be a good set-off against their claim; but that the Orphans’ Court, in distributing the estate of the testator have no jurisdiction to defalcate the claim of one legatee on another, against his share; and that the fund must be considered as a part of the principal to the whole of which on the death of the widow they are entitled, leaving her representative to pursue his claim by action against them or their respective estates’. It does not distinctly appear in the auditor’s report or any where in the record that the bonds were executed by the sons directly to the widow. If they were taken, as they ought to have been, in the name of the trustee, though conditioned to pay the interest to the widow, there would not be a loop to hang a doubt upon. The sons would be in law debtors to the trustee for the interest, as well as the principal, and he would have an unquestionable right to defalcate the amount from any claim they might have on the estate. But let us assume for argument sake, that the bonds were executed directly to the widow and in her name; ought that to vary the result ? The Orphans’ Court in its large and important jurisdiction over executors, administrators, guardians, and other trustees, has always been considered as a court of equity. They adopt the núes and principles of equity as their guide in the settlement of their accounts. The bonds in question ought to have been made in the name of the trustee, and if they were otherwise drawn, either by mistake or fraud, a chancellor would have decreed them to be reformed. There is no fact found by the auditor from which it can be inferred that the widow agreed to accept these bonds, and release her claim on the estate of the testator as legatee or annui [361] tant. In their nature they were merely collateral, and the law would, prima facie, so regard them. If then that shall be considered as actually to have been done which a chancellor would have decreed, these bonds were securities in the name of the trustee, and the sons were in equity his debtors for the arrearages of interest, which they had personally bound themselves to pay. How then can they claim to receive any part of the principal while they thus remain debtors of the estate ? As to the point that only twenty years’ arrearages could be awarded to the executor because of the presumption of payment of all beyond that, that was an objection which ought to have been taken before the auditor or by exception to his amended report. If it had been, no doubt it would have been made to appear that there were facts to rebut the presumption. Both of the sons, whose representatives are now claiming, were sold out by the sheriff, and their estates, perhaps, after paying other encumbrances, did not produce enough to meet the principal of their bonds. Decree affirmed and appeal dismissed at the costs of the appellant.