Opinion,
Mr. Justice Paxson :There is no ambiguity in the third and fourth items of the will of Henry Heffner, by which he devises to his sons John and David respectively certain real estate. By item third he devises to his son, John Heffner, his heirs and assigns forever, three separate tracts of land, “he or they paying thereout the sum of three thousand dollars without interest in the following payments, viz.: five hundred dollars each and every year to my executor, proper deeds and possession to be given to him as soon as he attains the age of twenty-one years.” By item four he devises certain other real estate to his son David Heffner, he paying thereout a like sum of three thousand dollars in the same yearly payments of five hundred dollars each; “ proper deeds and possession to be given to him as soon as the said John Heffner shall have attained the age of twenty-one years.” It is as clear as language can make it, that possession was not to be delivered to either of the sons, of the real estate devised to him, until John Heffner shall have attained the age of twenty-one years.
When the testator died, John was only sixteen years old. He still lacks some months of majority. The question is whether it was the duty of the executor to have collected the annual payments of five hundred dollars from John and David prior to the time when the will authorizes them to take possession; in other words, whether these payments commence from the death of the testator. The court below held that the executor should have collected this money, and ordered him to file an account charging himself with the same. From this decree the executor appealed.
It would certainly be a hard case to surcharge this executor with money which he had not received, and which he could not have collected by any process of law. John Heffner is still a minor and no judgment could be recovered against him, even though he were entitled to the possession. And while David is of age, we cannot assume the testator intended him to pay three thousand dollars out of the real estate devised to *472him before he was legally entitled to the possession. We see nothing in the will to make any distinction between them in this respect. John could not be made to pay for the reason above given. He could not pay if he wanted to, because, conceding both title and possession to be in him for all purposes, he could not borrow a dollar on his own credit or the credit of the property. He could not give a binding obligation of any kind.
Nor do we think it material that the executor gave each of them possession on the death of the testator, if the fact be so. The testator directs “that my two sons, David Heffner and John Heffner, shall keep and maintain my said wife during her natural lifetime and provide her with food, lodgings, grain and all things necessary for her maintenance and support, but only if she remains single, otherwise not.”
Conceding here was an implied authority which would justify the executor in placing the two sons in the possession of their respective properties, it still remains that the clause above quoted was inoperative as to John during his minority. This the testator must be presumed to have known. Thus we have the whole burden of his mother’s support thrown upon David during his brother’s minority, which may be the reason why the testator did not require David to pay at an earlier day than John. Be that as it may, he did not require it, which is sufficient for present purposes.
The decree is reversed at the cost of the appellee.