delivered the opinion of the court,
This contention is whether the appellant has a right to be heard in regard to the management of a portion of the residuary estate devised by John Hartman. That portion is devised in these words: “ One-seventh part of said residue I give unto my executors in trust, to be invested by them to the best advantage, and they to expend out of the interest and income thereof annually, an amount not exceeding $150 for the comfort and maintenance of my son Hamilton, as long as he shall remain unmarried; and if he should marry, to expend thereafter, if the said trustees shall deem it necessary for the maintenance and comfort of him and his family, all the interest and. income of the aggregate of this part, for and during his life; but in no event to give any, money to him, nor pay any in any manner for him so that he may get control of it or dispose of anything procured for him or his family by it, nor so that it may be taken or used for the payment of any debts contracted by him.. At the death of said son Hamilton, the principal of this share, with any interest remaining, shall be paid unto his said children, if any, or their legal representatives, and if he leaves no children or legal representatives, then over unto his brothers and sisters and their legal representatives.” The testator died in 1853. Hamilton is fifty-four years of .age and has never married. The appellant is one of his brothers. The executors named in the will acted as trustees of this fund until 1859, when they filed their account of the trust, and were by the court discharged therefrom. In January I860, the appellee was appointed trustee in their place, and the fund passed into his hands. In 1878, he filed his account, in which he states the sum on hand to be about $17,000. The appellant, claiming the fund should be much larger, filed exceptions thereto. The court struck them off, holding he had no such interest in the fund as entitled him to be heard. All the errors assigned are substantially to this action of the court.
*206The learned judge thought the case was controlled by Keene’s Appeal, 10 P. F. Smith 504. The facts of that case distinguish it from the present case. There the entire interest in the residuary estate was given to the testator’s niece, Ellen, during her life, the principal to her children, lawful issue absolutely; but if she died unmarried, with power to devise the interest thereon to whichever of her brothers she might consider most worthy ; and the principal to the children of her two brothers, lawful issue absolutely. To the first taker there during her life, the interest was given absolutely, and also a contingent and qualified right to dispose of the interest by will. In the present case there is no absolute gift to Hamilton of any part of the interest; but it rests in the discretion of the trustees, and they are prohibited from paying him more than a small fraction of the interest. There Ellen was directly interested in watching the trust fund and the accumulations thereof, for she was entitled to the whole interest during life. Here the highest annual sum that Hamilton can receive is so small that he has no incentive to look after the fund. Beyond him no person in being is interested in examining the account of the trustee, except the appellant, and others sustaining the same relation to the fund. He now stands but one step from its enjoyment. He will reap its fruit unless deprived thereof by two contingencies. The one the marriage of Hamilton, each year becoming less probable; the other, his having issue. It is not our purpose to question the correctness of the rule declared in Keene’s Appeal under its facts and the statutes then in force. The insufficiency of the statute then existing, to enable the owner of a contingent interest to take action which he deemed necessary for the protection of that interest, led to the enactment of the Act of 17th April 1869, Purd. Dig. 452. The object of it as expressed in the title is, “An Act for the protection of contingent interests.” It is true the letter of the act authorizes the owner of a contingent interest to require an executor or administrator to make and exhibit an account of his trust, yet the manifest intent is to protect a contingent interest, and give the owner thereof a right to call the trustee to an account. As the act expressly authorizes the owner of such an interest to require an executor or administrator to settle his account, the whole object and spirit of the statute requires us to apply it to the custodian of this fund. The appellee holds the same fund that the testator gave to the executors charged with the trust. The fund and the trust were transferred from them to the appellees. They should be held liable to investigation by the same person who could have investigated the accounts of the executors. To deny the right of the appellant is practically to declare that no person, who feels any interest in a judicious administration of the trust, can be heard. This is a conclusion to which we ought not to arrive unless compelled by the statute. Fortunately, the Act of 1869 removes all such constraint. Without deciding whether or *207not, the appellant has a vested interest (which is not clear), we still think he has such an interest as entitles him to require the appellee to exhibit his account, and to file exceptions thereto. The learned judge, therefore, erred in dismissing the exceptions in consequence of insufficiency of interest in the appellant. The merits of the facts alleged in the exceptions are not now before us, and we indicate no opinion thereon.
Decree reversed; rule to show cause why exceptions should not be stricken off, discharged; exceptions restored, and a procedendo awarded. It is further ordered, that the costs of this appeal be paid by the appellee.