Baker's Appeal

| Pa. | Oct 31, 1868

The opinion of the court was delivered, November 18th 1868, by

Agnew, J.

We have no doubt that these legacies were charged by the testator upon the farm he devised to his son Joseph, In every case the question of charge is one of intention, to be collected from the whole will. In this case Henry Baker devised his farm to Joseph E. Baker upon payment of $6000 in gold. This expression is not unmeaning, for though not contemplating a postponement of the enjoyment of the farm after Joseph had accepted the devise, it suspended the investiture of a complete title, for the testator then directed that a deed should be made by his executors, and proceeded to add that $3000 should be “ secured in said farm, and the interest thereof paid to his wife annually during life,” and directed that this $3000, calling it the “balance of purchase-money, remaining in the farm,” should be» divided among his children, including Joseph, at her death. Further on he directs that Joseph should be allowed a reasonable time for payment of the shares of the heirs, with interest from his death, “ should he accept or purchase my farm upon the terms set forth in this my will.”

Again, he provides, should he “ refuse to purchase or accept my farm,” then that it should be sold by his executors. Thus the intention to treat the money to be paid by Joseph as in the nature of purchase-money, and control the title until it be paid in part and the remainder secured, is too apparent to be doubted. The authorities are clear upon this subject, that an intention to charge must be inferred in such a case.

This charge confers jurisdiction upon the Orphans’ Court under the 69th section of the Act of 24th of February 1834, to enforce payment of the legacies, after an acceptance of the terms of the will. We notice that the executors have not been made parties, as required by this section of the Act of 1834. Especially should this have been done in this case, where the executors are made by the will the conduit of the title and of the security for the unpaid purchase-money. It is their right to be called in to defend, though they may not petition for the payment of the legacies: Fields’ Appeal, 12 Casey 11. But as no exception was taken or error assigned on this ground, we pass it by.

There was no error in suffering the legatees, or some of them, to join in the petition. The proceeding is not at common law, but in the nature of a bill of equity, and the joinder inflicts no injury upon the devisee or the executors, but saves litigation and a multiplicity of suits and the increase of costs. There is nothing in the language of the act or its purpose forbidding it, but the contrary, the court being directed to proceed according to equity and make such decree or order as may be requisite and just. It was very proper in this case, where the $6000 is viewed by the testator as the entire purchase-money (though to be divided in final distribution), a single sum, therefore, and in the language of the act, “ a legacy charged upon real estate.” It is highly proper, therefore, that the Orphans’ Court should have all the parties before it in making a decree against the devisee. One alone might have petitioned, but we perceive no error in others joining with him.

There was no error in refusing the issue. In the Orphans’ Court the granting of an issue is discretionary under the Act of 29th of March 1832, § 55, Purd. 768, pi. 44. It declares that the Orphans’ Court shall have power to direct an issue to the Court of Common Pleas whenever they shall deem it expedient so to do. The supplementary Act of 20th of April 1846, §§ 2, 3, Purd. 768, pi. 45, 46, applies only to the distribution of money arising from sales under execution and Orphans’ Court sales.

The legacies drew interest from the death of the testator by the terms of the will, and the period fixed by the court for payment of the first $3000, to wit, one year, was a fair and reasonable time within the meaning of the will. One year is the period fixed by law for the distribution of estates, and the payment of legacies generally, and affords a fair analogy.

When this case was here before, we considered and determined the meaning of the words, “ in gold or its equivalent,” and held that the equivalent meant the commercial value of the gold in the market. The court was therefore right in determining the premium upon gold when converted into currency, and fixing its amount in legal tender notes. This embraces the interest also. The court was right therefore in allowing the premium on the gold interest.

Rut there was an error made by the master in calculating the interest from the 24th of November 1866, making the sum of $471.81. This sum includes interest on the interest which had been added to the principal. The interest of the $180 of interest must be deducted.

There is a more serious error in calculating the premium (42 per cent.) on the $3000 payable at the death of the widow. Before this sum falls due, to wit, on the death of the widow, it is impossible to determine the premium or commercial value of the gold. The time of payment is future and uncertain, and gold may then bear no premium, or it may bear one much higher. The decree must be modified to meet this contingency. The other assignments of error are not supported.

And now, November 18th 1868, this cause having come on to be heard, and having been argued by counsel, it is ordered and decreed by this court as follows, to wit: It is considered and decreed that the sum of $6000, payable by Joseph E. Baker, the devisee under the will of Henry Baker, is charged in and by the said will upon the tract of land mentioned and described in the petition, and devised by the said Henry Baker in his will to his son, the said Joseph E. Baker, and that the said Joseph E. Baker shall be charged with, and shall pay in the equivalent commercial value of gold coin, so much thereof as remains unpaid by him, the said residue in the commercial value of gold, being as follows, that is to say:

The sum of $99.35 to the executors of Henry Baker for their commissions, and the sum of $618.24 to John W. Baker; the sum of $618.24 to Martha Jane Ferguson ; the sum of $618.24 to Henry W. Baker; the sum of $618.24 to Mary L. Osborn; the sum of $618.24 to Emily Gr. Singleton, and the sum of $540.88 to the heirs of Wm. A. Baker, and shall retain to himself, the said Joseph E. Baker, one share, to wit, the sum of $618.24, and that the remainder of the said sum of $3000, first due and payable, is satisfied and discharged by the release of David P. Mitchell and Eliza Ann his wife, formerly Eliza Ann Baker.

It is further ordered and decreed that the sum of $3000, directed by the testator to be paid by the said Joseph E. Baker at the decease of his widow, shall be and remain charged in and upon the said premises, in the hands of the said devisee and his heirs and assigns, and that he or they pay to Martha Baker, the said widow, the interest thereof, to wit, $180, annually from the 24th of November 1865 (excepting so much as he may have heretofore paid to her), in gold coin or its equivalent in current money, calculating the same at the commercial value of gold coin at the time each several sum shall fall due and payable; and that at the death of the said widow the said Joseph, his heirs or assigns, shall pay to each of the following named legatees, their executors or administrators, to wit, the said John W. Baker, Martha Jane Ferguson, Henry W. Baker, Mary L. Osborn, Emily Gr. Singleton, and the heirs of Wm. A. Baker as representing one share, the sum of $375 in gold coin or its equivalent in current money, calculating the said gold coin at its commercial value in currency at the time the said sums shall fall due and payable, at the death of the said widow; and that he, the said Joseph E. Baker, shall retain in his own hands a like sum of $375 for his share. And as to the share of the said Eliza Mitchell, the same is decreed to have been released and discharged by the release of her and David P. Mitchell her husband.

It is further ordered that, upon compliance with the foregoing decree as to the payment of the first sum of $3000, that is to say, on full payment of the said unpaid residue of the said $3000, the executors of said Henry Baker shall execute and deliver to the said Joseph E. Baker, his heirs and assigns, a deed in fee simple for the land and premises aforesaid, according to the will of the said Henry Raker, deceased, subject to the payment of the unpaid residue of the second sum of $3000 to the legatees thereof at the death of the widow, and the interest thereof annually to the widow, in the mean time, according to the foregoing decree.

It is further ordered that the said Joseph E. Baker pay the costs in the Orphans’ Court, and that the costs since the appeal be paid by the appellees. It is also ordered that, on failure of the said Joseph E. Baker to pay any of the sums decreed to be paid by him as aforesaid, the payment thereof may be enforced by process of execution, to be issued by the Orphans’ Court in due form of law.