The opinion of the court was delivered by
Read, J.Israel Robinson died on the 29th September 1848, leaving a will, dated the 1st July in the same year, which was admitted to probate, and letters testamentary were granted to the executors Thomas C. Mayberry and "William Amer. By his will, after the payment of debts and funeral expenses, and of certain legacies, one of which was general and the other specific, he gave to his wife an annuity of three hundred dollars during life and while she remained his widow, payable quarterly. He then authorized and empowered his executors to put all of his property, not above devised and bequeathed, out at interest, on mortgage, and out of the first interest received, the said annuity to his wife was ordered to be paid. He then directed the remainder of his estate should be divided into six parts, but really into five parts, owing to the death of one of his children before him, and the provision in a subsequent part of his will, in case of such a contingency.
He gave and bequeathed one-fifth to his son James Berry Robinson, the interest during his minority to be applied for his support and education; and the four other fifth parts of such remainder or residue he then bequeathed severally to Benjamin Franklin Robinson of New York, to have and to hold the same for ever, in trust for each of his four minor daughters, that he would use and employ the clear income thereof (that is, of each respective fifth), or so much as might be required, for her support and education during her minority, or until her marriage or coming of age of twenty-one years, whichever should first happen; and after she should attain such full age, that he should pay her the income aforesaid, as the same should accrue, and not by way of anticipation, and on her marriage to take a part of the principal of the said money thereby given to her, not exceeding five hundred dollars, *263to buy furniture, which he was to hold in trust for her and pay her the income of the remainder during her natural life, and pay the said principal thereby given to said trustee for her, to her appointees by her last will, and for want of the same to her next of kin.
Whatever doubts may have arisen in the minds of counsel, the scheme of the will is perfectly plain, and if the acting executor had settled his account at the end of the year, and asked the ■ instructions of the Orphans’ Court, a simple course would have been pointed out to him, which would have relieved him from all difficulty. The court would have ordered him, having paid all debts and prior legacies and bequests, to have invested on mortgage a sufficient amount to secure the annuity to the widow, and to pay over whatever balance there was, in the proper proportions, to the trustee of the minor daughters of the testator, and whenever future collections were made to pursue the same method in relation to their distribution.
The executor would thus have performed all the duties imposed by law on him, and the trustee would have been bound to apply only the income to the support and education of the minor children, his eestuis que trust.
Instead of doing this, the executor kept the whole of the estate in his own hands, with a large portion of it uninvested, paying over for the support and education of the minors what he thought proper, without regard to the income, and settling no account whatever with the register for a period of nearly eight years.
The executor, therefore, not only assumed his own proper duties but also those of trustee for these minors, and as such he was bound strictly to follow the will of his testator.
Upon this clear principle he' was properly charged with all excess of expenditure for each child, over its own income, and the loss was to he sustained by him; and he would not be relieved from this, even if the trustee appointed by the decedent had consented to this breach of trust, which, it is clear from the evidence, he never did.
Upon money in the hands of the executor uninvested, the auditor was right in calculating interest up to the filing. of his report, and the accountant has been kindly relieved from showing the profits he may have made from its use, and with which he could have been rightfully charged.
We see no error in the disallowance of certain commissions bya the auditor and by the court, except in relation to the furniture valued at $429.99, upon which a commission of five per cent. ($21.50) should have been allowed. This being corrected, the decree is affirmed.
And now, February 17th 1859, it is ordered and decreed that the principal sum of $22,123.84, decreed to be due on the first day of April 1857, be reduced by *264the deduction of $21.50, making the true principal sum in the hands of the accountants on that day $22,102.34, and with this modification the decree of the Orphans’ Court is affirmed.