The opinion of the Court was delivered by

It is inaccurate to say that the money in contest was primarily bequeathed to Mrs Tilford and her children. It was bequeathed for a definite period to the executor himself, in trust, to employ it in business and apply the produce of it to their maintenance. During that time the testatrix gave them no property in the principal, and it is fallacious to assume that she put so much into joint trade as their part of a capital, and that, having thus constituted a partnership betwixt them and the executor, she intended to leave them exposed to the mischances of that relation. Had there been a partnership, it would not have been a limited one, but such as might have plunged not only their legacy, but all they had beside, into the gulf of. his debts;, and her bounty might thus have brought them destruction, instead of succour. But she gave them an interest only in the profits, which, though a title to call their trustee to account, was an equitable one; and we know of no such thing as an equitable partnership. The executor, though not the benefi iary, was the legatee for the purpose of the trust; and what was it? To invest, during a limited time, the principal in business for his mother and her children, and to apply the *534produce of it to their maintenance. That did not require it to be invested in partnership. Had she directed him to invest it, during the period, for his own profit, there would not have been a doubt about it; it would have been a loan without a feature of partnership, or any thing else that could have involved its existence in the fate of his house. What else is this legacy, standing as it does, than a bequest of the use, the principal being employed under his management? He was not required to invest it in his own business; and what if he had lent it to a merchant on terms of securing the principal and accounting for the profits? It would have been, nevertheless, a loan, and perhaps not illegal, even had the profits transcended the legal rate of interest; certainly it would have been void, on that account, for no more than the excess. Uniting, then, in his person, the separate characters of borrower and lender, he remained debtor to the fund for the principal, as he would have done for the rest of his capital had he borrowed it from the assets; and surely a provision for the repayment of such a loan is not fraudulent. Mercantile creditors have priority of recourse only to joint effects, and through the equities of partners against each other; but where there has been no partnership, there are neither joint and separate estates, nor joint and separate creditors; and he who furnished the table stands on a footing with him who stocked the store. It will not be supposed that the testatrix designed to subject her bounty to the hazards of any one’s business. It was a gift, not of the debt, but of the produce of it; and that, as I have said, did not make the principal the less a debt, or give the other debts a preference. Partnership being out of the way, the use to which it was destined did not change its character, or subject it to the demands of any one but those who were intended to benefit by it. The assignees, therefore, will pay the money to the parties indicated by the will and the assignment; and the court, as it has been suggested that the guardian of one of them is insolvent, will see that the proper caution is given.

Report and decree affirmed,