The only question here is, whether the trustee is chargeable on his answer, as having any goods, effects, or credits of the principal defendant in his hands. The defendant was the husband of Amanda Williams; and the trustee summoned was the executor and trustee under the will of Levi Robinson, the father of Amanda Williams. By the will of Levi Robinson, deceased, a fund was placed in the hands of Levi R. Percival, in trust, to “ manage the same in a judicious and faithful manner during the natural lives ” of the testator’s “ daughters Mary Robinson and Amanda Williams and the life of the survivor of them.” It will be necessary to state the terms of that part of the will only which relates to the daughter, Amanda Williams. The will proceeds to provide, that he the said Percival shall annually expend the income of said estate, and so much of the principal thereof, at the discretion of the said Percival, as shall be necessary therefor, in the comfortable support and maintenance of the testator’s said daughter, and generally to supply her with food, clothing and necessaries, in sickness and in health, and apply so much of the principal thereto, as in the judgment of the said Percival he may deem necessary; also to pay her funeral expenses, with an ultimate trust for heirs.
It appears to us, that, under this will, no money has ever become due to the husband or to the wife. When nothing remains for a trustee to do but to pay over money on demand, it may be regarded as a debt, and assumpsit will lie for it. Roper v. Holland, 3 Ad. & Ell. 99. But no such case has ever occurred here. Both income and principal were to be applied to relieve the necessities of the daughter, at the discretion of the trustee, and not in any event to be paid to her. Some stress was laid on the direction to the trustees annually to expend the income, &c.; but, taking the whole sentence together, we think it was at his discretion, and so *493far as he should judge necessary, as well in regard to the income as the principal. But, were the construction of this clause otherwise, it would not vary the result, because the trustee is to apply the money for the use of the cestui que trust, and not to pay the money to her. The circumstances disclosed, as far as they may have any effect, would tend to confirm this construction. The fund is quite small, the income of course small, and it might well be presumed that the testator, during the health and prosperity of the daughter, might be desirous that the fund should gradually accumulate to meet the time of want and sickness, and claims for funeral expenses, which he had in view.
Trustee discharged.