9 Watts 529 | Pa. | 1840
The opinion of the court was delivered by
The defendants below, who are the plaintiffs in error, resisted the claim of the plaintiff below, for the arrears of the annuity of twelve pounds, charged upon the one hundred and fifty acres of land, devised to Henry Singer, Jr., by the last will of his fatjher, Henry Singer, the elder, on the ground that the annuity became extinct, either in whole or in part, by means of the one undivided fifth of the land’s having descended to Catharine Heffernan, the annuitant and intestate of the plaintiff below, as one of the five heirs at law of the devisee of the land, who died intestate, as it appears from the petition of John Singer to the orphans’ court, on the first of July, 1807. The court below, however, were of opinion that the circumstance of the annuitant’s having become by descent the owner of an undivided fifth part of the land, as tenant in common, did not affect her right to have the full amount of the annuity thereafter paid to her, in any degree whatever, and accordingly instructed the jury to that effect. To this instruction the counsel for the defendants below took exception, and have assigned it here as the first error. In the first place it may be proper to observe, that the claim to the annuity is not made against the estate of Henry Singer, the devisee, generally, as if he had been personally liable originally for the payment of it, but against the fund arising from the sale of the land, or rather one hundred acres thereof, whereon it was charged •and made a lien by the will of the testator, who gave it. For supposing the annuitant to have been entitled to claim the whole of the annuity against the devisee personally in his lifetime, or his personal representatives after his death, yet it may present a different question, whether she, having become the owner of an undivided portion of the land, upon which the annuity was charged, could do so as against it thereafter. Now it is very clear, that, if she had become the owner of the whole of the land so charged, the annuity would have become entirely extinct thereby. Notwithstanding, however, the court below considered this would have been the result of such an event, yet they entertained the opinion, that a partial ownership of the land by the annuitant would not operate as an extinguishment even pro tanto. Under the statute regulating the descent of estates of inheritance in Pennsylvania, no distinction is or can be made as to the quantum that each of the heirs standing in .equal degree to the ancestor shall take, where every thing like advancement to any of them by the ancestor in his lifetime is out of the question. Their interests are made equal by the statute; but in the case before us, if it were to be adjudged that the annuitant took her undivided fifth part discharged of the annuity altogether, and that the other heirs took their respective portions of the estate, charged exclusively with the whole of if, the consequence is,
The second error is, that the court erred in charging the jury, that the judicial sale made by the sheriff of the fifty acres to John Dotterel-, for 150 dollars, did not discharge so much of the claim of the intestate of the plaintiff below, as the fifty acres ought in equity to bear; according to their proportional value to that of the whole one hundred and fifty acres. We are of opinion that this error cannot be sustained. The land upon which the claim of the intestate of the plaintiff below was a charge, consisted of two separate lots, one containing one hundred acres, and the other fifty acres: so that in this respect she may be considered as having two distinct funds, to which she had a right in law to resort, in order to have her claim satisfied. In such case, having a clear legal right to resort to either for payment, she of course had the right of forbearing to make her claim upon the first that was converted by a judicial sale into money. If any objection existed on the part of any one to her doing so at the time, he ought then to have made it known, and to have invoked the aid of equity to prevent her from doing so, if he had any sufficient ground for it. Her right to go against either fund, or any portion of the land charged, being a perfect legal right, could not be affected by a mere equitable objection, unless it were made in time to prevent her from losing by it. But the moneys arising from the previous sales having been all appropriated to the payment of other claims,cannot now be come at by the plaintiff below; and no notice having been given to him or his intestate that such a thing was desired, it is obviously too late to insist now upon having recourse thereto, or upon his losing any portion of his claim because he or his intestate did not do so. If we had a court of chancery, the right of the intestate of the plaintiff below at law, to resort to either fund, could have been resisted only in that court; but it is too plain to admit of illustration, that if such application were not made until after the plaintiff’s intestate had permitted one of the funds, upon which she had a lien, to be appropriated to the discharge of junior claims, it would be too late then to make it, as no alternative remained.
The third error presents substantially the same question as the second, and therefore requires no further answer in order to show that it cannot be sustained.
The fourth error is also untenable. The claim of the plaintiff below, in right of his intestate, is not, properly speaking, founded upon the bond there alluded to: for if it had, it might be lost as to her estate upon another ground, very different from that of its hav
There is nothing in the fifth error;, because the issue joined here being a feigned one, ordered by the court for the purpose of ascertaining matters of fact, they might nominate whom they pleased as parties for that purpose.
The question embraced in the sixth error was settled by this court in Heffernan v. Addams, 7 Watts 116, where it was determined that the letter of attorney mentioned in this error was not legally executed—in short, not executed at all.
The question raised by the seventh error is answered fully in the answer given to the first error.
We also think that the court were right in the instruction given to the jury, which is excepted to in the eighth and last error. Catharine Heffernan, the intestate of the plaintiff below, being a daughter of the testator, William Singer, the elder, it may therefore be reasonably supposed that he intended the twelve pounds per annum as a partial support for her at least, and for this purpose his desire was, that it should be punctually paid to her, that she might by means of it be made comfortable.- For want of it, however, it may be, that debts were contracted upon which she had to pay interest. But besides, as it regarded her, the twelve pounds are not to be looked upon as the interest of money that was due or o\ying to her. It was itself principal to her, so far as she had á claim to it; and therefore ought to have been punctually paid. And had it been so, she would have had thfe use of it, which we must presume would have been equal in value to the interest; but having lost the use of it, by reason of the delinquency of the owners of the land, who were bound to have paid it regularly as it fell due, it is but reasonable that interest should be allowed as a compensation for the loss so occasioned.
The judgment is reversed on account of the first error assigned, and a venire de novo awarded.