the beginning of equity jurisdiction there was always a limitation of suit in that court." But it is useless to multiply authorities upon a doctrine that is so well established as to have become elementary, and we have only to say that a case more proper for its application than the one in hand can scarcely be conceived. For nearly nineteen years the appellee slept on his rights, nor does he allege in his petition that he was not during all that time perfectly cognizant of every fact set forth in that petition. It is only after all these years, and after Glasz's power to defend his estate has been effectually destroyed by death, that he comes into a court of equitable jurisdiction to ask its help to enable him to seize upon property to which he has no conscionable right, and from which he could have been completely shut out had it not been for the negligence of the auditor. These circumstances give to the claim of the appellee a very suspicious appearance; too much so, indeed, to permit a chancellor to move in the execution of a claim so stale, and this the more so as there has been no attempt to account for this unreasonable delay. The decree of the orphans' court is now reversed and set aside at the costs of the appellee, and the original report of the auditor is now confirmed. The appeal of the German Roman Catholic St. Vincent's Orphan Asylum of Philadelphia and vicinity is quashed. TRUST GIFT INTER VIVOS APPEAL OF DICKERSON. February 7, 1887. - TESTAMENT - PERSONAL ESTATE-WIDOW-POST On In the year 1856 A., who was a widower, commenced carrying out a plan he had conceived of establishing a fund for the benefit of C., D., E. and F., his children, by setting apart, from time to time, sums of money for the purpose. In course of time the fund set apart was in a measure made up of ten $1,000 Lehigh Coal and Navigation Company bonds, payable to bearer, with the right to have them registered and made transferable on the books of the company; bonds of the Philadelphia and Reading Railroad Company at the face value of $5,000; and twenty-seven shares of Farmers and Mechanics' Bank stock. June 3, 1870, A. executed two assignments of the Lehigh company bonds, one for five of them to himself as trustee for C., and the other for the remaining five to himself as trustee for D., which assignments were delivered to the company as evidence of the respective interests of C. and D. in the bonds; he at the same time registered on the books of the company in his own name as trustee for C. and D.; he also indorsed on the bonds, and had it approved by the corporation, that they had been duly transferred and assigned on the books to him as trustee for C. and D.; he then placed each lot in a separate envelope, on one of which he indorsed, in substance, that the bonds therein belonged to C. and had been purchased for him from a fund created by the savings of small sums from the day of his birth, and had been set apart for his special benefit; he also made a similar indorsement for D. upon the other envelope. He in like manner set apart the Philadelphia and Reading company bonds for E., and he deposited with the Farmers and Mechanics' Bank the certificates for the twenty-seven shares of its stock, together with the declaration of trust that he held it as trustee for the separate use of F. for life, with power to her to appoint by will, etc., and in case of his, A.'s, death, designating G. as substitute trustee; in the same instrument he reserved the right to collect and appropriate at his own discretion and, also, the right to revoke the trust. In November, 1869, A. married a second time; he died about August, 1884, testate, leaving with other heirs a widow. After the death of A., the bonds were found as he had placed them; the owner ship of them as well as that of the bank stock was unchanged; the widow elected to take against the will, and claimed that the trusts of bonds and bank stock, having been declared in instruments testamentary in their nature, should be treated as a part of the personal estate of A., and that out of it she was entitled to one-third. Held, that as the securities were subjects of valid trusts created by A., which had continued unrevoked by will, or otherwise, they were to be treated as gifts inter vivos, and no part of the personal estate of A. at the time of his death, subject to post-mortem claims of his widow. Appeal from the decree of the orphans' court of Philadelphia county. The facts are set forth in the opinion. The following is a copy of the opinion of HANNA, P. J.: "The controversy here arises from the election of the widow to take against the will, and the effort to increase the share of the personal estate to which she is thereby entitled, by surcharging the executor with certain investments and securities, alleged to have been the property of her husband at the date of his death, but never appraised and inventoried as of his estate and, therefore, not included in the account. The account, fortified with the jurat of the accountant, is prima facie correct, and the onus is upon the party alleging its incorrectness. A surcharge is of serious moment to an accounting fiduciary, and implies dereliction of duty by omitting to answer for assets actually received, or which ought to have been received, and with the exercise of ordinary care and diligence might have been collected. The result is personal liability. But this penalty is not imposed in the first instance, except where gross negligence or fraud are manifest. The usual practice is to afford the accountant opportunity to convert unrealized assets, or collect, by suit or otherwise, property alleged to belong to the decedent, and render a future account thereof. In the present instance the executor is surcharged with alleged assets, not because of default or misconduct, but more as a matter of form than substance, in order to ascertain the shares of the distributees and without increasing the liability of the executor; and for the reason that the investments and securities, although in the possession of the accountant, as trustee for the children of testator, were his property, and to be included, together with his other personal estate, in the account. "If this be correct, it follows that the trust and settlement by testator in favor of each of his children must be declared void, the bonds and shares of stock are liable for his debts, and the widow rightfully claims a share thereof as if her husband died intestate But we have reached the opposite conclusion. The testator declared, with the greatest accuracy and minuteness, that he held the bonds and shares as trustee for his children. Actual delivery to them, which was unnecessary, alone was wanting, and nothing remained to be done by him to vest in them more completely the title and full beneficial ownership. As to the bank stock, it is conceded by the auditing judge that the trust is valid and the surcharge is refused. "But we cannot discover any distinction between this and the trust for the remaining children. The loans or bonds were assigned by testator to himself as trustee upon the books of the corporation, and so registered; the assignments were deposited with the corporation; and, in addition, he inclosed the bonds or certificates of loan in a separate envelope, upon which he indorsed that they belonged to him as trustee for his children eo nomine, and were purchased for them from a fund created by the savings of small sums of money from their birth, and set apart for their special benefit. It would be difficult to exercise greater precision and observance of form and detail than was employed by testator to indicate his gift and demonstrate the equitable ownership of his children. In the deed of trust for the shares of bank stock, it is true, he expressly reserved a power of revocation; and as to the other trusts, it may be conceded he had at any time the authority to revoke by assigning and transferring the loan, under the act of May 23, 1874, P. L. 222, although exceedingly doubtful, without the consent of the cestuis que trusts. Bayard v. The Bank, 2 P. F. S. 232; Bohlen's Estate, 25 id. 304; Lehigh Coal Co.'s Appeal, 7 Norr. 499. "But see contra, Stockton v. Lehigh Coal Co., 9 Weekly Notes, 110, cited by common pleas, No. 1. "Yet the fact remains that the testator never exercised the power of revocation nor transferred the loans upon the books of the corporation, and they remained in his name as trustee until his death, a period of nine years after the creation of the trusts. In view of these uncontroverted facts, we are unable to reach any other conclusion than that the several trusts are valid. That testator had the power to dispose of his personal property by gift, inter vivos, will not be questioned. As GIBSON, Ch. J., says in Ellmaker v. Ellmaker, 4 Watts, 91: "Who so ignorant as not to know that a husband may dispose of his chattels during the coverture without his wife's consent, and freed of every post-mortem claim by her?" "And SHARSWOOD, J., in Pringle v. Pringle, 9 P. F. S. 285, said : "But as to personal property by gift, inter vivos, his power is absolute.' "Creditors have not been prejudiced. And while the trust of the bank stock, wherein testator reserved to himself the income for life, with a power of revocation, as before stated, in view of Mackason's Appeal, 6 Wr. 330, could not be sustained as against creditors, either prior or subsequent, yet the remaining trusts, absolute assignments by testator of personal property, without either any reservation to himself of an interest therein or power of revocation, although, to say the least, assailable by existing creditors, must be held valid as against future creditors not at the time contemplated by him. Harlan v. Maglaughlin, 9 Norr. 293. "Such being the case, then with what merit can the widow urge that a fraud has been perpetrated by her husband upon her right to share in his estate, by the creation of trusts of personal property, with moneys set apart by him for his children by a prior marriage many years before her marriage with him, and which he indisputably had the power to do, the claims of creditors not being interfered with, and not only recognized by him thereafter, but undisturbed at his death and confirmed by his will? "We are clearly of the opinion that the securities and investments referred to should not be considered the property of testator at the date of his death, but of his children, the cestuis que trust. And in this we are sustained by the authorities, among which may be cited: Crawford's Appeal, 11 P. F. S. 52; Bond v. Bunting, 28 id. 210; Roberts' Appeal, 4 Norr. 84, and Malone's Estate, 13 Phila. 313; s. c., 38 Leg. Int. 303. "Our conclusion, therefore, is, that accountant is improperly surcharged. But it is argued, that it appears from the will they remained the property of testator from the fact that he thereby declares the trust upon which he held the investments, appointed his successor in the trust, prescribes its uses and purposes, and directs final disposition, and, therefore, the investments became the subject of a testamentary trust. And further as the trust cannot operate except upon property of the testator, the investments must be considered as belonging to his estate, and for which the executor is accountable. But this is a petitio principii. The point to be determined is not whether testator could rightfully declare a testamentary trust, but whether the shares of stock and loans are to be treated as his property. If not, the trusts declared as to the property of others cannot, in any event, affect the title of the actual owner. That is what the testator attempted to do, and without authority. The investments were not his individual property; although once his, the moment he assigned them to a trustee for his children they became their property, and, except in the case of the bank stock, they were also entitled to the interest and income. Testator, having parted with his ownership, could not subsequently, by will, declare a trust as to their property, any more than he could bequeath the loans and stock to his children or to a stranger. Had he done so the title of the former would not depend upon the bequest, but upon the previous assignment to their trustee. And in the event of a bequest to a stranger, not only would the title of the children be undisturbed, but had the legacy been specific, the legatee would be disappointed of his legacy. For these reasons, we think the will has no bearing upon the vital question before us. It is, however, furthermore contended that the executor and the children of the testator are concluded by the appointment of the accountant as trustee under the will, by the court of common pleas, to hold the loans upon the trusts declared in the will. But that is not material. Instead of claiming the loans absolutely, the children can elect to recognize the trusts. It is optional with them. But it does not thereby follow that the loans and shares of stock were the individual property of their father, subject to all the incidents of ownership, such as liability for his debts, commissions of the executor, etc. And this result cannot be avoided if the claim of the widow is sustained. But such violence to the intention of her husband, and injustice to his children, should not be permitted. The widow is entitled to her share, according to the intestate law, of the balance of the personal estate of her husband at the date of his death, and no more. Her interest in the real estate is not material to the present inquiry. "It remains but to add, with the concurrence of the auditing judge, that the claim for mourning goods furnished the widow is allowed. "The first three exceptions of the accountant are dismissed; those remaining, with the exceptions of the children of testator, sustained; but those of the widow, save the fifth, dismissed, and the adjudication will be corrected in the final decree, to be prepared by counsel in accordance herewith." J. H. Gendell and Harold Goodwin, for appellant. With the exceptions and assignments of error relating solely to questions of distribution, the accountants, as executors, have nothing to do, and, therefore, have no standing in this court at this time. Lex's Appeal, 1 Out. 289, and cases cited; Axtell's Appeal, 43 Leg. Int. 476. Be it observed, we do not attack these trusts as invalid inter partes, but only so far as they seek to deprive the widow of her share of her husband's estate secured to her by act of assembly. If such trusts, so declared, are valid as against the widow electing to take against her husband's will, then it needs but a stroke of any husband's pen to nullify the acts of assembly, and sweep away all his widow's rights in his personal property. The status of the widow is sui generis. She is not a creditor, and equally she is not a volunteer. She has rights in her husband's real estate of which it is not in his power to deprive her. Heineman's Appeal, 11 Norr. 95. She has rights, when electing to take against his will, in his personal estate, of which, we contend, it is equally out of his power to deprive her except by a bona fide sale or gift in his life-time, and not by the evasion of presenting himself with his own property in trust for himself for life, with all the powers of ownership, and a trust attached for some volunteer or volunteers after his death. A child, it is true, may lose all claim to a distributive share of the father's estate through advancements made to him. "The doctrine of advancements does not apply to a wife." Greiner's Appeal, 13 W. N. C. 221. A will is that which a man wills to be performed after his death; or, it is an instrument by which a person makes a disposition of his property, to take effect after his decease, and which is in its own nature ambulatory and revocable during his life. 1 Jarm. Wills, *17; 2 Bl. Com. *500; Redf. Wills, 5. For the various irregular instruments which have been held in Pennsylvania to be wills see 1 Rhone Orphans' Court Practice, 707, and following pages. In Perry v. Scott, 1 Smith, 123; Turner v. Scott, id. 126, and Scott v. Scott, 20 id. 244, which were all the same case in different forms, it was held in case of a deed of land in fee made by father to son, in consideration of love and certain services, "conveyances in no way to take effect till after his decease," that the operative words of grant being limited to take effect only after the death of the grantor, were revocable words, and the instrument was testamentary. Turner v. Scott, 1 Smith, 132-3. Again, in Frederick's Appeal, 2 id. 338-41-2, a deed to trustees of grantor's property, in consideration of $1, accepted by the trustees, but made simply for the convenience of the grantor and protection of his own interests, and held revocable as to volunteers claiming thereunder, and to be revoked by a subsequent deed or will. Yet the same deed had been sustained in Nace v. Boyer, 6 Casey, 99, when sought to be set aside by the grantor on the ground of fraud in obtaining or improvidence in making it. Rife's Appeal, 16 W. N. C. 535; Book v. Book, 8 Out. 240; Frew |