9 Watts 60 | Pa. | 1839
The opinion of the Court was delivered by
testator devised to his son, Levi Downer, the
It at one time occurred to us, on the authority of Wheeler v. Walker, 2 Conn. Rep. 201, that this suit might be supported by the plaintiffs, as the heirs of the testator. And this is so at common law; but since the passage of the act the 24th of February, 1S34, which gives a remedy to the legatee, the remedy by ejectment is taken away, as it would be in the teeth of another act, which declares, that.in all cases where a remedy is provided, or duty enjoined, or any thing directed to be done, by any act or acts of this commonwealth, the direction of said acts shall be strictly pursued, &c. The act of the 24th February, 1834, enacts, that “ when a legacy is or shall be hereafter charged upon or payable out of real estate, it shall be lawful for the legatee to apply by bill or petition to the orphans’ court having jurisdiction of the accounts of the executor of the will by which such legacy was bequeathed; whereupon such court, having caused due notice to be given to such executor, and to the devisee or heirs, as the case may be, of the real estate charged with such legacy, and to such other person interested in the estate as justice may require, may proceed, according to equity, to make such . decree or order touching the payment of the legacy out of such real estate as may be requisite and just. Although the interest which the plaintiffs have under the devise is not technically a gift, or legacy, yet it may be considered an interest payable out of the real estate devised. The land is the fund to which the beneficiaries must look for the payment of the pecuniary bequest to them. They have no personal action against the devisee, he having .refused to accept the devise, and unless the fund is made available to them, they are without remedy. This is a remedial act, and it would impair its usefulness to give it a narrow construction. The act provides for calling all the parties in interest before the court, who have power in -the premises to do all a court of chancery could do, and under their plastic hands to.administer justice in a most complete, and ample manner. In the case at bar they may order the property to be sold and may distribute the proceeds, paying in ,the first place the pecuniary, bequest to the legatees, and if. any thing should remain, distributing the surplus to the heirs of the devisor. Cases may arise where a devisee-may refuse to accept a devise of greater value than the money charged upon it. If such a case should occur it would .be but equitable that it should enure to the benefit of all the heirs and not exclusively to the legatees.
Judgment affirmed.