Opinion by
The defense set up in the affidavits was clearly untenable. Catharine Good by will gave to appellants “ all the rest and residue of my (her) estate,” but she had no estate in the land concerned here, which could pass by that language. Under the will of Jonas Good his widow Catharine had a life estate in the land, with a contingent power tо revoke the testator’s devise over of the remainder, in case the devisees or any of them “should not bе obedient to her during her natural life. ” Conceding that she was entitled to determine whether the contingency had happened, yet the mere possession of the contingent power did not in any way enlarge her estatе. It was a power in derogation of the testator’s primary intent, and nothing less than an affirmative decision and dеclaration on her part that the contingency had happened, would be sufficient to revoke and dеfeat his express gift. There was no such decision or declaration here. The gift of Catharine to the appellants was of the “ residue ” in the most general terms, which could be fully satisfied by the personal or other prоperty that could be fairly called her own, without resort to that of the testator over which she had only a рower of appointment. Had she determined the happening of the contingency in her lifetime and then undеrtaken to convey or devise in fee, an entirely different question would be presented.
The title set up by aрpellants under the will of Catharine Good cannot be aided by the Act of J une 4,1879, P. L. 88. The powers of appоintment covered by that act are unrestricted, or
Appellants therefore took no estate in the land under the will of Catharine Goоd, and what they took under the will of Jonas Good was a remainder in fee after the widow’s life estate, chargеd with one half the valuation put upon it by the testator, in favor of the plaintiff individually.
But it did not follow that plaintiff was entitled to judgment. He brought suit as administrator d. b. n. c. t. a. and as such he had no right of action unless the money was required for pаyment of the testator’s debts. His statement contained no such averment. The land was devised to appellаnts charged with specific legacies to parties named. Prima facie the administrator had no conсern either with the land or the charge.
The testator had been dead more than eighteen years, and the presumption was that there were no debts of his which were now a lien on this land, or collectible out of the legacies charged on it. An averment and affirmative proof of the existence of such debts, for which the рlaintiff as administrator is responsible, was a necessary part of his right of action, and in default
Appellee has filed in this court an averment that Jоhn B. Garman, administrator and John B. Garman, legatee of one half the charge on the land, are the same рerson, and asks that if the court be of opinion that he is not entitled to recover the whole charge as purchase money of the property, the judgment be affirmed upon condition that he shall remit one half оf the amount ascertained to be due after payment of the debts, if any, appearing upon his final account as administrator. But this cannot be done. Rights of action in different capacities, even though in the same individual, cannot be mixed and interchanged in this way. As already said the plaintiff cannot maintain this action without showing thе existence of debts. The law will not compel appellants to pay the administrator to enable- him tо settle debts which are presumed not to exist. Nor can the action be changed to one by plaintiff as legatee, for his half of the charge. A change of parties which involves a change of the cause of action is not within the ordinary province of amendments. And if a claim is made upon them in that form, defendants are entitled to regular summons and opportunity to be heard in a separate suit upon it.
Judgment reversed and procedendo awarded.