The question seems to be settled, by the decisions of this court, that the orphans’ court, upon the petition or application of a legatee, can award payment of a legacy to be made by an executor, although the estate be not in a condition to admit of a final settlement, if according to the terms of the will, the legacy be then payable. 8 Ala. Rep. 497. Relying on the authority of this case, I waive the consideration of the question, whether the orphans’ court has jurisdiction to take cognizance of a petition for the payment of a legacy merely, and to render judgment thereon, in favor of the legatee, leaving the. estate in the hands of the executor unsettled.

The petition is for the payment of a legacy, and being filed, a rule was made on the executrix, to appear before the orphans’ court, and show cause why she should not pay over the legacy to the petitioners bequeathed by the last will of the testator. The executrix appeared, and pleaded to the petition, that the legacy was to be paid to Mary A. M. Gilder, now the wife of the petitioner Oasly, when she became of age, provided it could be done then without a sale of the pro*324perty, which consisted of land and negroes only; and that by a later clause in said will, the defendant, as executrix, was to use and manage the property, to the best advantage, for the purpose of educating and raising the younger children of the testator, until the youngest child became of age ; and then averred, that the youngest child was still a minor. To this plea the petitioners demurred.

The plea to the petition is, in substance, that the legacy is not now payable, because it was not to be paid to the wife of the petitioner when she became of age at all events, but only if it could be done without a sale of the property; and if it could not be done without a sale of the property, then the payment of the legacy should be postponed until the youngest child became of age.

If this is the construction of the will, then it will be necessary for the petitioners to show, that the executrix could pay the legacy without selling the property. But whether this is the proper construction of the entire will, we have no means of determining, as the will is not set out in full. The demurrer admits the truth of the allegations of the plea, and the plea within itself shows a sufficient cause why the executrix should not now pay the legacy.

The judgment of the orphans’ court overruling the demurrer, and dismissing the petition, as the petitioners declined to plead over, is not erroneous, and therefore is affirmed.