The opinion of the court was delivered, January 3d 1870, by
Agnew, J. —That a legacy can be sued for in the Common Pleas, is a matter of express legislation. Act 24th February 1834, § 50. The mode of proceeding is regulated by the six sections following: On a plea of want of assets, the case goes into the Orphans’ Court, for an account, the action of the Common Pleas being, meanwhile, suspended. It is only when the legacy is charged on real estate, and the purpose is to enforce the charge, the jurisdiction of the Orphans’ Court is exclusive. The opening of the judgment will not be inquired into upon this writ of error. It may be remarked, however, that the judgment was by default, and not on trial and verdict. The plaintiff in error cannot complain of the terms on which the judgment was opened. The Court of Common Pleas having jurisdiction for the recovery of legacies, there was no apparent want of jurisdiction in the record. It did not appear that the plaintiff sought to charge real estate. The court was, therefore, not precluded from prescribing terms.
But there are two grounds fatal to the plaintiff’s right of recovery. First. The executor of an executor cannot be sued for a legacy under the will of the first testator: Act 15th of March 1832, § 19, Purdon 275, pl. 16. After this came the 31st section of the Act of 24th February 1834, Purdon 287, pl. 95, vesting in the administrator, de bonis non, the power to recover the assets from any predecessors in the administration of the estate. Many decisions under this section maintained that no action for • assets can be brought, except by the administrator, de bonis non, with or without the will annexed, as the case may be: 9 Watts 479; 7 Barr 315; 6 Harris 313; 7 Harris 201; 11 Harris 164; 4 Casey 264.
*397The second objection to recovery is, that the legacy under Mrs. Hutchman’s will was contingent — depending on a condition precedent, before it could vést. The clause in her will reads thus: “ It is my will that if Esther Maria Bredin shall continue under the direction of my husband, Josiah Hutchman, until she arrives at the age of twenty-one years, she shall receive the sum of $100.” The condition was inseparably connected with the gift of the legacy, and not merely its payment. The right to it depends upon living out the prescribed time, under the direction of the husband. The legatee was a mere dependant, and the testatrix may have had good reasons for the condition. The interests of her husband may have been the consideration of the bequest, or it might be the interests of the legatee, to preserve her in a course of good conduct. There are numerous authorities, that where the contingency is attached to the legacy itself, and not merely its payment, the legacy itself is contingent: Lamb v. Lamb, 8 Watts 184; Moore v. Smith, 9 Watts 403; Seibert’s Appeal, 1 Harris 503. The legacy not vesting until the condition had been performed, the want of a bequest over makes no difference. It becomes merged in the residue, if it never vests.
Judgment reversed, and a venire facias de novo awarded.