#### Elizabeth Kennedy’s Appeal.

1. A devise was, “ I- order my sons, etc., to take all my property, real and personal, to be jointly held by them until Samuel arrives at age, when or at their pleasure, they are to make equal division. ... It is my wish and desire that while any of my daughters live single, that they have a home and residence in the house I now live in, if they choose.” *Held,*that this gave a daughter only a place of abode:

2. ‘‘Ahorne and residence” in a house, does not necessarily imply maintenance.

3. A bill in equity to enforce the provision to give the daughter a place of abode, is an ejectment bill; the remedy should be in another form.

October 15th, 1874.

Before Agnew, C. J., Sharswood, Williams, and Merour, JJ.

Appeal from the District Court of *Allegheny County.*In Equity. Of October and November Term, 1874, No. 208.

On the 9th of September, 1873, Elizabeth Kennedy filed a bill against David Kennedy, Samuel Kennedy, James II. Hays, and Michael Ruffing ; the bill set out:

1-2. James Kennedy, father of the plaintiffs, died seized of a tract of land, described in the bill. On the 19th of June, 1835, he made his will, devising as follows: “Ido order that my sous David and Samuel take all my property, real and personal, to be jointly held by them until Samuel arrives at the age of twenty-one years, when, or at their pleasure, they are to make an equal division,” etc.' lie further devised, etc.: “ It is my wish and desire that while any or all of my daughters live single, that they have a home and residence in the house I now live in, if they choose.”

3. He died in 1843, and left the plaintiffs, and David Kennedy and Samuel Kennedy, defendants, all being unmarried, living in this mansion-house. In 1847 David married and moved into another house on the property; plaintiff and Samuel lived in the mansion unmarried until 1858, when Samuel married; she, and Samuel and his family, lived there as her home from June 16th, 1864, vVhen she was temporarily absent because the wife of Samuel had made her home uncomfortable. She had “never sold, released, abandoned, or given up the same or her right, . but always insisted *164on the same with- each and all of the defendants.” The petitioner was still unmarried.

4. On January 7th, 1867, she went to the mansion-house and demanded from David and Samuel, who then were residing on the farm, she having her household goods, etc., with her, “ to move into her said home and residence as provided in said will;” they refused her.

5. Having been informed that they had agreed to sell to Hays, defendant, she gave him notice of her right. Hays sold to Ruffing, defendant, who moved on the farm the day her brothers moved away. Hays and Ruffing each had notice of her right before they purchased. She again went to the premises on May 23d, 1871, when Ruffing, acting for himself and the other defendants, refused her demand that she might have a home there.

6. Charged that since the fall of 1866 she had been kept out of her home and deprived without compensation of the provision made for her by her father’s will. She prayed that she might be placed in possession of her home, and that the Court would decree that the defendants surrender her possession of her home, be enjoined from disturbing her hereafter, and be decreed to pay what she might be entitled to, etc. And for further relief.

In their answer the Kennedys averred that the plaintiff left the mansion-house of her own will and surrendered all right to a home and residence there; that they conveyed four acres of the land to her and built a house for her, which she made her permanent home. They denied that she had been deprived of the provision made for her by the will, but had been kindly treated and provided with a home.

Ruffing’s answer was substantially as that of the Kennedys.

Hays’s answer denied knowledge of most of the matters averred in the‘bill. He also demurred to the bill because the plaintiff had a complete remedy at law.

On the 11th of July, Í874, the Court sustained the demurrer and dismissed the bill without prejudice.

The plaintiff appealed to the Supreme Court, and assigned for error the decree of the Court below dismissing her bill.

*R. $ S.*Woods, for appellant.

All the parties fixed a construction to the will, that under its provisions the plaintiff was entitled to maintenance, by allowing her to have it for more than twenty-one years. Her right was not merely to occupy part of the house; if it were so, ejectment might be maintained, not otherwise. Maintenance charged on land cannot be enforced' by ejectment: Craven *v.*Bleakney, 9 *165Watts, 19. Ejectment lies only for things whereof possession may be delivered by the sheriff: Black *v.*Hepburn, 2 Yeates, 331.

*A. M. Brown*and *G. B.*Hamilton, for appellees.

By this will the absolute ownership of the land passed to the devisees, and the expression of testator’s “wish and desire’’did not create a trust: Pennock’s Est., 8 Harris, 268 ; Beck’s Appeal, 10 Wright, 527; Second Reformed Church *v.*Dis-brow, 2 P. F. Smith, 219. A. charge on land.must arise from direct expression or plain implication of intention: Brandt’s Appeal, 8 Watts, 198.

If the plaintiff is entitled to a “ home and residence, and everything which those terms necessarily imply,” the remedy of plaintiff is by a suit at law, oi; a proceeding in the Orphans’ Court: Hamilton *v.*The Overseers, 2 Jones, 147; Wusthoff *v.*Dracourt, 3 Watts, 249; Downer *v.*Downer, 9 Id., 63; Mohler’s Appeal, 8 Barr, 26.

The District Court, sitting in equity, had not jurisdiction of the bill of complaint. The bill is “ an ejectment bill and is demurrable:” North Pennsylvania Coal Company *v.*Snow-den, 6 Wright, 488 ; 1 Daniels, Chancery Practice, 610 ; Grloninger *v.*Hazard, 6 Wright, 389. If plaintiff wishes to compel the defendants to acknowledge her title and admit them to a joint possession, ejectment is the appropriate remedy. If to recover rents, *assumpsit*lies: Borrell *v.*Borrell, 9 Casey, 492. Where the accounts are all on one side, and no discovery is sought or required, courts of equity will decline taking jurisdiction of the cause: Brightly’s Equity, 124-25; McG-owin *v.*Remington, 2 Jones, 63 ; Shollenberger’s Appeal, 9 Harris, 340; Bank of United States *v.*Biddle, 2 Parsons, 53; Story’s Equity, §§ 458-462. Also Clark’s Appeal, 12 P. F. Smith, 447; Norris’s Appeal, 14 Id., 275 ; Tillmes *v.*Marsh, 17 Id., 507.

Judgment was entered in the Supreme Court, October 26th, 1874.

Per Curiam :

It seems to us there is not enough of this will to extend the meaning of the word “ home ” beyond the signification of a place of abode, — a place of permanent residence. If other parts of the will displayed an intention to require the plaintiff to be maintained also, they should have been furnished for our consideration. To draw a .right of maintenance by the brothers from the mere expression of a wish and desire that the daughters, while single, should have a home and residence in the house if they chose, without more, would be to create' an obligation to maintain on the *166premises by the sons and their assigns, without regard to the circumstances and without any means of measuring the extent of' the testator’s intent. A home and residence in a house do not necessarily imply maintenance. If the testator merely intended to give the daughters a permanent place' of abode, and place of residence in the house, and no more, the bill is only an ejectment bill, and the remedy is in another form.

Decree affirmed with costs, and appeal dismissed.