190 WINDER v. DIFFENDERFFER.—2 BLAND.

but claiming the distribution of a fund to which they are alike
entitled.

Marshalling of assets respects two different funds, and two differ-
ent sets of parties, where one set can resort to either fund, and the
other only to one. As where there are real and personal assets,
and judgment and simple contract creditors; the real assets will be
applied to the satisfaction of the judgment creditors; so as to leave
* the personalty to satisfy the debts due by simple contract.

203 1 Mad. Chan. 615. But here there is but one fund and one
set of claimants, who alt deduce their titles from the same foun-
tain. There is, then, nothing to be drawn from the principles of
equity in relation to the marshalling of securities or of assets
wliich can, in any manner, aid the representatives of the late
Catharine, in maintaining the stand they have taken.

It has, however, been argued, that the amount misapplied by
the trustee Vincent, came to the use of those under whom Ara-
minta claims. And, therefore, that it ought to be deducted from
the share now about to be awarded to her.

If it had been shewn, that the trustee Vincent had fraudulently
misapplied the funds, and that Araminta, or those under whom she
claims, had participated in the fraud; or that Vincent had paid
money, properly belonging to the late Catherine, or her representa-
tives, to Araminta, or those under whom she claims, who had
received it, knowing it to be such, then there would have been a
strong equitable ground for deducting the amount so received, for
the benefit of the representatives of the late Catherine, from the
amount now about to be awarded to Araminta. But there is no
proof whatever of any fraud in Vincent, or of any participation in
it by Araminta, or those under whom she claims; or of their
having received any sums of money, knowing it to be the money of
the late Catherine; or that it was money to which they were not
justly entitled.

Upon the whole, therefore, I am of opinion, that no deduction
whatever can be made from the share to which the plaintiff Ara-
minta is entitled; because, of any misapplication of the rents and
profits in payment of the debts of the late Charles Eogers, or on
account of any other misapplication of them by the former trustee
Samuel Vincent.

Having thus disposed of the claims of the representatives of
Catherine Diffenderffer. deceased, it only remains to determine the
extent of the liabilities and allowances of the defendant John Dif-
fenderffer.

It has been urged, on his behalf, that he cannot be considered

as a trustee; because he took possession of this property in no

other character, than as the natural guardian of his children.

admitting that he did so. He himself states, that he held

204 their * right under the will of their grandfather; and so far.