ing which would interfere with this principle, would have a tendency to defeat the policy of the law.

By the constitution itself, the Court of Common Pleas is vested with the "jurisdiction of all probate and testamentary matters, granting administration, the appointment of guardians," &c. Art 3, Sec. 5. Every legislative provision which is necessary, has been made for the settlement of estates. The rights of creditors, as well as all others interested, are well secured. The first section of the act defining the duties of executors and administrators," (22 Statute Laws, 125.) prescribes the duty of the Court of Common Pleas, in the appointment of administrators, where any resident of the state may die intestate. If the wid ow or next of kin will not accept the trust, then any creditor of the intestate, who will apply, may be appointed. Provision is made in the same law, direct. ing the course to be pursued, should a will subsequently be discovered and prov ed in court. From such time, the powers of the administrator must cease, but his acts previously performed, are obligatory. The 24th section of the same act provides for the appointment of administrators, upon the estates of such per. sons as shall die leaving property real or personal within the state, such person not having been a resident of the state. And further, that the same "rules and regulations" shall govern as in other cases.

Pursuing the provisions of this law, the complainant has complete and ade. quate remedy. He is a "creditor," and, if no other person will do it, may take letters of administration. His interest would be as well secured, by adopt. ing the course prescribed by this statute, as it would be, were the court to sustain the present bill. Should the bill be sustained, the court would give the complainant no advantage over the other creditors, but would see that the avails of the property was distributed among them, in proportion to their several de. mands. In making a distribution, we should look to, and be governed by, the general law for the settlement of estates.

It has been urged in this case, that the decedent left a will, of course, that it would be improper to apply for letters of administration. This circumstance, however, can be no objection. Unless the will is produced, the Court of Com. mon Pleas of the county where the lands lie, has an undoubted right, and is, upon application, bound to grant letters of administration. If the will be produced, then letters may be granted with the will annexed. In either event, the complainant secures his object, of subjecting the lands to the payment of debts.

It is further urged, that the complainant being a creditor, although he might take letters of administration, still is not bound to do it. True, he is not. The law will not compel him to assume the trust. But when that law has provided a "plain and direct" remedy, this Court will not interfere, to give the complainant a different one, merely to gratify his caprice. He may either accept the remedy prescribed, or abandon his claim.

If there were no remedy at law, this Court would not hesitate to take jurisdiction, but inasmuch as there is, the bill must be dismissed with costs.

STEELE v. LOWRY, ET AL.

Where a deed of trust is executed by the grantor and recorded, and the grantee agrees to accept the trust, there is a sufficient delivery of the deed.

Where a deed of trust conveys property to be held by the trustee and disposed of, as the grantor shall direct, for the benefit of the issue of a contemplated marriage, the property thus conveyed enures to the benefit of such issue, though the grantor die, without directing a sale.

If an administrator take goods on replevin as the property of his intestate, from the possession of a person who is not the owner, and on the trial judgment is rendered against him, equity will decree an assignment of the judgment for the use of the real owner of the goods.

This was a bill in chancery, sent here for decision from Montgomery county. The principal object of the suit was, to obtain the legal construction of a deed of trust, made by Sophia Lowry, deceased, of whom the defendant, Lowe, was administrator, and the other defendants her late husband, and her children by him, and by a former marriage. So much of this deed, as is material to a right understanding of the points decided, is as follows:

"This indenture, made the fourth day of January, 1822, between Sophia Cooper and James Steele," &c. The indenture, after reciting that Mrs. C. had property, goods, &c. that came to her from Mrs. Z. and a former husband, and that a marriage was intended between her and one Fielding Lowry, witnesses, that she "gives and grants all her goods, rights, credits, &c. in trust, that the said James Steele, shall dispose of the same, whenever, in the opinion of the said Sophia, declared in writing, a reasonable price can be obtained for the same, and shall vest the proceeds in the purchase of lands within the state of Ohio, to be conveyed in fee simple, to the child or children of her, the said So. phia, to be by him, Lowry, begotten, share and share alike; and in case the said Sophia shall die without issue, then to the heirs of the said Sophia in fee. And in further trust, that the said Steele shall permit the said Sophia to have use and occupy the said goods until, in the opinion of said Sophia, a reasonable price can be had for the same."

The bill states, that the marriage took place, and issue was born living to wit. Fielding Lowry, jr. Mrs. Lowry died in May, 1825, without any declaration and having in possession the personal property specified in the deed. The de. fendant, Lowe, was appointed her administrator, and took an inventory of the goods, &c. found in possession of Lowry the elder, who declined to deliver pos. session to Lowe. Lowe, who considered the property assets to which he was cntitled, prosecuted a writ of replevin, and judgment was rendered against him, in favor of Lowry, sen. for the sum of one thousand four hundred and thirty. six dollars thirty-one cents. The bill claims that the administrator shall pay the debts of Mrs. Lowry, and prays that the residue may be paid to the com. plainant, for the benefit of her heirs general, and an injunction to prevent the collection of the judgment recovered by Lowry, sen. against Lowe.

The answer of F. Lowry, sen. denies that the trust deed was ever delivered to the complainant, but states that it was left in the hands of the defendant, and there remained until the death of his wife. He claims the property in his

own right, as having been reduced to his possession during coverture, or in right of his infant son, issue of the marriage. The answer of P. P. Lowe, the administrator, admits the principal allegations in the bill, and wishes the business amicably settled. There are interrogatories filed which do not materially vary the above facts. The infants answer by guardian. The testimony of Henry Bacon, who drew the trust deed, shows that the facts were known to Lowry, sen. who advised the course. Steele was not present when the deed was executed by Mrs. C., but had been consulted, and agreed to be trustee. The deeds were exccuted, and directed by the grantor to be put on record, and delivered to the complainant.

Upon this state of the case, three different claims were set up to the personal property enumerated in the deed of trust.

First: F. Lowry, sen. the husband, claimed, that the deed was inoperative, and the property vested in him, by possession in right of his wife.

Second: F. Lowry, jr., claimed, that the entire interest was secured to him, unless the proceeds were necessary for the payment of debts.

Third: For the children of Cooper it was claimed, that the trust enured for the benefit of the heirs general of the grantor.

The administrator also claimed, that the proceeds should be applied to the payment of the debts of the grantor, his intestate, whether incurred before or after her marriage.

Stoddart, Collet, and Corwin for complainant. Crane, contra.

By the COURT.

It is said, that delivery is either actual, by doing something and saying no. thing, or verbally, by saying something and doing nothing: or it may be, by both. So a deed may be delivered by him who makes it, or by any person of his appointment or authority precedent, or assent, or agreement subsequent. Shep. Tou. 55. A deed delivered in trust, for the grantee, is sufficient. 2 Mass. R. 449. If a deed is read and not formally delivered, but left in the same place, this is a delivery in law. Crok. Eliz. 6 Co. Lit. 360. Here the grantee had consented to accept the trust, and the grantor with the knowledge, consent, and approbation of her intended husband, executed the deed, and di rected it to be recorded and delivered. The testimony leaves no doubt of the delivery according to the strictest formalities of the common law. 1 J. C. R. 250.

This deed passed the entire estate to the trustee, for the benefit of the issue of the intended marriage, and for want of issue, then to their heirs general of the grantor, reserving the use of the personal property, and a discretion in the donor, as to the time of the sale of the estate. The reservation of power was to direct the sale, whenever, in her opinion, a reasonable price could he ob. tained. The terms of the reservation would probably embrace the whole estate, both real and personal. The principal object was to turn the personal into real estate, for the proceeds were to be invested in lands in this state.This discretion was a mere division of the trusts for the more effectual security of the issue. Where there is a clear intention, that a person shall take, and

the mode only is left to the party, that is a trust, which shall never fail by nonexecution, or inability of the trustce to exercise it. Brown v. Higgs, 5 Ves.

495.

It would be most unreasonable, that the cestui que use should lose the whole cstate, because the discretion of directing the time of sale was prevented by the death of the trustce. If the principle should Le admitted, that there was a resulting trust, Ly the non appointment of the grantor, the effect would be a dis. tribution of the estate among the heirs general of Sophia Lowry, expressly contrary to her intention. She has declared, in her deed, this distribution shall not take place, unless she should die without further issue.

The case of Cook v. Brooking, (2 Ves. 51.) was very much like the onc un der consideration. Mallock devised fifteen hundred pounds to S. and J. Snow, to be disposed of upon secret trust, revealed to S. Snow, who declared in writing, they should, of the profits, maintain the testator's daughter, Anne, then married and in case she should survive her husband, she was to have the whole sum; but, in case she died in the lifetime of her husband, then the fifteen hun. dred pounds were to go to his daughter L. in such shares and proportions as Anne should advise. Anne died in the lifetime of her husband, and made no appointment.

The court held, that this was not a resulting trust, and distributed the money amongst the children of L. per stirpes. Whether we consult the obvious inten. tion of the donor, or the principles of law applicable to the case, the result is the same, that here is no resulting trust to the heirs of Sophia Lowry, in conse. quence of her death without declaring her opinion, that the time had arrived when a reasonable price could be obtained for the property, secured to the issue of the marriage. The complainant, therefore, as cestui que trust for the infant defendant, F. Lowry, jr. is entitled to the property, or its value, either from Lowry the elder, or the person who has obtained the possession of it from him.

But it appears from the pleadings, that the defendant, Lowe, as administrator of the estate of Sophia Lowry, prosecuted an action of replevin against F. Lowry, sen. for the personal property mentioned in the decd of trust, and that, having failed to establish his right, judgment has been rendered against him for the sum of one thousand four hundred and thirty-six dollars and thirty-one cents, the value found by a jury under the provision of the statute. perty belonged to neither of the partics to the suit, and yet the defendant has obtained a judgment for its full value.

The pro

The law has either transferred that property to the plaintiff, which clearly docs not belong to him, or there is a penalty at least to its full value for com. mencing a groundless action. This is a view of the statute not very favorable to its provisions, as a substitute for the writs, de retorno habendo and of wither. nam. It is fortunately, perhaps, not now necessary to consider whether Lowe would be also answerable to the trustee for the property, or its value, in case he elected to bring an action at law upon the tortoins possession of the administrator. The court thinks, that without violating any principle of equity, the judgment in favor of Lowry the elder, can be taken as a trust fund for his infant This is upon the grounds that the judgment is more beneficial to the infant, than the goods in specie. Lowe cannot be aided in this court. This has

son.

already been determined in the case of Lowe, Adm'r. v. F. Lowry, sen. et. al. The proceedings in replevin, have transferred to him the possession of the property, and charged him with the judgment. He must abide by this bitter law. But as that judgment is the proceeds of the infant's property, and as neither the plaintiff nor the defendant in the action, had a shadow of legal right, equity requires that Lowry, sen. should transfer it to the cestui que trust, to be applied according to the declared intentention of Sephia Lowry. The court decree, that F. Lowry, sen. assign the judgment recovered in the action of replevin against P. P. Lowe, except the costs, to the complainant, who is to collect the same in the name of Lowry, who is perpetually enjoined from interfering with the collection thereof, or from discharging or releasing the same, or the pro ceeds thereof. And, as to the other defendants, the bill is to be dismissed.And it is further ordered and decreed, that the costs of this suit be paid out of the proceeds of the judgment, and the residue to be retained by the complainant, for the further direction of this court.

LOWE v. LOWRY, ET AL.

Personal property cannot be made the subject matter of a bill of peace unless the right at law has been established.

Where a party prosecutes a groundless action of replevin equity will not relieve him from the legal consequences,

This was a bill in chancery, which was adjourned here for decision from Montgomery county, in connection with the preceding cause, between the same parties. The facts necessary to state, for a clear understanding of the decision of the court, are these:

In the month of January, 1822, Sophia Cooper, widow and relict of Daniel C. Cooper, dec. being possessed of considerable personal property, and some real estate, both in her own right, and as dower in her late husband's estate, being also the mother of two children, sons of herself and D. C. Cooper, dec. in con. templation of a marriage with the defendant, Fielding Lowry, made a convey. ance in trust, of her principal property, real and personal, to the defendant Steele, to hold the same for her own use, during her contemplated coverture, and for any issue that might spring from it, reserving a power in herself, at any time, to direct the trustee in making certain dispositions of the property.— The marriage took place, and there was issue of it, one son, the defendant, Fielding Lowry, jr. The property remained in the possession of Mr. and Mrs. Lowry, and was considered subject to the trust, until her death in 1825. had contracted some debts during her widowhood, which remained unpaid.Some debts arose during her marriage with Lowry, in improving her real es tate, and the expenses of her last sickness and funeral were to be paid. The plaintiff Lowe, at the request of the defendant Lowry, took letters of adminis. tration to Mrs. Lowry, and under these, he claimed form Lowry, in whose possession they remained, the personalties included in the deed of trust. Lowry refused to deliver them, upon which Lowe, having had them appraised, brought a replevin against Lowry, and thus obtained the possession. On the trial of the

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