dissenting:
I am of opinion in this case that the bill of complaint ought not to have been dismissed by the court below, and therefore I can not concur in the conclusion of my brothers in affirming the order appealed from. The demurrer to the bill by the trustees was simply for the supposed want of necessary parties; and while it may be conceded (though not admitted by me) that the persons mentioned in the demurrer would be proper parties to the bill, if they resided in this District and were subject to the jurisdiction of the court, yet-, being beyond the jurisdiction of the court, unless they were shown to be necessary parties, I do not think their absence furnishes ground for demurrer, and upon which the bill should be dismissed. Indeed, for any practical, beneficial purpose, it is difficult to see that’ the persons referred to in the demurrer would even be proper *423parties to this bill. The bill is not for an account and distribution of the fund, but only to obtain possession of the fund from the originál trustees, by the party entitled to receive it; and the bill does not seek to obtain any other decree than that to direct the trustees to pay over the fund to the complainant, and to authorize her to receive and give full and effective acquittance to the trustees. There is no action asked of the court that would in any manner conclude or affect the rights of the parties that may be interested in the remainder of the fund; and therefore they are not necessary or even proper parties to this cause.
The bill is filed by Miss Mary Frances Waite, sole executrix of the will of her mother, Mrs. Amelia C. Waite, the widow of the late Chief Justice Waite, against Joseph Larocque, George Hoadley and Charles C. Beaman, of the State of New York, as trustees, and by the bill the circumstances under which the trust fund here involved was created are fully stated. Mrs. Waite, the widow, died some years after the death of her husband, leaving a will, by which she disposed of the fund as she was empowered to do, and her daughter, the present complainant, is the sole executrix of that will; and the daughter has obtained probate of the will, and has duly qualified as executrix thereof; and, on the facts • stated in the bill, she prays that the trustees may answer, and that a decree may be passed requiring the trustees to deliver to her the fund or the securities for the same, and that she may have such other and further relief as to the court in the premises may seem right and proper. To the bill the trustees have voluntarily appeared, and instead of making answer to the facts alleged, they have interposed a demurrer to the bill for want of parties thereto.
Whether there be sufficient ground for the demurrer depends upon the terms of the original declaration of trust, and the limitations contained in the will of Mrs. Waite, in execution of the power given her to dispose of the trust fund.
*424By the terms of the original declaration of trust, it is •declared that the trust fund “shall be held by the trustees ¡and their survivors and successors in trust, to apply the ■income and principal, or any part thereof, in their absolute •discretion, to the use and benefit of the widow or family of the late Chief Justice Waite, and, upon the death of his widow, to pay over whatever balance may remain as she shall by her last will and testament direct.” This was a general power of disposition, with the single restriction that it should ■be exercised only by last will and testament. In that mode she •was authorized to dispose of the fund as if it were her own ■absolute estate.
By the last will and testament of Mrs. Waite, the widow of Chief Justice Waite, she disposed of this fund, with other property, in the following terms: ■
“I also give, devise and bequeath to my said daughter, Mary Frances Waite, if she survives me, the use and income, so long as she, my said daughter, lives and remains unmarried, of the fund collected in the city of New York for the use and benefit of the widow or family of the late Chief Justice Waite, and which, by the paper under which it was subscribed, was placed in trust in the hands of Messrs. Joseph Larocque,’George Hoadley, and Charles C. Beaman, and the balance of which it was prescribed by said paper that, upon the death of his widow, they should paj1, over as she should, by her last will and testament, direct; and also •of the other fund collected for the use and benefit of said widow or family of the-late Chief Justice Waite, and placed in the hands of Samuel Blatchford, an associate justice of the Supreme Court of the United States, and held and invested by him. In case my said daughter shall be married at the time of my decease, or in case she shall be married after my decease, then it is my wish, and I direct, that the moneys and securities which shall then constitute the said two funds, and the property mentioned in this clause of my will which came to me by will from my late husband) *425or such part thereof as my said daughter may have at the time of her marriage, if married after my decease, be divided into four equal parts or shares, one of which parts or shares, I give, devise and bequeath to my said daughter, Mary Frances Waite, to be her own separate property; to have and to hold the same to her, her heirs and assigns forever. The three parts or shares thereof remaining I give, devise, and bequeath as follows, viz.”
Then follow the bequests of the three remaining shares or parts to the three daughters-in-law of the testatrix and their children.
By a subsequent clause of the will, it is provided that“ if, from any cause, the income and use of the property devised by me, as aforesaid, to my daughter, Mary Frances Waite, shall not be sufficient for her comfortable support and maintenance, it is my wish, and I direct, that she use so much of the principal thereof as she may consider necsssary for her support and maintenance, so long as she lives and remains unmarried. It is also my wish, and I request and direct, that my said daughter shall have absolute control of all the property devised, to her by this, my will, and that no part thereof shall at any time be subject to the payment of any debts of any husband she may have, or in any manner be under the control of any husband she may have during her lifetime.”
There would seem to be no ground for reasonable doubt that Mrs. Waite intended that her daughter should have the possession, control and full enjoyment of the.fund during her life, or until she should marry, and that the trustees should pay over to her the fund. It W’as clearly not intended by Mrs. Waite, nor was it intended by the founders of the fund, that the trustees should continue to hold and administer the fund beyond a reasonable time after the death of Mrs. Waite, or the probate of her will. They have a right to be discharged of their trust, and the question is, whether Miss Mary Frances Waite, the appointee of the fund for *426life, or as long as she remains unmarried, and the sole executrix of her mother’s will, has a right to receive the fund and give a valid and effective acquittance therefor to the trustees? The trustees, as I understand from counsel, are only concerned and desirous to pay over the fund in accordance with the direction of the will of Mrs. Waite, and. to be legally discharged from their duties as trustees. I can not see or appreciate the supposed difficulty in paying over the fund to the complainant. She can, according to my judgment, receive the fund and give a valid acquittance therefor, and she would hold and control it under her mother’s will, in a dual capacity; first, in her own right as appointee under the will, during her life or until married, and, secondly, by virtue of her appointment and qualification as executrix of the will, she would hold what may remain of the fund, as trusten for those in remainder. This would seem to be the right and justice of the matter, and I think it is in accordance with well settled precedent and authority.
In the case of In re Philbrick’s Settlement, 34 L. J. (Ch.) 368, this question seems to have been directly presented to Lord Romilly, M. K., who was a great master of chancery jurisprudence, and of all the practice that obtained in its administration. In that case, the power given to the testatrix was a general power of appointment, and she executed the power in favor of several persons, and appointed executors. Lord Romilly held that the executors, and not the trustees, were the proper persons to distribute the fund among the appointees, and that it ought to be paid over to the executors for distribution. Pie said : “ Where the donee of a general power appoints the property to certain persons beneficially, the original trustees were bound to carry the appointment into execution ; but if the donee appointed the property to trustees, those trustees were entitled to receive the property to be held upon the trusts declared by the donee; and when a married woman made a will in the exercise of a power and appointed executors, inasmuch as *427she could only make her will by virtue of the power, and could only have appointed the executors for the purpose of administering the appointed property, she must be considered to have appointed the property to the executors as trustees. . . . By the appointment of executors, the duty of administering the fund was, in his opinion, taken away from the original trustees and committed to the executors.” In the present case, the active duties of the original trustees terminated with the probate of the will of Mrs. Waite, and their only duty then was to pay over the fund as the testatrix had directed by her will.
The same principle was fully recognized and acted upon in the case of Hayes v. Oatley, L. R. 14 Eq. Cas. 1. In that case, under a settlement of a sum of £10,000, secured by mortgage, and which was vested in trustees upon trust for E. S., the wife of W. S., for her life, and after her death for W. S. for his life, and subject as aforesaid, upon trust for such persons as E. S. should by deed or will appoint, and in default of appointment for W. S., E. S., the wife, made a will, by which she directed that W. S. should enjoy the income of the fund during his life, subject to payment of two annuities; and she directed certain pecuniary legacies to be paid after the death of W. S. out of one moiety of the fund, and she gave the other moiety of the fund and the residue of her property to W. S., whom she appointed executor. The trustees of the settlement paid over the whole trust fund to W. S.; and part of the £5,000 applicable to the payment of the pecuniary legacies was lost. But it was held that the payment over by the trustees to the executor was a full discharge to them. And Lord Romilly, M. R., said : “ I entertain no doubt that the trusts of the settlement were completely discharged when the trustees paid over the £10,000 to the executor of Mrs. Stubbs. If it were not so, the trustees would have to carry into effect all the limitations of her will.” And so in the present case, if the fund could not be validly paid over by the trustees to the execu*428trix and appointee for life, they would have to hold the fund to carry into effect all the limitations of Mrs. Waite’s will. This was clearly never contemplated either by the founders of the trust fund, or by Mrs. Waite in appointing the fund.
In the subsequent case of In Re Hoskins’ Trust, 5 Ch. Div. 229, before Vice Chancellor Malins, the same principle was followed, upon a state of case very similar to that of In Re Philbrick’s Settlement; and it was held that the trustees should have paid the fund over to the executors of the will for distribution; and they were ordered to pay the costs, because of their failure so to pay over the fund. In commenting upon the facts of that case, the vice chancellor said : “But the next step taken was to put in not less than sixty-nine folios of printed affidavits for the purpose of showing who the parties were who were entitled to this fund-These were put in by the cestuis que trust, but what have they to do with that part of the case ? The executors are the persons entitled to distribute the fund, and it is for them to ascertain who the parties are. Under all these circumstances, the proper course would have been for the trustees to pay the money to the executors.”
From the order of the vice chancellor in that case, directing the trustees to pay costs, an appeal was taken; and while an appeal was held not to lie, Jessel, M. R., and James, L. J., did not hesitate to say, that “The law is now settled that where a donee of a general power of appointment over a fund of personalty makes an appointment of the fund by will, and appoints an executor, the executor is entitled to receive the appointed fund.” L. R. 6 Ch. Div. 283.
There can be no question at this day that the mere fact of giving the personal estate, or the residue thereof, to one for life, with remainder over to another, does not of itself destroy the right of the 'legatee or appointee for life to the enjoyment of the property or fund specifically; and where such is the apparent intention of the testator, a court of equity *429will secure and protect such enjoyment. Evans v. Iglehart, 6 G. & J. 171; Boyd v. Boyd, 6 G. & J. 25; State v. Robinson, 57 Md. 486-496.
And a bill will not be entertained on the complaint of the remainderman against the legatee for life, for security of the fund, unless it be alleged and proved that there is actual danger of waste or misappropriation of the property. Without such ingredients, says Judge Story (Eq. Jur., Sec. 604), “ the remainderman is only entitled to have an inventory of the property bequeathed to him, so that he may be enabled to identify it; and, when his absolute right accrues, to enforce a due delivery of it.” But, of course, if danger of waste and misappropriation of the property be shown, a court of equity will be active in affording protection to the remainderman, and will require bond for the preservation and forthcoming of the fund or property when the remainderman may be entitled to receive it.
In this case the complainant has submitted herself to the direction of the court, and it will be within the power of court to prescribe such directions as will preserve the fund, if at any time hereafter it should be made to appear that the interest of those in remainder is in danger of loss.
Entertaining these views of the case, I think the order appealed from ought to be reversed, and the cause be remanded to the court below, with directions that the demurrer be overruled, and that the trustees be required to answer the bill.