6 Johns. Ch. 33 | New York Court of Chancery | 1822
(1) The defendant has no right to require security to refund, before payment of the legacy, for he does not pay the legacy in a representative character. The devise was given to him on condition of paying such a legacy to the plaintiff, Catharine; and if he accepts of the devise, he takes it cum onere. This is the case of a devise, creating a charge on the person of the devisee, in
(2) The defendant is bound to pay interest from the time the legacy became payable. It was a charge upon the defendant in respect tb the land devised to him ; and as the land, of course, yields rents and profits, the payment of interest from the time the legacy was payable, is very just and reasonable j and the interest runs, though the legacy was not demanded when due.
(3) The plaintiffs are entitled to costs, for though no demand of the legacy is shown, the defendant says, in his answer, that if a demand had been made, it would not havé been complied with. A suit was, therefore, necessary on the part of the plaintiffs, by the admission of the defendant, and he ought, in justice, to be made chargeable with the costs. The pretence, that security to refund was wanting, was mere pretext, for the testator has been dead upwards of twelve years, and there is an admission of personal assets sufficient to pay debts; and the presumption from the lapse of time is, that there are no debts existing against the heirs, or personal representatives of the testator.
But, as the husband and wife are here suing for the wife’s legacy, the wife is entitled to a reasonable provision
Decree accordingly.