Markley's Estate. main after her death. The language of the will indicates such an intent, and all mere technical rules of construction must give way to the plainly expressed intention of the testator, if lawful: Reck's Appeal, 78 Penna. St. R., 435. All the surrounding circumstances of the testator, his family, the amount and character of his property, may and ought to be taken into consideration in giving a construction to the provisions of the will: Postlethwaite's Appeal, 68 Penna. St. R., 479. The testator provided first for his widow. She was the object of his bounty. He gives her all his property and effects of whatsoever nature and kind-not merely the income of the property. No provision of any kind is made for the other legatees, to take effect during her life. The personalty consisted in great part of crops, stock on the farm, and farming implements. These she took under the will, just as the testator left them at his death, and they were of such a character that their use, even for a limited period, constituted consumption. The estate was not large, and the testator in his care for her as the first object of his bounty no doubt considered the income insufficient for her comfortable support. The fact is that it was not sufficient, for during the many years that she survived the testator it was found necessary to consume almost the entire personal estate for her proper maintenance. The word "residue," as used by the testator, implies the right of consumption of the principal by the widow. The word received this construction in Jauretche vs. Proctor, 48 Penna. St. R., 471. In that case the will provided "at the death of my above named wife what I may have left her; that is to say, the residue is to be divided in equal shares among my children." The court said: "This word residue, as used in this place, does not imply a residuum of estate or interest like a remainder, but a residuum of the property; or, as in the testator's own language, of 'what I may have left her,' and in this sense is exactly equivalent to 'surplus,' a word which was fully considered and expounded in Pennock's Estate, 8 Har., 282." So in the Reformed Church vs. Disbrow, 52 Penna. St. R., 224, it was held that "the words 'any part remaining' were equivalent to the word 'residue,' and imply that part of the interest devised might be so used and converted as not to be in existence at her death." The word "residue," as used and connected by the testator, has the same meaning as the words "surplus," "remaining personal Markley's Estate. property," "if any left," "any part remaining," "what shall be left," when used in similar bequests: Jauretche vs. Proctor, supra; Pennock's Estate, 20 Penna. St. R., 268; Staub's Appeal, 1 Id., 86; Hambright's Appeal, 2 Grant, 320; Reformed Church vs. Disbrow, supra; Folweiler's Appeal, 102 Penna. St. R., 581. If then the word "residue" is the equivalent of the foregoing words or phrases, the testator's widow under the bequest to her clearly had the right to more than the income of the personalty. She could consume of the principal without any liability to the executor or the other legatees under the will. The case before us is ruled by Staub's Appeal, supra. The will provided: "I give and bequeath to my beloved wife all my real and personal estate of whatever nature the same may be, to be held by her during her natural life; and my said wife shall out of the same keep and provide for my son Valentine. And it is further my will that after the death or decease of my beloved wife all my real estate * * * and all my remaining personal property, of whatsoever nature the same may be, shall be sold by my executors; and for that purpose I do give and bequeath all my said real and personal estate to my executors." He then directed his executors to divide the money so arising from his real and personal estate, after his wife's death, among his children. Exceptions were filed to the executor's account because he had paid to the widow $1,806 without taking security for the delivery to the legatees in remainder. The court say: "And as to the objection that the money ought not to have been paid to her by the accountant without her first giving to the legatees or to the accountant for them good security that it should be paid to them immediately after her death, we are clearly of opinion that it has not been and can not be maintained. It is not the interest merely of the money forming any part of the testator's personal estate, or the bare use of it in kind, that is given to her by the will during her natural life, but the whole of testator's personal property itself, whether consisting of money or anything else, is thereby given to her during her natural life; and it is only what shall remain of it after her death that is limited over, to be divided by the executor among the testator's children. Thus showing plainly that the testator intended his widow should have the whole of his personal estate, and that she might use the principal as well as the interest of it without restriction, if she should think Markley's Estate. proper, during her natural life; and that whatever remained, be it much or little, should go afterwards to his children." Every word of this reasoning may be applied with equal force to the will before us. He gives all his property and effects, real, personal and mixed, of whatsoever nature and kind, to his wife, and at her death “all the residue of said property" shall go to his children; not the residue of his estate, but the residue of the property which he gave to his wife for life; not a residuum of estate or interest like a remainder, but, in the language of the Jauretche will, the residue of "what I may have left her." Again in Folweiler's Appeal, supra, the language of the will was as follows: "Further, I give and bequeath all the rest, residue and remainder of my goods, chattels, debts, ready money, effects, and other my estate whatsoever and wheresoever, both real and personal, every part and parcel thereof, unto my wife Mary to keep and enjoy during her life-time, and after her death what shall be left shall be divided equally, my heirs and her heirs, share and share alike." The court say: "If there were any personalty the appellant would take it absolutely." If "residue" means "what shall be left," this case is also in point. It is difficult to draw a distinction between the language of the testator, "all the residue of said property," and the language in the Folweiler will, "what shall be left." The learned auditor concludes that Folweiler's Appeal is overruled by Hinkle's Appeal, 116 Penna. St. R., 49c; otherwise he would have followed the former. No intimation of any such intent is given in Hinkle's Appeal. If we are to give that effect to the latter case, it not only overrules a single case but a line of decisions followed in Folweiler's Appeal. The point raised in the case at bar is not discussed by the court in Hinkle's Appeal. The court in that case discussed but two questions: whether the life estate of Dr. Hinkle was enlarged to a fee, either by reason of the direction to pay out legacies or by reason of the power of sale attached to the life estate. And now, April 15, 1889, the first, second and third exceptions to the auditor's report is sustained, and the report is referred back to the auditor to ascertain what balance, if any, is in the hands of the accountant for distribution, and to make distribution if any such balance is found under the foregoing opinion of the court. ESTATE OF PETER FESMIRE, Dec'd. Where executors file a joint account showing a balance in their hands, and such account is confirmed, they are jointly liable for the safe keeping of such balance. Where such balance is invested by them in pursuance of a trust created under the will to be executed by them, there is prima facie a continuing joint liability; but subsequent equitable circumstances may exist which are sufficient to relieve from such joint liability. Where three executors in the execution of a trust invest trust funds in a mortgage in their joint names, one can not effectually satisfy such mortgage without the assent of the others. EXCEPTIONS to report of W. F. Dannehower, Esq., auditor. T. W. Bean and W. Horace Hepburn, Esqs., for exceptions. Charles Hunsicker and James H. Shakespeare, Esqs., contra. The facts sufficiently appear in the opinion of the court filed June 3, 1889, by SWARTZ, P. J. The auditor exercised great care in his finding of facts. We do not understand that the correctness of these findings is questioned. The accountants contend that there is error in the audit or's application of the law to the facts. The testator died in 1873. He appointed his friend Josiah Kerper, his son Peter Fesmire and his son-in-law Ephraim Magargal the executors of his will. The executors converted the assets into cash and filed their joint account, which was duly confirmed in 1875. By the will the executors were to invest in good real estate securities one-third of the estate, pay the income thereof to the widow for life, and at her death the principal to the children. By the distribution annexed to this account $7,306.12 of the balance admitted to be in their hands was set apart "to be retained by the executors and invested by them for the benefit of the widow." At the time of the distribution Magargal retained the custody of this trust fund. He afterwards gave Mr. Chain, who was counsel for the executors, a check for $4,000. This money was invested in the Quillman mortgage by an assignment of the same from Benjamin Brown to "Josiah Kerper, Peter 'Fesmire and Ephraim Magargal, executors of the last will and testament of Peter Fesmire, dec'd." He also gave Mr. Chain a check for $2,500, which was invested in like manner in the Shannon mortgage. The balance of the trust fund Mr. Magargal paid over to his Fesmire's Estate. co-trustee, Mr. Kerper, who invested the money ($806.12) in a mortgage executed by Charles W. Sawyer to the trustees, describing them as in the other mortgages. For twenty years the testator entrusted all his financial transactions to Mr. Kerper. At testator's death $7,000 of his moneys were in Kerper's hands. Kerper was trusted by every one who knew him, and up to January, 1886, possessed a large amount of property. He was reputed to be worth from $50,000 to $60,000. In 1883 Kerper obtained the money on the $4,000 mortgage, but failed to account for it. Are the accountants liable for the default of their co-trustee under the facts found by the auditor? The Quillman mortgage was a first-class investment. It stood in the names of the three executors. Mr. Kerper was entrusted with the custody of the mortgage. This was proper, because by the appointment of Kerper the testator recommended him to the confidence of the son and son-in-law. He was the trusted adviser of the father, and a man of reputed means and business experience. He lived near the widow, where the income was payable. There could be no divided custody of the paper; only one of the three could have the actual possession. As was said in Lightcap's Appeal, 95 Penna. St. R., 458: "In trusting him the assets were surely not culpably and negligently parted with." See also Jones' Appeal, 8 W. & S., 151. We can not agree that their liability was conclusively established by reason of the original joint account in which they admitted the balance was in their hands. "It by no means follows that such joint liability is a continuing obligation, which remains fixed and established as a judicial decree and without regard to subsequent circumstances": Young's Appeal, 99 Penna. St. R., 84. By this account they admitted that they had in hand the fund for investment; they are prima facie liable for its safe keeping. After the original accounting they entered upon the duties of the trust and made the investment as directed by the will. Are these subsequent equitable circumstances such as to discharge them from this prima facie liability? Kerper called upon his co-trustees with a paper which he asked them to execute. He stated to Mr. Magargal that the mortgagor sold the property and wanted to pay off the mortgage; that the same man would give another mortgage on other property. He stated to Mr. Fesmire that the mortgage was to be paid off and the |