delivered the opinion of the court, March 6th 1882.
The contingent legacy of $2,000 to the plaintiff below was to be paid to him, in the language of the will, “ when lie shall attain the age of twenty-one years, should he so long live; but should my grandson die before attaining the age of twenty-one years, then this bequest to him shall be null and void.” After devising to each of his two sons, Augustus B. Leedom and Emmor S. Leedom, a tract of land, together with certain personal property thereon, in trust as therein set forth, and making provision for the payment of his debts, expenses of administration and the legacy aforesaid, the testator says: “ If any other moneys shall be needed for the payment of said debts and expenses, or satisfying said bequest to George P. Steel, I charge *584one-half thereof i;pon each of said farms and properties devised to my said sons, Augustus B. and Emmor S., as aforesaid, and direct each of my said sons to pay such half when needed out of the said trust estates.” The legatee attained his majority in August 1879, and the legacy, theretofore contingent on that event, became absolute.
Shortly after the will was probated, in 1872, the two sons, executors therein named, obtained authority from the Orphans’ Court to mortgage the real estate above mentioned, for the purpose of paying debts of the testator; and, in pursuance thereof, on June 3d, they mortgaged the land devised to Emmor S. • Leedom, to secure the payment of $3,800, and on June 20th, they mortgaged the other part to secure the payment of $3,200. In December of the same year, Augustus B. Leedom, as trustee, under an order of the same court, authorizing a lean for the purpose of making improvements and repairs, borrowed $5,500, and secured the same by mortgage on the land devised to him in trust. The two last mentioned mortgages, on the same tract of land, were duly recorded, and afterwards assigned to appellant, who subsequently obtained judgments thereon, and sold the mortgaged premises in 1876. The net amount realized by the sheriffs sale to Mrs. Lombaert being insufficient to pay the mortgages in full, the sheriff, after deducting costs, took her receipt, as first lien creditor, for the residue. To this application of the purchase-money, the appellee, George P. Steel, objected, claiming that one-half of the legacy payable to him when he obtained his majority was a lien on the land sold, and should be paid out of the proceeds, in preference to the $5,500 mortgage. It was conceded that the sale upon the other mortgage for $3,200, given by the executors for money borrowed to pay debts, divested all liens, and that appellant took a clear title. The lien of the legacy, if any existed at the time of the sale, was undoubtedly divested, and the purchase money being substituted for the land, the legatee was remitted to that fund. Inasmuch as the contingency on which the legacy became absolute and payable had not yet happened, an arrangement was made whereby the $1,000 bond was placed in the hands of Messrs. Junkin and Smith, for the purposes expressed in their declaration of trust. In making this arrangement, it was manifestly the intention of the parties to substitute the bond for a corresponding amount of the purchase-money, and thus permit Mrs. Lombaert to take credit for the net proceeds of sale, and lift her deed, and at the same time protect the rights of the legatee, in case he had any, when the time for payment of his legacy should arrive. He was required, within four months after attaining his majority, to institute proceedings at law or in equity for the purpose of having his right to payment out of *585the fund legally determined. "Within the time named he accordingly filed the bill in this case against the trustees, and subsequently, by leave of court, make Mrs. Lombaert a party thereto.
As we have already seen, the testator, contingently at least, charged one half of the legacy upon the farm and property devised in trust, to his sou Augustus, and directed him to pay the same, when needed, out of the trust-estate. For present purposes, it may be assumed there was a lack of other assets wherewith to satisfy that part of the legacy, and that it was, therefore, a lien on the land afterwards mortgaged and sold by appellant on her writs of levari facias.
The main contention of appellant is, that the lien was divested by the Orphans’ Court proceeding, under which the land was mortgaged by the trustee, for the purpose of raising money with which to make necessary improvements and repairs. The proceeding was under the Act of 1853, known as the “ Price Act,” and appears to have been regularly and carefully conducted. That Act provides, inter alia, that where real estate shall have been acquired by descent or last will, the Orphans’ court shall have jurisdiction to decree the sale, mortgaging, etc., of the same, when the court “shall be of the opinion that it is for the interest and advantage of those interested therein, that the same should be sold, mortgaged,” etc. It declares that the title of purchasers under all such sales, mortgages or conveyances, shall be a fee-simple, indefeasible by any party or persons having a present or expectant interest in the premises, and be unprejudiced by any error in the proceedings of the court: that the purchase or mortgage money, as the case may be, shall, in all respects, be substituted for the real estate sold 'or mortgaged, as regards the enjoyment and ownership thereof, after the payment of liens, and shall be held for and applied to the use and benefit of the same persons, and for the same estate and interest, present or future, vested, contingent or executory, as was the real estate sold or mortgaged; that the money so raised shall be expended for no other purpose than the payment of liens upon, or the improvement of the same real estate; and it is made the duty of the court to decree the proper application of such purchase or mortgage money to the discharge of liens, and to parties interested, as and when they may be entitled.
In his application to the Orphans’ Court for authority to mortgage the property, the trustee brought himself clearly within the provisions of the Act, and there appears to be no error in the proceedings: but if there was, it is expressly provided, as we have seen, that purchasers under mortgages thus created shall not be prejudiced.
From those provisions of the Act under which the mortgage was executed, it is very clear that, as to any lien the legatee may *586have had before, the mortgage money was substituted for the land, and he was bound to look to that fund. The court doubtless had the power, and if application had been made it would have been its duty to have directed the investment of a sum sufficient to pay one half of the legacy, when by the terms of the will it could be demanded. It appears from the report of the master that there is yet in the hands of the successor to the original trustee, a portion of the fund raised on the mortgage, more than sufficient for that purpose.
The claim of the plaintiff below was resisted on other grounds, but ■ it is not necessary to refer to them specially. That covered by the second assignment is technical and without merit. Enough has been said to show that the legatee never could have had any right to the proceeds of the sheriff's sale, and consequently he has no claim on the bond in the hands of the trustees.
Decree reversed; and it is now ordered and decreed that the bill be dismissed, and that the costs, including the costs of this appeal, be paid by the appellee.
Merour, J., dissents.