Opinion by
Beaver, J.,
Jacob Palm by his will disposed of his real estate as follows: “I direct, and it is my will, that my son Isaac shall have my house and lot which I now occupy at Sinking- Spring, containing about one-half an acre of ground, with all the appurtenances belonging thereto, at the sum of four hundred dollars, the interest whereof is to be paid annually to Molly Grimes during her lifetime or widowhood .... and, upon her death or marriage, I direct the said sum of four hundred dollars to be equally divided among my said three children, Isaac, Ellen and Henry Palm, or their lawful issue.” After the death of the testator, the interest of Isaac Palm was sold by the sheriff upon a judgment and purchased by the said Molly Grimes. After her-death, under proceedings in partition and subsequent conveyances, the estate became vested in the present appellant. The; *299administrator of Ellen and the widow of Isaac petitioned the orphans’ court, under the provisions of the 59th section of the Act of February 24, 1834, P. L. 70, to enforce the payment of the amount alleged by them to be charged upon the land devised to Isaac. It seems to be conceded that the amount of $400, directed by the will of Jacob Palm to be divided among his three children, was a charge upon the land; and, if it were not conceded Weiler’s Estate, 169 Pa. 66" court="Pa." date_filed="1895-05-30" href="https://app.midpage.ai/document/weilers-estate-6243054?utm_source=webapp" opinion_id="6243054">169 Pa. 66, would seem to decide that question. Henry Palm did not join in the petition and, under the provisions of the act of 1834, supra, it would seem that no one else could petition for him. He is not represented here nor was he in the court below. Upon what ground, therefore, the court made a decree as to his interest we are at a loss to understand. It is alleged that, under the will of Molly Grimes who was the mother of Henry Palm, his interest, including one-half of the interest of Ellen, was directed to be paid and was paid to him. As to this, however, we have no evidence and allude to it only for the purpose of explaining the action of Henry in failing to join in the petition for the enforcement of the legacy charged upon the land devised to Isaac, as provided in his father’s will.
As to the interest of Isaac two questions arise: 1. Is the petition of the widow a compliance with the provisions of the act of 1834, supra? 2. Was his interest in the legacy charged upon the land as well as his legal title divested by the sheriff’s-sale?
The 59th section of the act of 1834, supra, reads as follows: “ 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 said legacy was bequeathed; where upon said court, ” etc. It is clear that, the widow has no right, under this section, to petition for the application of the remedy provided therein, and it may be doubted whether a payment to her under the decree in this case would discharge the land of the appellant from the lien of the charge upon it, if it in fact existed. The petition in such a case must be presented by the representative of the legatee as was done in Moran’s Appeal, 13 Pa. Super. 251" court="Pa. Super. Ct." date_filed="1900-03-21" href="https://app.midpage.ai/document/in-re-estate-of-moran-6272873?utm_source=webapp" opinion_id="6272873">13 Pa. Superior Ct. 251. The decree as to Isaac’s interest cannot, therefore, be sustained. But it seems, to *300us also manifest that, if, as is conceded, the legacy was charged 'upon the land, all interest which Isaac had therein was sold at the sheriff’s sale, at which Molly Grimes became the purchaser, or the lien thereof divested so as to transfer the claim to the proceeds of sale. The question involved is treated at length by the court below, as depending upon the merger of the two estates which Isaac had in the property, namely, the legal estate devised by the will and the contingent interest which vested in him by the terms of the will also, and the decision of the court below is based in part upon its finding that no merger of these estates took place. As we view the case, however, it is not exclusively a question of merger. The two interests may have passed by the sheriff’s sale without actual merger. In Drysdale’s Appeal, 15 Pa. 457" court="Pa." date_filed="1851-04-07" href="https://app.midpage.ai/document/drysdales-appeal-6228864?utm_source=webapp" opinion_id="6228864">15 Pa. 457, in which E. was the purchaser of certain property .at sheriff’s sale and took the title in trust for himself and others who were creditors interested in the property sold, it is said: “ He was a trustee with a beneficial interest of his own, and it is immaterial whether his equitable estate merged in the legal estate or not. As he had a successor who could execute the trust only by selling the title entire, it may be assumed that it did not, but his equitable estate in the soil remained in him and it is not to be disputed that such an estate may be bound by judgment.” If the amount to be paid by Isaac was a charge upon the land, his interest therein was in the nature of an equitable estate in the land, which vested in him at his father’s death, although not payable until the death of Molly Grimes, and liable to the lien of the judgment upon which his entire estate was sold. The court below decided that the payment to be made by Isaac, .as provided in the will “ was a charge in the title of that indefinite class as to duration which is not divested or in anywise affected by a judicial sale, before the happening of the event which is to determine the intermediate interest and which entitles those having deferred rights to realize the subject of them in possession and enjoyment. As Magdalena (Molly) Grimes remained a widow until her death July 13; 1890, no judicial sale before that date could disturb the lien of the charge and it was, consequently, unaffected by the sheriff’s sale of the estate of Isaac Palm.” As authority for this conclusion, Hart v. Homiller, 20 Pa. 248" court="Pa." date_filed="1853-01-20" href="https://app.midpage.ai/document/hart-v-homiller-6229341?utm_source=webapp" opinion_id="6229341">20 Pa. 248, is cited, but that case is not only not authority for the position but in effect directly controverts it. *301The estate of the remainder-man was in that case expressly excepted by the sheriff at the sale. In the opinion of Mr. Justice Lowrié, he fully recognizes that the charge was not only a lien upon the estate but that it could have been sold and ought to have been sold by the sheriff, but that the purchaser at the sheriff’s sale took it subject to the lien of the charge, because it was expressly excepted. It is said in the opinion: “ But it is argued on the other side that it is not a, lien on the land in the hands of Hart. Why not? He'bought expressly subject to it and his liability cannot honestly be evaded. Grant that the sheriff ought not to attempt to continue liens that ought to be discharged by the sale; still in this case he was not wrong in copying the title as he found it written ; and, when a levy and sale is so made and the deed delivered and accepted in. pursuance of it, assuredly the law would be encouraging dishonesty by allowing the purchaser to take the whole title, on performing but a part of the terms on which he bought it. No one can read these terms without seeing that lie must have purchased under the expectation that he would have to pay this charge, in addition to his bid.” It is nowhere intimated that there was any exception at the sale of Isaac’s interest. The amount of the charge was definite, although the time of payment was uncertain. It does not belong to the class of charges indefinite in amount and indeterminate in time, discussed in Bonebrake v. Summers, 8 Pa. Super. 55" court="Pa. Super. Ct." date_filed="1898-07-29" href="https://app.midpage.ai/document/bonebrake-v-summers-6272277?utm_source=webapp" opinion_id="6272277">8 Pa. Superior Ct. 55; 193 Pa. 22" court="Pa." date_filed="1899-10-06" href="https://app.midpage.ai/document/bonebrake-v-summers-6245479?utm_source=webapp" opinion_id="6245479">193 Pa. 22, and similar cases. The purchaser at the sheriff’s sale in this case, therefore, in our view, became the owner of Isaac’s entire estate, including his interest in the amount charged upon the land devised to him, and it became vested by the conveyances which followed in the present appellant. Weiler’s Estate, supra, clearly assumes this conclusion to be correct, because, under similar circumstances, the court held therein that the interest of one of the heirs, who was an assignor for the benefit of creditors, and of another, whose interest had been sold at sheriff’s sale, were divested by judicial sales by the assignee and sheriff respectively. As to the interest of Isaac, therefore, the decree of the court below is, upon both grounds, erroneous.
As to the interest of Ellen, no question is raised as to the right of her husband, who was the administrator of her estate, to apply for the benefits of the provisions of the 59th section *302of the act of 1834, supra. If the facts alleged by the appellant were clearly shown in the testimony taken in the court below, the question of laches might become of practical importance. There is not enough in the record, however, to enable us to reach a conclusion upon this subject, nor does it appear affirmatively by the testimony that the amount paid to Henry under the will of his mother included his own interest and the half of his sister Ellen’s. We must assume, in the absence of evidence to the contrary, that, so far as this interest is concerned, it has never been paid or divested and is still a charge upon the land in the possession of the appellant. The decree of the court below, therefore, so far as this interest is concerned, must be sustained. As to the other interests it is reversed.
In view of the fact that the representative of Ellen made demand upon John S. Grimes, in whom the estate of Molly Grimes became vested under proceedings in partition, for the payment of her interest in the amount charged upon the land devised by the will of Jacob Palm to his son Isaac prior to the date of the proceedings in partition and apparently abandoned the claim, making no subsequent claim upon the said Grimes, and permitted the said property to be sold at public sale to the .appellant without notice of his claim, although letters of administration upon the estate of his wife had deen issued to him more than a year previously, we think it would be inequitable to visit the costs of this proceeding upon the appellant. It is, therefore, adjudged and decreed that the decree of the orphans’ court be reversed and set aside, so far as it relates to the interests of Plenry Palm and Isaac Palm in the legacy charged by their father in his will upon the land now in the possession of the appellants, and that, so far as the interest of Ellen Ernst is concerned, the said decree be affirmed, and that the appellant pay to the administrator of Ellen Ernst the one-third part of the said sum of $400, with interest thereon from the time when the same became payable under the terms of the will of Jacob Palm, to wit: at the death of Molly Grimes, the costs of this appeal to be paid by the appellees.