2 Del. Ch. 23 | New York Court of Chancery | 1837
The questions argued related to the construction of the will—whether the legacy bequeathed to Mrs. Kibler was a charge on the real estate devised to the defendant; and
The Chancellor, at the hearing, doubted whether this will charged the pecuniary legacies on the land, and was of opinion that if such charge existed it had sunk into the residue for the benefit of the devisee on the death of Mrs. Kibler. He, therefore, dismissed the complainant’s bill. He afterward expressed a change of opinion upon the points above stated, but adhered to his decree, upon the ground that the bill being filed against the defendant, as executor of the testator, he could not in this suit.be charged as devisee of the land, and in respect of the land. The charge is personal to the son, and not as representative of the testator’s estate, in which capacity there is no liability, and no fund in his hands applicable. The relief granted in equity must be according to the case made by the bill. The prayer fqr general relief does not meet such a case.
On appeal the decree of the Chancellor, dismissing the bill, was affirmed by the Court of Errors and Appeals, at the June Term 1838, upon the ground that the bill charged the defendant only as executor, in which character, having no assets, he was not liable.