65 Vt. 303 | Vt. | 1893
The opinion of the court was delivered by
Timothy P. Phelps, who died on August 25, 1864, devised to George Whittemore for life that part of his
On Nov. 11, 1867, Whittemore and one Barnum, who had become a joint owner with Whittemore, quit-claimed the premises to the annuitants, their heirs and assigns, in consideration that they “do release and discharge the said Whittemore from all personal liability to perform or pay any and all the conditions, charges and annuities” imposed and charged thereon by said will. On the 22d of said November, the annuitants quit-claimed the premises to said Barnum, and their deed purported to discharge the land and Whittemore and Barnum from the further payment of all “annuities” charged.thereon by said will, due or to become due to them or any of them, or to their or any of their
Laura Roberts died on Dec. 26, 1888, leaving no heirs but nephews and nieces, of whom there are fourteen, namely, seven of the orators, the six defendants, and the said Wallace P. Hall. Said orators are the children and only heirs of Clarissa Hodges, deceased, a sister of the said Laura’s, and the defendants, except Jerome P. Hall, are the children and only heirs of Asaph Phelps, and Jerome P. Hall and Wallace P. Hall are the children and only heirs of Marcia Hall, and Wallace has conveyed to Jerome all his interest in the legacy given to his mother.
The orators seek to recover one half of the legacy given to the heirs of Mrs. Roberts, with the interest thereon, and pray that the defendants be decreed to pay the same to them, and in default thereof, that a trustee be appointed to sell the land to satisfy the decree, and for general relief.
The defendants answered, alleging among other things, that the present value of the land does not exceed $2,000,
The case was heard on bill and answer, and a decree was entered that the orators were entitled to $800, it being one half of the legacy given to the heirs of Mrs. Roberts ; that the legacies are a charge upon the land; and that unless the defendants paid said sum to the orators, with the interest thereon, a trustee should be appointed to sell enough of the land to pay the same and the costs, provided the land is worth as much as the amount of the three legacies, but if not, then to sell a proportionate part thereof, the value of that sold to bear the same ratio to the value of the whole that $800, with interest and costs, bear to the amount of all the legacies; and a personal decree against the defendants was denied. From this decree both parties appealed.
We think it was not the intention of the testator that the surrender of his estate to the annuitants by the life tenant should operate to discharge the land from the burden of the legacies, but only that it should release the tenant, for whom he seems to have had especial regard, as he was otherwise a large beneficiary under the will, from personal liability in the matter, that is, from the payment of the annuities and the legacies, as the will says. And this seems to have been the understanding, both of the tenant and of the annuitants, for the tenant’s deed was given on that express consideration, and imports no other release, although it probably effectuated a discharge of the land from the burden of the annuities into whosever hands it might thereafter pass, as the annuitants thereby got the same thing in another form, namely, the life use. But they took the land charged with the legacies, just as the life tenant had it, and
But how shall the legatees take, per capita or per stirpes? Per capita, clearly; for the rule is that a gift of personality to “ heirs ” merely, whether to one’s own heirs or to the heirs of another, is primarily to be held to be to those who would be entitled to take under the statute of distributions, and to indicate, when there are no words to show the contrary, that they are to take in the same manner and in the same proportions as though the property had come' to them as intestate estate of the person whose heirs they are called. Daggett v. Slack, 8 Met. 450 ; Tillinghast v. Cook, 9 Met. 143 ; Houghton v. Kendall, 7 Allen 72; Brothers v.Cartwright, 2 Jones’ Eq. 113, (64 Am. Dec. 563). There are no words in this will to show that the testator used the word “heirs ” in a sense different from that above indicated ; hence he is presumed to have used it in that sense. Now Mrs. Roberts left no heirs but nephews and neices, therefore her intestate estate, according to Hatch v. Hatch, 21 Vt. 450, would be distributed to them under the fifth canon of de
It is settled law that a devisee who accepts a devise chai'ged with the payment of a legacy, thereby becomes personally liable to pay the legacy, although the land is worth less than the amount of the legacy. This liability is put upon the ground of an implied promise arising from the fact of acceptance ; for the doctrine is, that he who accepts a benefit under a will must conform to all its provisions and renounce every right inconsistent with them. Brown v. Knapp, 79 N. Y. 136 ; Glen v. Fisher, 6 Johns. Ch. 33 ; Wiggin v. Wiggin, 43 N. H. 561, (80 Am. Dec. 192) ; Porter v. Jackson, 95 Ind. 210, (48 Am. Rep. 704). But when the de-visee conveys the land subject to the charge, the vendee stands in respect of personal liability much like one who purchases mortgaged premises subject to the mortgage, who does not become personally liable for the mortgage debt without a contract of assumption, evidenced in some way. But no particular form of words is necessary to create such liability; any words that clearly import the assumption of such obligation are sufficient to impose it, and the intention will be sought from the whole instrument, if the promise is to be gathered from a writing. The’ statement in a deed that the land is conveyed subject to mortgage, does not of itself make the grantee personally liable for the payment of the mortgage debt. But if the statement is that the grantee assumes, or agrees to pay, the mortgage, then he becomes personally liable. So, by many authorities certainly, when the purchaser agrees to pay a particular sum as purchase-money, and on the execution of the contract of purchase the amount of the mortgage is deducted from] the consideration and the land conveyed subject to the mortgage, the pur
As between the defendants and their grantor, Mrs. Platt, it is undoubtedly for them to discharge the legacies, first, because their deed is a quit-claim deed, and when one purchases an equity of redemption by a deed without covenants, he takes the estate charged with the payment of incum-brances, it being presumed in such case, nothing to the contrary appearing, that the amount paid was the price less in-cumbrances, which are for the purchaser to discharge. Guernsey v. Kendall, 55 Vt. 201; 1 Jones, Mort. s. 736; and second, because said deed expressly provides “ by the agreement of the parties ” thereto, that Mrs. Platt, her heirs, executors, and administrators, “ are hereby .discharged and forever released from the payment of the aforesaid legacies.”
Now the will not only charges the legacies upon the land, but it expressly directs that the legal owner thereof shall pay them. Hence, by the very terms of the will, when one be-corries such owner he thereby becomes liable to pay, irrespective of the value of the land, if the legacies have taken effect, for such is the charter by which he holds, and taking title under it with notice, as the defendants did, is an implied assent to those terms, and a promise to pay in accordance therewith. It is evident that this is as the testator intended it should be, for it is manifest that his purpose was to charge these legacies upon the land exclusively, in exoneration of his personal estate, for when he made his will, all the persons whose “ heirs” were to take those legacies were living, and he might well have contemplated that they would long outlive him, as they all did, Mrs. Roberts more than twenty-four years, and that in the meantime his personal estate would be distributed to those entitled, leaving nothing
The orators, therefore, are entitled in equity to have and receive from the defendants the full amount due them under the will, irrespective of the present value of the land.
As to interest, the general rule is that legacies out of personal estate draw interest after one year from the testator’s death. This is taken from the practice in the ecclesiastical courts, where a year is given to the executor to collect the assets, and he cannot be called upon to pay before that time, because he is not supposed to know until then what fund there is to pay with. In conformity to this practice, courts of equity have proceeded in the case of legacies out of personal estate. But in the case of legacies charged on real estate only, with no day of payment fixed, Lord Redesdale says that interest is charged from the death of the testator or not at all. Pearson v. Pearson, 1 Sch. & Lef. io. But of course the legacy in question does not carry interest from the death of the testator, for it was not then in esse, as you
The bill does not seem to have been drawn with a view of obtaining a decree in -personam against the defendants, and it is not necessary for the orators to have such a decree if they could, for the land is undoubtedly worth enough to pay them in full.
, The court below directed that a trustee be appointed to sell the land to pay the decree. This was well enough; hut as the legacy is a lien on the land in the nature of an equitable mortgage, we think it more according to our practice to enter a decree of foreclosure in common form, and it is so ordered. Let the orators recover costs in this court and in the court below.
Reversed and remanded.