MORRIS and SMYSER, administrators of EICHELBERGER, against JAMESON.
IN ERROR.
' By an agreement under seal two brothers, T. and W., excbange'possession of farms Which it is supposed their father intends to give them respectively by his will, T. , ’throwing in a part of his own land, (fifty acres.) The father made his will, leaving to each immediately, or through the intervention of trustees, the farm he had . intended for the other, and desired T. to make assurance of the fifty acres pursuant to the agreement. W. died liying the father, who by "codicil, directs his executors to1 sell the fifty acres, and with the proceeds pay certain notes of W., on which he was indorser, ?s also a debt due from W. to T., and apply the residue to trusts in favor of W.’s children. T., after the death of the father, con- • veys the fifty acres to the trustees of W.’s children» ' The administrators of, W., under an order of the Orphans’ Court, sold the fifty acres; in a suit brought by one . of the creditors of W. against his administrators, it was held, that W. had no estate in tlie fifty acres which could be subjected to the satisfaction-of his debts.
Error to the District Court of York, in which judgment had been rendered in favor of the plaintiff, the defendant in error, on the following case stated, ill the nature of a special verdict.
*400On the 24th of March, 1821, Frederick Eichelberger was seized in fee of two farms in York comity, one in the possession of his son Thomas Eichelberger, the other in possession of his son Wil-
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liara Eichelberger. Thomas at the same time was seized in fee of one-fourth of 180 acres of land in Adams county. By articles oPagreement entered into between William and Thomas, on the *402said 24th of March, Thomas exchanged his farm in York comity, and the undivided one-fourth of the 180 acres of land in Jidams county, with William for his farm in York county; the said *403two farms in York being those as above mentioned of their father Frederick. By the same articles of agreementtitles for theexchange of the properties as aforesaid were to be executed on or before the *4041st of April next ensuing. They exchanged possession of the farms in York county.
The following provisions, devises and bequests were contained in the will of Frederick Eichelberger, dated the 18th of April, 1821, and in the codicils to that will, the first of which was dated on the 21st of April, 1821, and the second onthe 12th of April, 1823.
“I give and devise unto my son Thomas Eichelberger, and to his heirs and assigns that tenement plantation and tract of land on which my son William lived, situate in JVestmanchester township aforesaid, being about one hundred and sixty or seventy acres, adjoining lands of David Bailer, Casper LoucJes, Joseph Worley and others; and I also give unto my said son Thomas, his heirs, and assigns, a piece of the tract on which he has lived, twenty-eight acres on the north side of Carlisle Road, which has been marked and divided by consent by my son Thomas and my son William; but it is now agreed that my son Thomas is to give to my son William, five acres adjoining his strait line up the hill at the upper side, adjoining Joseph Worley!s land, and for the other ten acres my son Thomas is to pay what he may sell the whole land for, to be paid out of the- last money which is to be paid to the estate of my son *405
William’s children’s trustees as directed in-my will, and Thomas is to pay what lays on William’s place, as William is to pay what lays on Thomas’ place, that is, on William’s place, there is five hundred pounds to be paid in yearly payments, of .fifty pounds yearly payments, to my executors, for the use of my other heirs, to pay off them, and if my son William is found to be justly in debt to my son Thomas, ho is to have a.regular credit forthe said.”
“Item, as to my son William Eichelberger, I give and devise the plantation and lands whereon-my son Thomas resides, and has resided, situate in Westmanchester township aforesaid, bounded by the turnpike road. The land willed to my son Bernard’s children, and my son Charles, and other lands, according as the same has been laid off and surveyed by George W. Spangler at my instance, a piece of twenty-eight acres, being excepted out of the same for my son Thomas, as before mentioned, on the north side of Car-lisle Road; but m this I have made an alteration in the .devise, to which will there appear, and that is my will absolute, and my son Thomas Eichelberger is to give in the same way, fifty acres of land, of George Wolf, deceased’s place, near Hanover, unto Thomas Eich elberger, Jacob Eichelberger, Esq. of York, and Jacob Smyser? (son of Jacob,) and to the survivor of them, their heirs and assigns in trust, with as full power as X myself ever had, to be for the use of my said son William and his family, and when the time arrives that my gradson, Augustus Eichelberger, is or would be of the age of twenty-one years, if my son William is previously dead, then I direct said trustees, or the survivors of them, to sell and convey said plantation and other lands in fee as soon as can be done advantageously, and one-third of the price to be secured on interest for the widow; the other two-thirds to be equally divided among the children, as likewise the other third at his widow’s decease, to be considered as vested legacies to them; but if my son William lives longer than the time when said Augustus would have arrived to twenty-one, then such sale and other proceedings are to take place, at his decease, as above said and mentioned, *and there are three hundred and fifty pounds to be paid out of said plantation to my executors after my decease in yearly payments of fifty pounds a year and further all the money which my son William is'charged in my book with interest from the day of settlement, is to be paid in the same way by his trustees, and also received.”
“I, Frederick Eichelberger, do add. this as a codicil to my foregoing will, as the land given in the will to my son Thomas, is now sold to Matthias Smyser. 1 do hereby give unto my son Thomas, his heirs and assigns, all the proceeds of such sale, and the moneys therefrom in lieu of said land, and he is to pay out to my *406estate all moneys which in and by the said will, he is directed to pay to my estate, and in the same manner as stated in the will.”
“A codicil to my last will and testament. I order and direct my executors to give them the power to sell the land that my son William got of my son Thomas, near Hanover, to pay several debts which will appear. ,One note at the York Bank, for §¡420, 00, and one note of $75 00, which I am indorsor thereon, and also the money my son Thomas has against my son William, is to be paid to my son Thomas. That money that is charged by him and paid for him, and has yet to pay, and what is over and above the above mentioned debts, is to be for my son William’s family’s use as my executors may think proper, and also there are several charges against me in my son. Thomas’ book, which is to be allowed him where I have set my hand and name thereto which will appear,” &c.
William Eichelberger, died in 1833, in the life-time of his father Frederick, who died in the same year. The land.de-cribed in the codicil to the will of Frederick Eichelberger, as near Hanover, is the.one-fourth of the 180 acres before mentioned. On the 27th of October, 1827, Thomas Eichelberger executed a deed to Charles A. Morris and Jacob Smyser, for the said one-fourth, &c. in trust for the estate of William Eichelberger, deceased, (no money being paid by the grantees to the grantors.) William Eichelberger, at the time of his death, was indebted to Thomas by judgment in the Court of Common Pleas of York county, in the sum of @2800, which is the claim mentioned in the will of Frederick to be paid out of the proceeds of the sale of this land.
The defendants below had been before that time appointed administrators of William Eichelberger; and afterwards obtained an order from the Orphans’ Court of Adams county, to sell the land aforesaid, to pay the.debts of William Eichelberger, as if he had died seized of the same in fee. • In 1830, they sold the said land, which sale had been confirmed by the Orphans’ Court of Adams county, and the defendants have received part of the purchase money.
All the devisees and legatees in the will of Frederick Eichel-berger, accepted under the same.
William Eichelberger, at the time of his death, was indebted to the plaintiff below in the sum of thirteen dollars, for physic; for the recovery of which this amicable action was entered;' and the question presented was, whether the plaintiff was entitled to be paid this sum out of the proceeds of the sale of the land in the hands of the defendants, and in preference to Thomas Eichelber-
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ger, who claimed by virtue of the provisions in the will of Frederick, to be paid his judgment. The judgment of the District Court being for the plaintiff error was assigned on that judgment.
Lewis for the plaintiff in error,
.Contended that the proceeds of the sale of the land, were not assets, to which the creditors of William Eichelberger could resort, as if he had died seized of that land, but passed under the will of Frederick. The title to the fifty acres did not vest in William; but as Frederick the father furnished the consideration upon which the title of Thomas was to be transferred to William he had a right to control the disposition of it The principle prevailed, that one who took under a will, cannot take against it, but must make an election either to accept the bounty of the testator, and submit to all the provisions of the will, or disclaim it.
Evans, Gardner and Durkcc, for the defendant in error,
Argued that the principles contended for did not apply to the ease. Frederick Eichelberger, had no title to the fitly acres; his title was to the two tracts of which his. sons were in possession, and which they exchanged. By that exchange the title to the fifty acres, passed from Thomas to William„ The old man by his will, confirmed the title of the land, which was the consideration of the exchange; and directs the fifty acres to go to William’s children. They were minors, and incapable of giving consent, or making an election. By the transfer of exchange, an equity was vested in William, to which at his death his debts attached. The legal estate only was subject to the control of the father, who confirmed the transfer. The consideration for the Iraiiafer cf the fifty acres, might have failed by the refusal of the father to recognize it, but as it did not fail, the title was perfected and related back to the transfer. Nor could the equity which was vested in William, be defeated by the subsequent will of his father, so as to cut’ out the lien - of his creditors which attached at his death, and before that will.
Lewis in reply,
Denied that any title to the fifty acres was in William at his death. The effect of the exchange upon the title, dejjend'cd upon the'transfer of the title to the land by the father which was the consideration of it, and although he did vest the title in Thomas, it was coupled with a disposition of this land, which controied it, and prevented the creditors of William from acquiring any right to resort to it as a fund for the payment of their debts.
*408The opinion of the court was delivered by
OibsoN, C. J.
By an agreement under seal, two brothers,, Thomas and William, exchange possession of farms, which it is supposed their father intends to give them respectively by his will, Thomas throwing in apart of Ms own land, which, though' an undivided interest, I shall call fifty acres. In accordance with this disposition of the brothers themselves, the father makes his will, leaving to each immediately, or through the intervention of trustees, the farm he had intended for the other, and desiring Thomas to make assurance of the fifty acres pursuant to the agreement. After this, William dies living the father, who, by codicil/ directs his executors to sell the fifty acres, and with the proceeds, pay certain notes indorsed by the father, and discounted by William at the York Bank, as well as a debt due from the estate of WUliatn to Thomas; and apply the residue to the trusts in favor of William’s children. The father dead, Thomas conveys the fifty acres to the trustees of William’s children; and the administrators of William, who were the defendants below, having, procured it to be sold under an order of the Orphans’ Court, resist the claim of the plaintiff, as one of his general creditors: so that the question is, whether William had such an incipient estate in th© fifty acres as may he subjected to satisfaction of his debts; and it requires but a moment’s consideration to determine that he had not. The exchange operated in the life-time of the father, if at all, alike on all the lands embraced by it — as well on the’fifty acres, as on the parts expected to be ultimately acquired from the father — and consequently only on the possession, as all beyond that, depended on the expected confirmation of the father, without which the subject matter was one, over which the parties could have no control. Had not the father testified his assent to the exchange by giving the two farms in conformity to it, the whole would have remained’ inoperative, even had William survived him; and Thomas'might, in that event, have regained the fifty acres, of which he eotfld not be deprived without having received the stipulated consideration. The act of the father then, which was necessary .to assure this consideration to Thomas, came too late to vest a title to the fifty acres' in William, in his life-time. The entire consideration and estate having to move from the father to William, it is impossible to separate the fifty acres from the other lands included in the devise to him; and as that became lapsed by his death, no interest in any part of the lands, the whole being an expected gratuity, ever vested in him; The fallacy with which the mind perplexes itself, is, in supposing that there is an inchoate interest in the parties, binding them'in thé mean time, and wanting nothing but the confirma-*409lion of the father, supposed to have since been obtained, to mate It,by relation, complete and indefeasible; which according to Carkhuff v. Anderson, 3 Bin. 4, may be subjected to the demands of creditors. But there could be no inchoate interest in the lands still owned by the father, nor was the exchange obligatory as respects these, because the parties had not the color of an estate to be bound by it in the life-time of the father, further than regarded the immediate occupancy. If then the agreement was inoperative in the life-time of William,-as regards the lands to be acquired from the .father, how can it have been less so as regards the fifty acres, the vesting of which, by the exchange, depended on the vesting of the consideration by the will? But the exchange was in fact not ratified in all respects, the father’s testamentary disposition not being altogether in accordance with it. It was certainly ratified so far as regards the lands expected to be acquired from him, but on. condition that the fifty acres should be sold by his own executors, instead of going to the heirs of William, as an inheritance vested in him in his life-time. His right thus to dispose of it, is not to be questioned, as Thomas and the children of William have eaeh taken a benefit under the will; and so far as regards William’s creditors, he was at liberty to assent to the exchange on his own terms, or not at all. William had given no consideration for an equity, and the legal estate had not been conveyed to him.
The conveyance to the trustees vested the estate in his children paramount to any supposed interest in William himself; and the will, having disposed of it in a way whieh neither the children nor the creditors of William have a right to question, it follows that there was no estate in William to answer his debts. Whether the parties really interested will confirm the sale by accepting the purchase money under it, instead of insisting on a sale by the executors, is for them to determine: our business is to decide between the parties on the record, between whom it is clear, 'there cannot be a recovery.
Judgment of the court below reversed, and judgment here for the defendants below.