23 Me. 269 | Me. | 1843
The opinion of the Court was by
This case is presented for consideration upon a demurrer to the bilí; which alleges in substance, that Edward Sargent, deceased, by his will, which has been approved, gave to Sarah Hasty, now the wife of the plaintiff, Bugbee, a legacy of three hundred dollars to be paid, two thirds by his nephew,
The devisees, executrix, and heirs at law of the testator, are made parties defendant. The prayer of the bill is in the alternative, that the devisees may be required either to accept or reject the devise, and that in case of acceptance the plain-tiiffs may have a decree for payment of the legacy, or other adequate relief; and that in case of its rejection, they may have a decree for its payment by the heirs at law, or that the lot of land may be charged with the payment of it, and that it may be sold for that purpose.
The grounds of demurrer presented by the counsel for the defendants are, in the first place, that the limited jurisdiction in equity of the Court does not embrace the case; and that the Court has no power to afford the relief desired. The Court has jurisdiction in cases of trust; and if the legacy be a charge upon the lot of land, the beneficial interest in it, which the plaintiffs have, while the legal title is in others, constitutes a trust. And when an estate is devised on condition of, or subject to, the payment of a sum of money, or where the intention of the testator, to make an estate, specifically devised, the fund for payment of a legacy, is clearly exhibited, such legacy is a charge upon the estate. Knightley v. Knightley, 2 Ves. jr. 331; Lupton v. Lupton, 2 Johns. Ch.
It is further insisted, that if the devise be rejected, the estate does not descend to the heirs at law, and that the de-visees would still be entitled to any beneficial interest, which might remain after paying the legacy ; and that the heirs at law were therefore improperly made parties. If this position were correct, the misjoinder of parties defendant would be no sufficient cause for a dismissal of the bill as it respects other parties than those improperly joined. Cockburn v. Thompson, 16 Ves. 321; Covenhaven v. Shuler, 2 Paige, 123. But the position is not correct. If the devise of an estate be rejected by the devisee, and there be no other disposition of the estate in the will, it will descend to the heirs at law. Townson v. Tickell, 3 B. & A. 31; Doe v. Smyth, 6 B. & C. 112. The cases where a different rule may prevail, as stated in 2 Story’s Eq. § 1085, cited by defendants’ counsel, arise under the doctrine of election and satisfaction, which supposes a plurality of gifts, or devises to a party, who is not entitled to enjoy more than one, but may elect between them. "When as in this case there is a single devise only, the doctrine of election is not applicable to it. The law presumes, that it will be beneficial to the devisee, and that he will accept it, until there be proof, that it has been rejected.
It is further insisted, that the bill should be dismissed because it is multiiarious. When the object of the bill, as in this case, is single, to establish and to obtain relief for one claim, in which all the defendants may be interested, it is not multifarious, although the defendants may have different and separate interests. Brinkerhoff v. Brown, 6 John. Ch. R. 157; Varick v. Smith, 5 Paige, 160.
It is further insisted, that it is a fishing bill, and that it does not show, that the plaintiffs have not an adequate remedy at law. It was decided in the case of Beecker v. Beecker, 7