upon a bill praying exoneration from the debtor's estate, founded on the liability of the vendor upon his bond, is foreign to this discussion. Within its limited jurisdiction, the Orphans' Court is a court of equity; but it has no power in such a case to bring before it all the parties who would be affected by its decree. It could not compel the vendor to pay to the mortgagee, who is beyond the reach of its process, the moneys for which the vendor is responsible to him. Yet that payment would lie at the foundation of any decree which a court of equity would make in the premises. The exceptions are dismissed, and the report of the auditor is con firmed. Chas. H. Downing, Esq., for exceptant. [Leg. Int., Vol. 37, p. 486.] Estate of PETER FISHER, deceased. The word "children" will not be held to include "grandchildren," unless the mani fest intent of the testator shall point to that meaning. Sur exceptions to adjudication. Opinion delivered December 4, 1880, by ASHMAN, J.-The force of the adjudged cases compels us to sustain the exceptions to this adjudication. Succinctly stated, the rule is that the word "children" will not be held to include "grandchildren," unless the manifest intent of the testator shall point to that meaning. This is the English doctrine, Moor vs. Raisbeck, 12 Sim. 123, and the case of Horwitz vs. Norris, 13 Wr. 213, shows to what extent it has been adopted in Pennsylvania. The instances in which the word "children" has been held to carry the larger meaning have been those in which there were none but grandchildren to answer the description and those in which issue and children were indiscriminately named: Barnitz's Appeal, 5 Barr, 264. Even where grandchildren only were living when the will was written, they could not take if the will distinguished between children and grandchildren: Loring vs. Thomas, 2 Dr. & S. 497. Taking the present will in its entirety does it show that the testator intended to favor his grandchildren? One devise was to his daughter Mary for life and then to her children, and if she had no child to her brothers and sister. A similar devise was to his daughter Fanny except that the devise over was to her brothers and sister living at her death. The residue of the estate was to be sold and equally divided among all of testator's children. One son was dead at the date of the will, leaving issue. With the knowledge that there were living grandchildren the testator divided his remaining property among his children. He thereby excluded the former and left no room for that construction of his will, which the law undoubtedly favors, whereby none of his descendants would be disinherited. It is proper to state that the death of the son in the lifetime of the testator, was a fact which was not shown at the audit. The exceptions are sustained and the adjudication is corrected by striking out the sums awarded to the grandchildren and dividing the sums among the children of testator. C. F. Erichson, Esq., for exceptants. J. F. Lynd, Esq.. contra. [Leg. Int., Vol. 37, p. 486.] Estate of ALBERT SOLEY, deceased. The conviction of a guardian of conspiracy is sufficient ground for his removal. Sur petition, answer and proof. Opinion delivered December 4, 1880, by PENROSE, J.-That the ward's education had been neglected, so that, at the age of thirteen years, though not deficient in intelligence, he could spell only words of three or four letters, and that when, by the direction of the other guardian, he was restored to his grandfather, from whom he had been taken several years before, he was in a most filthy and repulsive condition, clearly appears from the testimony. But, irrespective of this, we think that the conviction of the respon dent of the offence of conspiracy to defraud, and of obtaining goods (whiskys valued at $2,700) under false pretences, followed by his sentence to an imprisonment which had not terminated when the testimony was taken by the examiner, shows that he is not a proper person to have charge of the moral interests of the minor. Under the act of assembly (March 29, 1832, § 12) this is a sufficient ground for his removal from the office of guardian. We therefore grant the prayer of the petition. Let a decree be prepared accordingly. H. G. Jones, Esq., for petitioner. G. W. Wollaston, Esq., for respondent. [Leg. Int., Vol. 37, p. 493.] Estate of WILLIAM HILLES, deceased. While trustees are not generally liable for the acts of each other, this rule does not apply in cases of negligence. If a will directs an investment to be made in good securities, a trustee who passively permits his colleague to make some other disposition of the property, and takes no steps to inform himself respecting it, will be held responsible. Sur exception to adjudication. Opinion delivered December 11, 1880, by ASHMAN, J.-In his Treatise on Executors, Vol. 3, p. 1822, Mr. Williams states the rule as to the liability of executors, which he seems to have adopted from Toller, p. 375, thus: Where by any act done by one executor, any part of the representative estate comes to the hands of his co-executors, the former will be answerable for the latter in the same manner as he would have been for a stranger whom he had intrusted to receive it." It is clear from the context that the conditions of this liability require on the part of the consenting executor an active participation in the transfer of the property, and not a mere passive acquiescence, unaccompanied by cause for suspicion that it will be misapplied. This rule was modified as to trustees, and it was held that a trustee might, without risk, join with his co-trustee in a receipt for money, which placed the fund within the control of the latter, while the same act, if done by him as executor, would subject him to responsibility. The reason assigned was, that trustees must act together, while executors may act separately, and that the concurrence which, in a trustee, would be an act of necessity, would be a voluntary motion in an executor, and would indicate his design to assume a share in the management of the estate. The tone of the later decisions may be seen in Walker vs. Symonds, 3 Swanst. 64, decided by Lord Eldon, and Stell's Appeal, 10 Barr, 152, where the cases are reviewed, and in Judge Story's definition of the liability of trustees: "They are responsible only for their own acts, and not for the acts of each other, unless they have made some agreement by which they have expressly agreed to be bound for each other, or they have, by their voluntary co-operation or connivance, enabled one or more to accomplish some known object in violation of the trust:" Eq. Jur., § 1280. A rule embracing a larger latitude of indulgence than this could not easily be framed. It enables an executor or a trustee to purchase immunity from risk by keeping his hands off the estate, provided only that he will not add to his inaction the sin of culpable neglect. This is the point from which this accountant's liability is to be determined. The testator directed the trustees to invest, and hold invested, the sum of $10,000 in good securities. The accountant alleged that certain securities, some of which were not legal investments, had been set apart to the trust by his co-trustee. This allegation, if true, convicted him of negligence in knowingly disregarding the testator's injunction to reserve "good securities," which, in Ihmsen's Appeal, 7 Wr. 431, seem to have been held synonymous with investments which are authorized by act of assembly. But the auditing judge found as a fact, from the evidence, that no securities had been set apart. The accountant therefore evidently failed to inform himself whether any securities had been selected, or if selected, what was their character, or whether they had been marked to the use of the trust. If he had adopted only the last precaution, the default could scarcely have occurred: Bayard vs. The Bank, 2 P. F. Smith, 232. His omission to see that an act enjoined by the testator had been performed caused the same injury which would have followed a voluntary participation in the acts of the defaulting trustee. He must, therefore, be decreed to make good the loss: Wiegand's Appeal, 4 Cas. 471; Bates vs. Underhill, 3 Redf. (N. Y.) 365; Adair vs. Bremmer, 74 N. Y. 539. See also Pa. R. R. Co.'s Appeal, 5 Norris, 80; Story's Eq. Jur., § 1283; Brise vs. Stokes, 11 Ves. 327. The exception is dismissed and the adjudication confirmed. [Leg. Int., Vol. 37, p. 512.] In re Will of MARGARET THOMPSON, deceased. Evidence of undue influence and mental incapacity sufficient to justify revocation of letters testamentary granted by register. Sur appeal from register and demand for issue. Opinion delivered December 27, 1880, by HANNA, P. J.-The proponents and executors are the son and two daughters of testatrix. The former is bequeathed and devised one-third of the entire estate absolutely, and the remaining two-thirds are devised and bequeathed unto the executors, in trust for the sole and separate use for life of the daughters, and after their decease unto their children, that shall then be living, and the issue of such of them as shall then be deceased, absolutely. Testatrix died November 8, 1879. No caveat was filed, and on November 28, 1879, the alleged last will of testatrix was offered for probate, its execution duly proved by two subscribing witnesses, one of whom appears to have been the attending physician, who testified "that they were present and did see and hear Margaret Thomp son, deceased, the testatrix, sign, seal, publish and declare the same as and for her last will and testament, and that at the doing thereof she was of sound, disposing mind, memory and understanding, to the best of their knowledge and belief." The will was accordingly admitted to probate, and letters testamentary granted to the three executors named therein. On January 8, 1880, the joint petition of the executors, and a grandson and granddaughter of testatrix, children of a deceased son, was presented to the register, setting forth that they were the only parties interested in the estate; that the will had been admitted to probate; that they were not heard, and that they can produce testimony to prove that at the time of the execution of the said will the said Margaret Thompson was not in the usual exercise of her faculties; that the excitement attending the execution of the said paper was so great as to unsettle her mind; that the will as drawn was in total disregard of and at utter variance with her expressed wishes immediately before its execution, and that the execution thereof was done under duress and undue influence exercised over the mind of the said Margaret Thompson. They therefore prayed to be allowed a rehearing, and that the letters testamentary be revoked. The petition was refused by the register, whereupon an appeal was taken to this court. On May 1, 1880, a petition was presented to the court by the grandson and granddaughter of testatrix, who are not named in her said will, praying a citation to the executors, the only legatees, to show cause why said appeal should not be sustained, and an issue awarded to determine the validity of said last will. To this an answer was filed by the executor, setting forth that he believes the mind of said testatrix immediately before the signing of the alleged last will was in an excited state, and that she, during her lifetime, repeatedly expressed her intention of taking care of and providing for her grandchildren, the contestants. "He therefore submits the matter to the pleasure of the court." The two executrices also answered that they believe and expect to be able to prove that the mind of testatrix at the time of the making of her alleged last will was in a disturbed state, and she was under undue excitement, and that undue influence and imposition was practised over her mind at and immediately before the signing of her alleged will, and that the same was not in accordance with her repeatedly expressed wishes and intentions immediately before her decease. The only testimony produced before the examiner was on behalf of the contestants, two of the witnesses being the daughters of testatrix. The executor, and who it is alleged practised the imposition and undue influence upon the mind of his mother, whereby she was in duced to execute a will disposing of her estate to the prejudice of her deceased son's children, contrary to her often expressed intentions and declarations in the very testamentary act, absented himself from the hearings before the examiner, and offered no counter testimony. From the evidence it was shown that the alleged will was executed during the last illness of decedent and nine days prior to her death. She resided with her son and his family, who had frequently been the recipients of her bounty. He is the principal legatee, his share being given to him absolutely, while those of his sisters are for life only. That testatrix entertained great affection for her son George, who had died, leaving two children, and frequently declared that they should receive their father's share. That the will was prepared, but not at the dictation of testatrix, she merely stating that she had three children and two grandchildren, and, as averred by one of the witnesses, a daughter, she gave no directions whatever, "only that she wanted the children all to be satisfied, and not to forget Tommy and Maggie." The will was written in an adjoining room to that occupied by decedent, and, before she signed the paper, its contents were but partly read to her. That, at the time, she was greatly excited and nervous, by reason of the violent actions, threats and profanity of her son, who, when she named her grandchildren before her will was drawn by the counsel employed, became excited, and said, "if she involved us by leaving them anything, that he would not have anything to do with it, and used profane language." It also appeared that a short time before the will was executed, he, by persuasion, argument and artifice, endeavored to induce his mother not to bequeath any portion of her estate to her grandchildren, and, by misrepresentation, to poison her mind against them, and destroy the affection for them she always displayed. Another witness testified that when, preparatory to preparing the will, counsel inquired of testatrix what children she had, she commenced naming her children and grandchildren, and when she mentioned the latter, her son said in an excited manner: "My God, mother, if you give them anything, you will have to give clear property, and that would involve the children; if you are going to leave them anything, you can leave me out entirely, for I won't have anything to do with it" and she became very much excited. Mr. Fox then warned him off with his hand, and he left the room in a very excited manner and state. All the facts presented by the evidence show that the provisions of the paper executed by testatrix are contrary to her frequently expressed intention relative to the final disposition of her estate, and as indicated by her at the moment of time the will was prepared. Nor was the entire will, after it had been written, read over to testatrix at any time, either before or after its execution, so that she had no opportunity of correcting it, even if she had been either physically or mentally capable after the violent and turbulent conduct of her son. He now makes no answer to the allegations of the contestants. And presents no counter testimony in support of the will, although, should it be revoked, his share of the estate will be reduced from one-third to one-fourth part. In view of all the testimony, we are led to conclude that the paper admitted to probate was not the last will and testament of testatrix. An issue has been demanded by contestants; but as no question is in dispute, no fact alleged on the one side and denied on the other, we see no |