In re the guardianship of Jennings

Foster, Vice-Ordinary.

This appeal brings up for review an order of Judge Stickel requiring the appellant as- guardian of her son Albert E. JenT nings and her two other children, to account for the income received by her from the Fidelity Trust Company as trustee under the will of Marion A. Jennings, deceased.

Marion A. Jennings was tire mother of William II. Jennings, who enjoyed the income of a trust fund created by her will, until his death in 19If. The appellant, Ellen A. Jennings, is the widow'of William II. Jennings and the mother of the three minor children,

Clause 12 (/.) of the will of Marion A. Jennings reads as follows:

“(f.) At the cleait-b of my said son William H. Jennings to' pay all the rest a-nd remainder of the Income from the .tenth clause 'of this my wfffi, in equal shares to each of the three children of my said son William H. Jennings, to wi't, Albert E. Jennings1, William. H. Jennings third and Marion *489 A. Jennings, ran,til eacBx of tibe said oJidldren. sbaül iieacib tibe age of twemltyone (21) years respectively, tibe said moneys to be ¡paid1, orev'ertbeiess, noit to tibe «Said dhdldren font to, tibe widow of tibe said WSMaim H. J enndngs, or sucib oitiber legal guiardiian, as tihey may 'have, for ttibeir benefit.”

On the death of William H. Jennings his widow applied to the trustee for the payment of the income directly to her as his widow, hnt the trustee, because of the words “other legal guardian” in the clause quoted, considered it advisable for the widow to be appointed guardian of the children, and this was done, and petitioner, a surety company, became the surety on her bond and began these proceedings as such surety to compel her to account for the annual income, amounting to- between $3,000 and $4,000, which she has received since her appointment.

Appellant insists she is not obliged to account, as she claims under this clause of the will to be entitled to the income as widow and not as guardian, and she further claims that although the income was paid to her as guardian a receipt therefor from herself as widow to herself as guardian is all the accounting she is obliged to malee.

Appellant contends her position is supported by the case of Macknet v. Macknet, 27 N. J. Eq. 594, and later cases in which that case has been followed. In the Macknet Case there was, as Mr. Justice Reed, in delivering the opinion of the court of errors and appeals, stated, a direct gift of the income to the mother for the support, maintenance and education of her child, and, after a review of the cases, he stated that the facts of that case were within a line of eases which establish the doctrine that where property is given to a parent, or one standing in laca parentis, with direction, to educate or maintain their children upon the fulfillment of toe trust, no account can he demanded, and he added that whatever the origin of the doctrine;, it has resulted' in placing such dispositions of property among a class of bequests which are considered as gifts to the first taker, coupled with a duty.

The facts in the present case differ from the facts in all the cases cited on behalf of the appellant in several important particulars, notably, that the bequest is made to the children and that there is not a direct gift of toe income to appellant either *490 personally or as the widow of William IT. Jennings, or as the mother of the infants, and in the further fact that the income is not given to her in any capacity coupled with any duty to the infants. The will directs the income to’be paid in equal -shares to each of the three children until each attains twenty-one years, respectively, and it further directs "the moneys to be paid, nevertheless, not to the said children hut to the widow of the said William H. Jennings* or such other legal guardian as they may have, for their benefit.”

These provisions do- not constitute a bequest to- Mrs. Jerinings of the income, with or1 with out a duty to the children, and there is not the slightest indication in any of the provisions of the will to- show tha-t testatrix intended that Mrs. Jennings should personally have any beneficial interest in this income.

The fact that having made a bequest of the income directly to the children, testatrix in connection therewith directed the payment of the income to their mother, or other legal guardian for their benefit, does not, as claimed, change the nature of the bequest or the beneficiaries of the gift, and does not take- from the children’their bequest and give it to their mother coupled with some undefined dutjr toward them.

The direction for the payment of the money to appellant as the widow of William H. Jennings is not indicative of the capacity in which .she was to- receive the income, hut is merely descriptive of one of the persons to who-m the income was to be paid, as guardian of the children, and in ease she- had not qualified as the legal guardian of the children, then, the wall in terms and effect directs that no part of the income is to be paid to her, but that it is to be paid to- such other legal guardian as the children may have.

I will advise that the order of the orphans court be affirmed.