interest in the case of fraud or willful neglect. | 144, 145; 2 Story's Eq. Jurisp. sec. 1521. The Defendant cannot be protected by the statute of limitations from a decree for this amount. The bill charges, and the evidence proves, that this transaction was fraudulently concealed from complainants, and there is evidence to sustain it. Fraud and trust are not within the statute of limitations, as it does not begin to run until the fraud is discovered. Kane v. Bloodgood, 7 Johns. Ch. R. 122. There is an express allegation of the bill, as to the time when the fraud was discovered. Nor can the question of jurisdiction ever arise, as to this part of the case. Savage never acted under the authority of any court of Kentucky, which may be supposed to have had exclusive jurisdiction of this matter. 259*] *It is submitted, then, that on this part of the case we are entitled at least to $2,118.00, with interest thereon at six per cent. from 21st July, 1818, compounding the same. As to the estate in South Carolina. [Mr. Berrien here went into a minute examination of the accounts, which is omitted, as the opinion of the court did not consider the question open.] To protect himself from this claim, defendant relies on several grounds: 1. That he was not liable to suit in Alabama. 2. That he made a final settlement. 3. The statute of limitations, and lapse of time. The argument against the jurisdiction of the Circuit Court of Alabama has been already considered. The final settlement. A bare inspection of the accounts will show that it was not final. It was not so recognized by the ordinary, but styled an "account current," and so recorded by the ordinary. The payment of the balance due to Hutchinson, if he had power to receive it, would not make a final settlement. Hutchinson did not so receive it. His receipt is merely for the actings and doings of Savage up to the date, as per his "account current," not "final settlement." To make it a final settlement he should have charged himself with the amount of sales, and interest on each note until it was paid, for the notes given at the sale bore interest. 2. The amount of the notes and open accounts found at the time of Taylor's death, and interest on the former, which came to Savage's possession. 3. If any of these were desperate, this should have been stated. 4. He should have charged himself with interest on the annual balances remaining in his hands. Instead of this, it was a mere annual account current, crediting such receipts as Savage chose to acknowledge, and charging such payments as he alleged to have made. All that the ordinary did was to examine the vouchers for the payments. He could make no final settlement, because there was no exhibit of the assets. court to make lapse of time a bar to the claims of heirs and legatees for an account and settlement of the estate. Gist v. Cattel, 2 Desaus. 53. Infancy and coverture will prevent the statute from running. The children of Samuel Taylor were infants; Mary Taylor (Rainey) was a feme covert. Respondents urge, that complainants are barred by the statute of limitations of Alabama, because they did not sue there within six years, and deny the right to *sue there at all. Specific allegations [*260 in the bill of fraud, showing when they were discovered, are equivalent to a general allegation that they were only discovered within six years. As to interest. An executor is chargeable with interest on the annual balances kept in his hands, unless they are necessarily kept for the purposes of the estate. David v. Eden, 3 Desaus. 241; Benson v. Bruce, 4 Ibid. 463; Walker v. Bynum, 4 Ibid. 555; Jenkins v. Ficklin, 4 Ibid. 369; 2 Hill, 561, in note. Mr. Sergeant, for Savage's administrator, replied to Mr. Berrien. He commented upon the long time that had elapsed since the final settlement of the estate, upon the cases before referred to in 14 and 15 Peters, and contended that before the complainants below could recover anything on account of the Kentucky lands, they must establish three propositions1st. That Taylor owned the land; 2d. That he devised it; and, 3d. That the executors had power to sell, and did sell. Each one of these propositions he denied, and argued upon at great length. The deed to Taylor, he contended, contained a use which was immediately executed and vested the title in the heir of Forbes, who was some person in Germantown. The land must therefore have escheated. Taylor did not devise the land. He might have done so specifically, but did not. 3. The executor had no power to sell. The case of Northup, in 15 Peters, is an exposition of the law upon this subject. The court in Alabama had no jurisdiction over a foreign executor. An executor can neither sue nor be sued in another State. 2. Mr. Justice Woodbury delivered the opinion of the court: The original proceeding in this case was a bill in equity. The complainants are heirs and devisees of William F. Taylor, being aliens and resident in Scotland. He was a naturalized citizen of South Carolina. The respondent was George M. Savage, of Alabama, prosecuted there as executor of Samuel Savage, of that State. The claim set up in the bill was, that William F. Taylor, before his death in A. D. 1811, made a will, devising the residue of his estate, after the payment of a few legacies, to the complainants, directing all his property to be first sold and converted into money, and making the said Samuel Savage one of his executors, associated with three others. It was further alleged, that the business was divided between them, and each had settled for what he took in charge, except Savage, who had not accounted fully for the property received by him in South Carolina, or the proceeds of cerThe original answer denied that the executors took out letters testamentary, except in South Carolina, or assumed any trusts as to the 261*) *property of the testator beyond the limits of that State, or ever proved the will in Kentucky. It also denied that any part of William F. Taylor's property in South Carolina had not been duly accounted for. As to lands in Kentucky, it averred that the testator owned none, and, though he set up some title to about ne, and, thoug 4,400 acres, that it was invalid, and was compromised and released by an agent of the complainants in A. D. 1836. That, as the latter were aliens, the title in the mean time had As to the statute of limitations. Fraud and trust are not within the statute; it does not be gin to run until the fraud is discovered. Kane v. Bloodgood, 7 Johns. Ch. R. 122; 3 P. Wms.tain lands of William F. Taylor in Kentucky sold by Savage, and that by his negligence large | succeed to the administration or executorship; quantities of other lands situated there had such person or persons may at any time be been lost. made parties, on motion, and the cause shall proceed in the same manner, and judgment therein be in all respects as effectual, as if the same were prosecuted by or against the parties originally named." Passed September 4th, 1821; see Clay's Digest, 227. The grounds or causes for relief presented in the bill are next to be examined, and are two. One is the claim on account of an alleged failure by Samuel Savage to settle, as executor in South Carolina, for a debt due from himself to William F. Taylor, and some other debts collected there, with proper interest thereon. This is the first ground on the merits; and it may be better considered separate from the second one, escheated to the State; the executors having, which is the amount demanded for alleged negas alleged, only a bare power to sell, and some lects and receipts of money by Savage in relaof them dying before A. D. 1818, this power tion to the lands situated in Kentucky. The could not be exercised by the others. And though it admitted that Samuel Savage in that year executed deeds of about one fourth of the land claimed by the testator, receiving a small consideration therefor, yet it contended that no title passed thereby, and that no court out of the State of South Carolina had any jurisdiction over the matter. The statute of limitations was also pleaded to all the claims. Some other particulars, and some amendments of the answer, which may be found material in the progress of the inquiry, will be noticed as occasion shall require. A preliminary question has been raised in this court, in consequence of what had taken place in the progress of the cause, which it may be proper to dispose of first. After judgment had been rendered in the Circuit Court in favor of the complainants for a portion of their claims, and before an appeal was taken, George M. Savage, the executor of Samuel, was removed, and Vincent M. Benham appointed administrator de bonis non of Samuel Savage, with the will annexed. The cause was then entered in this court, and attempted to be proceeded in, but was directed to be remitted to the Circuit Court in order first to make Benham a party. 1 Howard, 282, and 2 Howard, 395. This having been done, the case came here again, and now it is objected, at the threshold, to any examination of the original questions in the case, that an administrator de bonis non is not liable for assets in the hands of the deceased executor. See Grant v. Chambers, 4 Mass. R. 611; Alsop v. Marrow, 8 Conn. R. 584; 1 Serg. & R. 549; 1 Gill & Johns. 207; and other cases cited. But if the correctness of these decisions be not doubtful at law, they may require several exceptions and limitations in equity. See Blower v. Massetts, 3 Atkins, 773; 2 Ves. Sen. 465; Mitford's Pleadings, 64, 78; 2 Vern. 237; Fletcher's Administrator v. Wise, 7 Dana, 347; 1 Howard, S. C. 284, in this case. And it is clear, that under the statute of Alabama, which must, by the thirty-fourth section of the Judiciary Act, govern this case, the objection cannot be sustained. This statute provides, that "where any suit may have been commenced, on behalf of, or against the personal representative or representatives of any testator or intestate, the same may be prosecuted by or against any 262*] person or persons who *may afterward property left by the testator in South Carolina was held in his own right, and the proceeds of 10 were collected by the executor by virtue of his letters testamentary. The first objection interposed to the claim respecting that is, that in point of fact nothing is shown to have been due or collected there which the executor did not account for, and finally settle and pay over the balance, April 22d, 1818. Another is, that if anything collected there and then omitted, or not since paid over, should now be accounted for, it ought to be in the State of South Carolina, where the letters issued, and not in Alabama. Or, at all events, that some action must first be hau in South Carolina, and the account re-opened, and the new matters examined and charged there upon Samuel Savage, one of the original executors, before he or George M. Savage, his executor, can be prosecuted elsewhere for the amount. The following cases may be referred to in support of such a position: Vaughan et al. v. Northup et al. 15 Peters, 1; 14 Peters, 33; Story's Confl. of Laws, 513; Aspden et al. v. Nixon, 4 Howard, 467; Carmichael v. Ray, 1 Richardson, 116. While others may be seen against it in 14 Peters, 116; 15 Peters, 119; 2 Wash. С. С. 338. But it is to be recollected that the statute of limitations is pleaded against this no less than the other claim; and hence, if, on examination, that statute, or the great length of time which has elapsed since 1818, should be found, under all the circumstances of the case, to render a recovery of any part of this claim illegal or inequitable, a decisive opinion on the other points just mentioned will become unnecessary. We therefore proceed to inquire into this first. The settlement in 1818 seems to have been a final one; the balance was paid over to an agent of the plaintiff then present; and the executor, Samuel Savage, soon after left the State, and, for aught which appears, never returned again. The statute, if running at all as to the matters in South Carolina, should, therefore, as a general *principle, begin in 1818; and any [*263 special excuse for not suing the executor within six years for anything not then accounted for, such as coverture, minority, or residence abroad, ought in equity as well as law to have been set up in the bill originally (7 Johns. Ch. R. 74); or by an amendment of it, allowed after the answer, instead of a special replication, as provided by the 45th rule of this court. See Marsteller et al. v. M'Clean, 7 Cranch, 156, and Miller v. McIntyre, 6 Peters, 64. But, notwithstanding this omission, as some doubts exist whether the statute of limitations can technically apply to a claim situated like this, we have looked further to the circumstances of laches and long neglect by the complainants, independent of the statute. And they seem to us to operate in equity very conclusively against going back of an executor's account, thus formany and finally settled, after the lapse of twenty years and the death of the parties concerned. Gardner v. Wagner, 1 Baldwin, 394, 454. It must be a very strong case of fraud, proved in such a settlement, or of clear accident or mistake, which could ever make it just, under such circumstances, to reopen and revise it. 9 Leigh, 393. Considering, then, that the agent of the complainants, present at the final settlement of the account and receiving the balance, had, for aught which appears, a full opportunity to know all the circumstances, and make objections if he pleased, and that no fraud or mistake is shown in the settlement, whatever error in law may have happened in computing interest, we consider it as a very proper case for length of time to bring repose. In support of this may be seen the following cases: 1 Sch. & Lef. 428; 2 Ibid. 309; 10 Wheat. 152; 1 Madd. Ch. R. 99; 2 Ibid. 308; Miller v. McIntyre, 6 Peters, 66, 67; Cholmondely v. Clinton, 2 Jac. & Walk. 1; 9 Peters, 62; 6 Johns. Ch. R. 266; 7 Ibid. 90. The other claim for the money received by Samuel Savage, on account of his conveyance of a portion of the lands situated in Kentucky, and to which William F. Taylor set up an interest, rests on principles entirely different, both as regards the title of Taylor and the respon sibility of Savage. It does not seem to have been considered fully, heretofore, that those lands did not belong to William F. Taylor, like the rest of his property in South Carolina, absolutely as his own in fee. They came to him by a deed in trust for others, from Mary Forbes, administratrix of William Forbes, who was uncle of William Forbes Taylor, and a naturalized citizen of Pennsylvania, dying with out issue except a son, Nathaniel, who also died without issue after William F. Taylor's death in A. D. 1811, and before September, 1815. The facts in the case do not seem to fix the time with any greater certainty. These lands, amounting to about 4,400 acres, had been conveyed to William Forbes in fee, in A. D. 1786, by one Daniel Broadhead, and by Forbes to John Philips, in A. D. 1794. They seem to 264*] have remained in Philips's *hands till June 3d, A. D. 1802, when he conveyed them to the said Mary, the administratrix of Wilnam Forbes, with the following limitation in the deed, viz.: "in trust, nevertheless, to and for the only proper use and behoof of the right heir or heirs of the above named William Forbes, deceased, in such way and manner as such heir or heirs may order, direct, and appoint." On the 17th day of September, 1805, she, as before mentioned, conveyed them to William Forbes Taylor, the nephew of her husband, and his only heir or relative naturalized in this country, except the son Nathaniel. the rest be ng aliens in Scotland, and the son in such health as not likely long to survive. The lands were, therefore, in danger of escheating to the State of Kentucky, or a part of them at least, unless so conveyed as to pass an interest to some person here, which could be held in behalf of those heirs who might reside abroad, so that their shares might not be lost or forfeited. The limitation in the deed to William F. Taylor from Mary Forbes was the same in form as that in the conveyance to her, except the clause creating the trust begins "in witness, nevertheless," instead of "in trust, nevertheless." Whether this is an error of the press, or in copying, or an intended alteration, is not stated, but it seems not to have been contended in argument that any different meaning was designed to be attached to the expression. After receiving such a conveyance for such a purpose, it appears that in 1808 William F. Taylor instituted thirty-three suits in ejectment in the State of Kentucky against settlers on these lands, which were pending at his death in A. D. 1811. But, as the actions were in the name of nominal lessees, they did not abate by his death, but continued on the docket until a recovery was had in all of them, in January, 1818. Prior to this recovery, and subsequent to the death of William F. Taylor in 1811, it does not appear that any of his executors, or any of the heirs of William Forbes, or any of the devisees of William F. Taylor, did anything respecting these lands, except this. Samuel Savage, in his administration account rendered in December, 1812, charged for a journey to Kentucky in relation to them. And on the 14th of Sepiember, 1815, Mary Taylor and her husband gave a power of attorney to Patrick McDowell and Samuel Taylor, to collect her share, not only in the estate of William F. Taylor, but in the lands in Kentucky of which she claimed to be one of the heirs, in conjunction with Samuel Taylor, from Nathaniel, the son of William Forbes, and their mother Elizabeth. Samuel Taylor, soon after, in 1816, visited this country, and on the 2d of April in that year appointed Adam Hutchinson and Peter Bennock attorneys for himself and sister, not only to collect and receive what was due to them from the estate of William F. Taylor, but to prosecute all actions necessary to recover the real estate in Kentucky belonging to him and his sister. But notwithstanding this, and not exactly *in keeping with it, on the 26th [*265 of September, 1817, Samuel Savage, rather than these attorneys, writes a letter to Samuel Taylor about the Kentucky lands, as well as the estate of William F. Taylor in South Carolina, then unsettled. And to show the further progress as to these lands after the recoveries in 1818, it does not appear that any of the heirs or their agents took possession of them under the judgments, or did anything in respect to them till 1837. But, on the contrary, Samuel Savage visited Kentucky in July, 1818, having removed from South Carolina to Tennessee in May previous, and sold about one fourth of the lands to the occupants for $2,118, calling himself, in the deeds, "surviving executor of the last will and testament of William Taylor," and "authorized" to sell by the will. The other occupants, who did not buy of him, took out soon afterwards injunctions against the judgments recovered, and continued to possess the lands peaceably till William Primrose, an attorney of the complainants, visited Kentucky in 1837 to look after their interests. The previous special attorneys hau not interfered, as Hutchinson, one of them, soon died, and Bennock, the other, declined to act. And Samuel Taylor, in letters to him in 1824 and 1825, inquiring, among other things, if Savage had returned to South Carolina and exhibited any further account of his doings in the ordinary's court, makes no mention of the Kentucky lands. Primrose, soon ascertaining that, in 1818, Savage had sold about eleven hundred acres of them, and the rest had been suffered to remain in the possession of the former occupants, persuaded the latter to give him something more for a relase or quitclaim, but a sum, including what had been paid to Savage, not at all equal to their full value. that may be "any wise belonging to me." But what interest was thus vested in the executors concerning it? A mere naked power to sell? or a power coupled with a trust? or merely a power coupled with an interest? These are necessary inquiries as to the question made in the case, that these lands have escheated to the State of Kentucky, and also are useful, if not necessary, towards settling the validity of the sale by Savage, and the place where, if liable at all, he can be made to account for the proceeds. To determine these inquiries, it will be necessary to look further into the will. In that, after directing the payment of a few small legacies out of the proceeds of his property, he proceeds: "I do hereby order, give, grant, and devise all the remainder or residue of my estate which shall remain after paying the before mentioned legacies to my dearly beloved brother, Samuel Taylor," etc., "and to my beloved sister, of the same place, share and share alike, provided they shall be both alive at the time of my decease and have issue, which issue, after their respective deaths, shall share the same equally," etc. On this and the previous provision in the will, coupled with the facts which have been mentioned, we consider the law to be, that William F. Taylor, atify taking this property by a deed which made it and confirm the deed made as aforesaid by the jan express trust in his hands for the heirs of It is a very important fact, in connection with this arrangement, that Primrose, though at first denying the validity of Savage's doings, was compelled, in order to effect a compromise with the occupants and obtain something more on a settlement, finally to agree, under his hand and seal, in behalf of the plaintiffs, "as far as it is in their power to do so, to ra said Savage," but "reserve to themselves the benefit of all claims they may have against the said Savage or his representatives for the consideration which the said Savage received for the sale of the land aforesaid." After executing the releases, he visited Samuel Savage, in Alabama, and demanded of him the money he had received in behalf of the heirs, and indemnity for injuries they had sustained by his alleged neglect in respect to all the lands. Another material circumstance is very imperfectly stated in the record; but it is probably thus: When William F. Taylor died, in 1811, both Nathaniel, the son of William Forbes, 266*] and Elizabeth, *the sister of William Forbes, being the mother of Taylor, were aliens. On these facts, it is next to be decided, whether the interests of the complainants were such in the lands in Kentucky, when Samuel Savage sold a part of them, in 1818, as to make him liable to the complainants for his conduct, wherever he might reside; and, if so, to what extent. It is first manifest, from a part of the statement, that the interest of William F. Taylor, at the time of his death, was only that of a trustee in these lands, and not as the owner of any portion of them in his own rights. But still, in that capacity, he had power by his will to direct the sale of them by his executors, and William Forbes, held it as trustee for them till his death. He then virtually devised the trust and the lands to the complainants, by directing that the lands be sold, and, after discharging some special legacies, the proceeds be paid over to the complainants, as his residuary legatees. *The executors were thus invested with [*267 a power to sell, coupled with a trust; and the residuary legatees thus became trustees to the heirs is William Forbes. To identify those heirs is somewhat difficult, but is very important to a true construction of the will. Probably, in 1810, they were his son Nathaniel, who, dying between that period and 1815 without issue, his grandmother, Elizabeth Forbes, succeeded to him; and, on her death about that time, the complainants, her only surviving children, succeeded to her. As all these, except Nathaniel, were aliens, and he was in: feeble health in 1811, the paramount intention. of the testator doubtless was to prevent an escheat of this and his own property. From considerations of affection, as well as duty, he must have desired to secure both that and his own estate free from escheat in the hands of those near relatives likely soon to be the heirs. both of William Forbes and himself. Either of two constructions of his will would accomplish this object. The one we have just adopted, considering him as devising the pro into whose hands the proceeds should after-ceeds of the lands, and hence their title, to his wards be placed, to be held, of course, for the benefit of the true cestuis que trust. The clause in his will, bearing on the sale, is: "I do hereby order, will, and direct, that on the first day of January next after my decease, or as near that day as can conveniently be, that the whole of the property that I may die seized and possessed of, or may be any wise belonging to me, be sold." This undoubtedly meant to empower the executors to sell the land he held in trust, as well as that in fee, by including any property brother and sister, subject to a power in the executors, coupled with a trust to sell them and pay certain legacies; or another, which would. consider the power of the executors as one coupled with an interest, and vest the title at once in them for the purpose of selling the lands and discharging the small legacies and debts, if any, but holding the proceeds in trust to be paid over to his brother and sister, for the benefit of the heirs of William Forbes, whomsoever they might then happen to be. See 2 P. Wms. 198; 8 Ves. 437; Lewin on Trusts, 234; Peter v. Beverly, 10 Peters, 533. mit it. 4 Kent's Com. 304, 319; 10 Peters, 535; One of these seems also to have been the con- Schauber v. Jackson, 2 Wend. 34; Bradstreet struction put on the will by Samuel Savage v. Clarke, 12 Ibid. 663; Bloomer v. Waldron, 3 himself, as he proceeded to visit Kentucky twice to discharge his trust in relation to these lands, and finally sold about a fourth of them as surviving executor, which he could not have done honestly, unless deeming himself a power coupled with an interest, to have Hill, 365; Oates v. Cooke, 3 Burr. 1684; Jackson v. Martin, 18 Johns. 31; 1 Ves. Sen. 485; Coster v. Lorillard, 14 Wend. 299. They are inclined, also, when considering it a trust, or its duration and quantity commensurate with the object to be accomplished. Shelly v. Edlin, 4 Adol. & El. 585; White v. Simpson, possessed of more than the naked power which his executor in his answer now sets up. In order to survive to him, it must have been a power coupled either with a trust or an interest. 5 East, 164; 1 Barn. & Cress. 342; 5 Taunt. See cases post. To show that the executors, 385. Though the distinctions between these by such a devise, became possessed of a power different powers are not always well preserved, coupled with a trust at least, reference may be had to the following cases beside those already cited: 1 Atk. 420, 469; 2 Johns. Ch. 254; Clay et al. v. Hart, 7 Dana, 1; Sugden on Powers, 95, 167; 3 Co. Litt. 113, note, 146, 181, a; 2 Story's Eq. Jurisp. sec. 790; 5 Paige, 318; Zebach v. Smith, 3 Binney, 69. One of the tests on this subject is, that a naked power to sell may be exercised or not by the executors, and is discretionary; while an imperative direction to sell and dispose of the proceeds in a certain way, as in this case, is a power coupled with a trust. 7 Dana, 1; 10 Peters, 533; 12 Wend. 554; 2 Story's Eq. Jurisp. sec. 1070; 10 Ves. 536. 268*] *There are some conflicting cases on this subject; but it is not necessary to review them again, it having been so ably performed by Thompson, J., for this court in Peters v. Beverly, 10 Peters, 565. There, as here, the executors were not expressly named as the persons who were to sell the land, yet, say the court, "it is a power vested in them by neces no doubt exists that a power coupled with an interest may be inferred by obvious implication from the whole will, as the fee not being at once vested elsewhere, and it being necessary to have it in the executors to effect the general design (Jackson v. Schauber, 2 Wend. 1, 54, 55, overruling S. C. 7 Cowen, 193), as well as from the usual course, which is by an express devise to the executors. Bradstreet v. Clarke, 12 Wend. *665, 667. Nor is [*269 it of any consequence how small the interest be. Osgood v. Franklin, 2 Johns. Ch. 20; Bergen v. Bennett, 1 Caines' Cas. in Err. 16; 2 P. Wms. 102. It is enough if only to distribute the proceeds as here, or to take the rents or use for the benefit of others. Same cases, and 14 Johns. 555; Zebach v. Smith, 3 Binney, 69. The interest, too, may be equitable or legal. Hearle v. Greenbank, 3 Atk. 714; 2 Johns. Ch. 20. And it is an interest not required to yield a profit or gain, but any title in the estate itself, the thing to be sold. Hunt v. Rousmanier, 8 Wheat. 174, 206. Being sary implication." See, also, 2 Sim. & Stu. given by the will, when it is a power coupled 238; 2 Story's Eq. Jurisp. sec. 1060; 1 Atk. 420; 15 Johns. 346; 4 Kent's Com. 326; 2 Johns. Ch. 254; 4 Hill, 492. There, as here, it was also contended, that if they had the power to sell it was a naked one, and could not survive; but the court say, if they had another duty to perform under the will, with the proceeds, it was a power coupled with a trust or an interest, and survived. 10 Peters, 567; 15 Johns. 349. And the only difference is, that the subsequent duty to be performed there was the payment of debts, and here it was to pay over the money as legacies, and of course after the payment of any existing debts out of it. If William F. Taylor, when making his will, supposed that he, as trustee of this land, could direct the proceeds to be paid over to others than the heirs of William or Nathaniel F., the devise would none the less show his intent to pass to the executors a power to sell coupled with a trust; and they would none the less take it coupled with a trust. Indeed, if it was necessary, in a case like this, to carry into effect the leading object of the testator in the with an interest, and the conveyance under it being by and through the will, it is of course for the use of the person designated in the will, as if it was a devise over to him. And if the whole scope and design of the will could not otherwise be accomplished, it might not therefore be unjustifiable in a court of equity, in a case like this, to let the title vest in the еxесutors first, for the purpose of being sold and turned into personal estate, for the alien legatees, in order to avoid the very escheat now set up by the respondent. Craig v. Leslie, 3 Wheat. 376, 377; 1 Ves. Sen. 144, 485; 4 Kent's Com. 304, 310, note; 14 Wend. 268. Indeed, a court of equity, if it should appear necessary, in order to avoid an escheat, and to enforce any apparent devise of the testator when trustee, directing land to be turned into money and to go to certain legatees, or cestuis que trust, and look to substance rather than form, will consider the act as done at once, which is directed to be done, and the land as money, and thus to be passed to those entitled to it. Peter v. Beverly, 10 Peters, 533, 563; 3 Wheat. 563; 5 Paige, 318; Bogert v. Hertell, will, to consider him as granting to the execu-4 Hill, 495; 2 Story's Eq. Jurisp. sec. 790; tors a power coupled with an interest, rather Newland on Contr. 48 to 64, and authorities than one coupled with a trust, it would not be cited. difficult to sustain such a construction in a court of equity, as we have before intimated. Courts, in carrying out the wishes of testators, the pole star in wills, are much inclined, especially in equity to vest, all the power or interest in executors which are necessary to effectuate those wishes, if the language can fairly ad But as the title here can be considered as passing to the complainants at once, leaving only a power coupled with a trust in the executors, and still accomplish the object of the testator in preventing an escheat, we are inclined to adopt that construction of the will as the safer one, amidst several conflicting au |