27 Me. 338 | Me. | 1847
The opinion of the Court was drawn up by
The testator, Edward Sargent, in his will, devised to his wife his homestead farm; and to his brother, Joseph Sargent, one half of another parcel of land; and the other
This suit was brought by the said Sarah Bugbce and her husband against the devisees, the executrix and the heirs-at-law ; and it was requested in the bill, that the said Edward and Benjamin, who it was stated had not taken possession of the land or accepted the devise, should elect to accept or reject the devise ; if the former, that they might be decreed to execute the trust; if the latter, that the land charged with the legacy might be decreed to be sold, and the proceeds appropriated to the payment of the legacy. Upon a demurrer filed by some of the defendants, various questions were presented; and it was decided, that the legacy was a charge upon the estate devised to Edward and Benjamin Sargent, and that “ the beneficial interest in it, which the plaintiffs have, while the legal title is in others, constitutes a trustand the demurrer was overruled. 23 Maine R. 269. The devisees, Edward and Benjamin, have since filed their further answers, declining to accept the devise.
On a hearing upon the bill and answers, the counsel for the defendants still deny that the land devised is charged with the
The case at bar is very distinguishable from the one invoked. In this will the testator disposed of all his real estate and personal property. His intention was, that Sarah Hasty should have a legacy of $300. It was not to be paid by the executrix ; such a construction is excluded by the terms of the will, •and there was nothing from which she could make the payment ■as she had absolutely the devise of the farm on which the testator had lived ; and all the personal property charged only with the debts. But the payment was to be made by Edward and Benjamin, and they were to have the devise only on the condition that this legacy should be paid. The testator manifestly intended that out of the value of that land, Sarah Hasty should first be entitled to the amount of the legacy ; and the
The heirs-at-law, having possession of the land, should make sale thereof, or so much as is necessary to raise the sum for the payment of the legacy to Sarah Bugbee, and
Decree accordingly. ■