3 Watts 289 | Pa. | 1834
The opinion of the Court was delivered by
According to the principles settled by this court in the cases of Allison v. Wilson’s Executors, 13 Serg. & Rawle 330, and Morrow v. Brenizer, 2 Rawle 185, Page could not, by deed, mortgage, or incumbrance of any kind, transfer, or create a lien upon, the land directed by the will to be sold. Where a testator orders his lands to be sold, and the proceeds distributed among certain persons, no interest in the land passes to the legatees. They acquire under the will nothing move than a right to receive a sum of money out of the proceeds of sale; a' mere chose in action; a claim strictly of a personal character. The land passes to the executors, under our acts of assembly, whether expressly devised to them, or only directed to be sold ; and it passes to them that they may carry into effect the intention of the testator, by making a title and receiving and distributing the purchase money. It has been held in the cases referred to, that a judgment against such legatee, or a purchaser from him, is no lien on the land, nor can the land be seized and sold under an execution on such judgment. These decisions rule the present cáse. Page, when he made the mortgage of all his interest, had acquired the interest of only three of the legatees; but that interest did not consist of any right in the land, and he could not, by virtue of this acquisition, transfer or charge the land. It remained in the executors fully and completely, until divested by their deed to Gray of the 29th of January 1825, by which they conveyed it to him unaffected by any act of the legatees, or of Page. It follows that the mortgagee of Page acquired no lien by. his mortgage.
Judgment affirmed.