#### WASHINGTON POOL AND WIFE & AL. vs. SAMUEL DAVIS, ADM’R, &c.

Where personal property is left to-one for life, remainder to others, and, after the death of the tenant for life, it comes to the possession of the administrator of such tenant, those entitled in remainder cannot sue the administrator by petition in a Court of law, under the Statute, Rev. Stat. eh. 64, see. 5, but must proceed in equity ¡ .because no such fiduciary relation as that contemplated by the statute exists between the parties.

Appeal from the Superior Court of Law of Pasquotank County, at the Fall Terna 1849, his Honor Judge Bailey presiding.

This was a petition filed in the Superior Court of Law of Pasquotank County, at the Fall Term 1849. The petitioners alleged, that one Sylvanus Clark died about the year 1837, leaving a last will and testament, a copy of which is appended to the petition that Lurana Clark, named in the said will, is dead, leaving no issue that the executor sold the land, directed in the said will to be sold, hired out the negroes, and sold the chattels ; and that, after the payment of the debts, the executor paid over to the guardian of the said Lurana the surplus, arising from the sale of the said land and chattels, and the hire of the negroes, and that the same, after the death of the said Lurana, has been paid over by the guardian to the defendant, Samuel S, Davis, who has been duly appointed administrator of the said Lurana ; that the petitioners are the heirs at law of William C. Donald, mentioned in the said will, and claim, as legatees in remainder, to be entitled to all the said surplus, arising from the *311sales of the land and chattels and the hires of the negroes, and pray that the said Samuel S. Davis, administrator as aforesaid, may be decreed to pay them such surplus.

The defendant, Samuel S, Davis, admits the death of Sylvanus Clark, that he made a last will and testament as referred to in the petition, which was duly proved ; that the said Lurana died, leaving no issue, that he administered on her estate and that he has received from her guardian the amount stated in the petition, and that the petitioners are the heirs of William C. Donald, mentioned in the will. The defendant says that he is advised and so insists, that the petitioners are not entitled to any thing under the said will but the proceeds of the chattels sold, and not to any part of the proceeds of the land sold, &c.

The following is a copy of the will of Sylvanus Clark, appended to the petition.

“I, Sylvanus Clark, &c., do make, publish and declare this my last will and testament. It is my will and desire that the tract of land, called “The Hendrick Taylor tract” to be sold, and six head of cattle. Also, it is my will and desire, that this money may be to pay my just debts, and the balance to the use of and benefit of my daughter, Lurana Clark.

It is also my will and desire that my daughter Lurana Clark shall have this tract of land, whereon I now live, one half of the crop of corn, that is now growing, to be sold for the use and benefit of my daughter Lurana Clark.

I also want my negro man Smith to be hired out for the use and benefit of my daughter, Lurana Clark — one feather bed and furniture to be sold, and all my chattel property, household and kitchen furniture, and the money to the use and benefit of my daughter Lurana Clark, to her and her heirs forever.

Or, if she die without any heirs, for the money to be equally divided amongst William C. Donald’s heirs.

*312It is also my wish and desire, that my wife Mary Clark, shall have the use of the land, whereon I now live, as long as she keeps my child, Lurana Clark.” Then follows the appointment of executors.

Upon the hearing on the bill and answer, the Court decided, that the petitioners were only entitled to the proceeds of the chattels directed to be sold, and referred it to the Clerk and Master to enquire and report according to this decision of the Court.

From this interlocutory order, by leave of the Court, the petitioners appealed.

A. Moore, for the plaintiffs.

Ehring halts, for the defendant.

Pearson, J.

The will in question was made after the year 1S27, and it was properly admitted, that the limitation over is not too remote.

The matter controverted is, what part of the fund passes to the executory legatees under the words: “the money” in the clause, “or if she dies without any heirs, for the money to be equally divided amongst William C. Donald’s heirs?”

His Honor was of opinion, that the executory legatees were entitled only to so much of the fund, as was made by the sale of the property included in the clause : “one feather bed and furniture to be sold, and all my chattel property, household and kitchen furniture, and the money to the use and benefit of my daughter Lurana Clark, to her and her heirs forever.”

This construction was, no doubt, suggested by the fact, that, as the will is written, this clause immediately precedes the clause containing the limitations over. There is, however, a full stop, and a space of nearly a whole line between them; and, although it is difficult to determine what the intention is, where a will is so badly writ*313ten and is so entirely without order and connection, as this one, we are satisfied, that the ^construction adopted by his Honor is too narrow, and that the limitation over includes, not merely the small part of the fund arising from the sale of the property contained in the above recited clause, but embraces the whole fund — “the money” arising from the sale of all the property, which the testator directs to be sold.

After making ample provision for the favorite object of his bounty — his daughter — the testator attempts to> make a disposition of what he had given to her, in the event that she should die without heirs. In doing so, he uses^ the words, “the money.” What money ? That, which he had given to her and her heirs. These words, are broad enough to include the whole fund, viz: the proceeds of the sale of the Taylor tract and six head of cattle, after payment of debts, the proceeds of the sale of one half oí the crop of corn, and the proceeds of the sale of the bed and furniture, and household and kitchen furniture. We can see no reason for restricting their meaning, but a very sound one for allowing them to embrace the whole fund ; because, it is unaccountable, why the testator should dispose of a small fraction of the fund, by making a limitation over in the event of his daughter’s dying without heirs, and leave the larger part of it undisposed of, when the same reason existed for making a similar disposition of the whole.

The words, “the money,” are not broad enough to include the tract of land, on which the testator lived, nor the negro man Smith ; for, there is no direction to convert either this land or the slave into money. Hence, they do. not pass by the limitation over, but belong to the heirs, and personal representatives of L.urana Clark.,

The decree in the Court below is erroneous.

This is a summary proceeding, by petition, under the “Act concerning filial portions, legacies and distributive *314shares of intestates’ estates.” Rev. Slat. ch. 64, sec. 5. The case made up docs not fall within the provisions of that act, and the proceeding must therefore be dismissed. The'act was intended to provide a short and plain remedy (as was supposed) for certain cases. The words used are very general, but the rules of construction require, that they should be restricted to cases, in which there exists the relation between the parties, contemplated by the Legislature, as that of guardian and ward, executors and administrators and creditors of the estate, or legatees and distributees.

It has never been held, that the act extends to the case of a debt merely, where the only relation is that of creditor and debtor, or to a case, where an action ex delicio would lie, as if property be given to one for life with a limitation over, the executor assents, the first taker dies, and his personal representative detains or converts the property, the person entitled under the limitation must bring detinue or 1 rover, and cannot proceed by petition. The contemplated relation does not exist.

In the present case, there is a trust fund arising from the sale of land and other property, which was given to Lurana Clark and her heirs, with a limitation over to the petitioners, if she died without heirs. The event has happened, and the administrator of the first taker has the fund in his possession, and the petitioners seek to invest him with.the character of a trustee for them, when no such fiduciary relation has ever been constituted.

• The legal title to the fund was vested in the executor, in trust for Lurana Clark, and upon a contingency in trust for the petitioners. Their remedy is in Equity. The executor will be a necessary party to enable them to follow the fund in the hands of the administrator of the first taker, who has it in possession.

Per Curiam.

Ordered to bo certified accordingly.