5 Pa. 351 | Pa. | 1847
It is admitted by the defendant’s answer, as indeed it could not, with any show of reason, have been denied, that the sum of $7250, bequeathed by the testator to be paid to his children in the proportions and' at the time mentioned' in his will, is a charge upon the lands devised to David. It is also admitted that the latter, in pursuance of the will, took possession of the lands devised, and still continues in the seisin and occupation of them. Upon these facts alone, it is not to be disputed that, having taken the land cum onere, he is bound to pay to his brothers and sisters their several legacies as they respectively fall- due, and this liability may. be enforced by a proceeding in the Orphan’s Court, such as has been instituted here, under the statute giving the specific remedy. By the terms of this will, not only is a lien created-, on the land devised, but the devisee, immediately upon his acceptance of it, became personally responsible to the legatees for the amount of their respective legacies. As is said in Glen v. Fisher, 6 Johns. C. R. 33, a case which cannot, in this particular, be distinguisbed from the present, by acceptance, the devisee becomes absolutely bound for the legacies, and cannot set up any condition
But if we put out of view the personal responsibilities of the devisee, and treat this as a case in which a chancellor would marshal assets as between creditors, devisees, and legatees, it will be found the defence set up here is equally unavailing. In this aspect, the legacies must be regarded as demonstrative, and, in some sort, partaking of the nature - of specific legacies, as charged upon a particular fund specially appropriated to their payment; Ward on Leg. 21. This fund is the devised land which, it is not denied, is sufficient for the payment of the balance of the testator’s debts, and the legacies bequeathed. The established order of the application of the several funds liable to the payment of debts is definitively settled by adjudged cases, and is thus generally stated by text writers upon this subject. 1. The general personal estate not expressly, or by implication, exempted. 2. Lands expressly devised to pay debts. 3. Estates descended to the heir. 4. Devised lands, charged with the payment of debts generally, whether
Decree reversed, and it is ordered that the record be remitted t'o the Orphan’s Court, with directions to proceed.