Gitt's Estate

Opinion by Mb.. Justice Mitchell, The official function of an executor is not to hold money but to distribute it. If he is to hold it at all, he must do so as trustee and by virtue of some direction or intent of the testator. In the present case there is no such intent manifested. On the contrary the implication is strongly to the contrary. The testator divided the share of his deceased son into three parts, one to be paid to his grandson Jesse when he arrives at twenty-one, one to his granddaughter Elizabeth to be paid when she arrives at twenty-one, and the “ remaining one-third part of said share shall be held by my executors ” charged on lands devised to them, and “ the interest to be paid by them to Emma K. Gitt, widow of my son,” etc. And as to this portion he further directed that the executors might at any time pay it to “ some reliable trust company,” and be discharged from further liability. Here is the division of a specified share of his estate into three parts, all to-be paid in the future, with the creation of an express trust as to one part and no similar direction as to the other two. The inference is irresistible that as to those two no trust was contemplated or intended. [265] The party to receive a legacy is the legatee, and when he is incapacitated by infancy his legal representative is a guardian; That is the case presented here. When the testator made his will, his two grandchildren were infants, and he directed that their portions should be paid to each on reaching the age of twenty-one. That might or might not be before testator's own death. In fact it was afterwards, and the legatees therefore were incapable of taking in person at that time. In the absence of any direction or apparent intent of the testator to the contrary, their shares were to be held in the interim by their legal representative, a guardian. Decree affirmed.