The opinion of the Court was drawn up by
Parker C. J.The question in this case is, whether tie bond tendered by Rea the defendant is a sufficient performance of his promise, in that regard, made by implication to the plaintiff, as set forth in the writing signed by the plaintiff and his wife, dated January 14, 1826.
If the covenant made by Rea on the receipt of the property is in force, the tender of the bond would be no performance, for he covenanted that he would pay over to M‘Kenzie whatever balance should be in his hands, after paying the debts for the discharge of which the property was conveyed to Rea.
But on January 14, 1826, the fund being in his hands, M‘Kenzie and his wife join in a declaration of trust, in which that fund is appropriated to the sole use and benefit of their *85children, and Rea is authorized to hold the same to their use, and to appropriate the same according to his discretion, to their maintenance and education, and is required to give bond for the faithful execution of his trust, and to account for and refund the balance mentioned on demand. Now if he has complied with this direction, he has substantially performed the pre-existing covenant, for he has disposed of the fund according to the wish and direction of the plaintiff. The bond offered is on condition that he will faithfully execute the trust, and that he will pay over the balance which may remain in his hands on the death of the plaintiff, to the children of the plaintiff. This is not in terms the bond which they required him to give, but if substantially the same, it is sufficient. Now by the writing, the whole fund was appropriated to the children, without any limitation, and it is stated that the wife, in furtherance of this object, had relinquished her right of dower in the real estate which was sold to pay the plaintiff’s debts and create this fund. The bond tendered secures more than was reqmred, for the defendant was to apply the fund to the use of the children at his discretion. The term refund, in the writing, can have no other meaning, than that he was to pay over to whosoever had the right. The condition then, to apply the proceeds to the maintenance and support of the children, and to pay over to them what shall remain after the death of the plaintiff, is a substantial compliance with his promise. We are not informed whether the action is upon the covenant, or upon the implied promise, but if either, we think it is not maintained.