6 Watts 167 | Pa. | 1837
The opinion of the Court was delivered by
The court of common pleas seem to have considered the several devisees of the lands, under the will of Andrew Lobach, as exempt from all personal liability, to pay the moneys or legacies charged thereon; and accordingly to have made their decree upon the principle that the lands alone rvere liable for the payment thereof. In this, however, we think the cotut was mistaken; because it is evident from the whole tenor of the will, that the testator, not only intended to charge the several tracts of land with the amount of money directed by him to be paid thereon; but, likewise, in case of acceptance, to charge the devisee or devisees of each particular tract with the same, as the price thereof set upon it by himself. This then being the design of the testator, as manifested by the terms of the will, the devisees can pretend no
Here, however, in the case before us, the testator has not only directed the moneys to be paid absolutely, and at all events, by the devisees, thereby charging them personally with the payment thereof, but he has expressly given estates in fee to them, in their
There is, however, another aspect in which this case naturally presents itself, which shows very clearly, that the testator intended to make the devisees of the lands personally responsible; and that in law, justice and equity, they ought to be so held, after having accepted thereof. The testator had nine children in all; the devisees of the lands were four of the number; now it is perfectly certain from the provisions of his will, that he intended all should participate in his estate; and it is probable that he may have designed to distribute it equally among them; indeed, it is certain that he did, if the estimate in money put on the lands by him, was equal in amount to what he considered their full value. But, whether it was so intended by him or not, it is clear, that whatever he thereby gave to each of his children, he intended that he or she should have and receive it without fail. But it is obvious, that his design hi this respect, might readily be defeated, unless the devisees of the lands were to be held personally chargeable with the payment of the moneys directed to be paid by them. For, suppose the lands should happen to fall in price before the moneys were paid, the devisees thereof, might refuse to pay, and suffer the lands to be sold, after having been in the possession and enjoyment of them for years; and to make the matter still worse for the other children or legatees, after having wasted or suffered them to fall into a state of dilapidation, so as to render them of less value greatly, than the amount of the moneys directed to be paid for them. By this means, the other children would be the losers, while the devisees may be considerable gainers, perhaps to the full amount of all the testator intended to give them; or at any rate, they had it in their power, no doubt, when they took the lands, to have sold them for the amount of the valuation put on them by the testator, as he could have no interest in valuing them above what they might then have been sold for; and in this way have realized the full amount intended for them by the testator, while the other children have no alternative left to make choice of. If the lands fall greatly in price, they must lose, but can gain nothing though the lands should increase in value to double the amount of the testator’s valuation. In this latter event, the increase of value emúes exclusively to the benefit of the devisees of the lands, if they still continue to hold them. It is manifest, therefore, if the lands only are to be held liable for the payment of the moneys directed by the testator to be paid to the other children, that it is placing all the advantages on the side of the devisees, by permitting them to keep the lands, however much they may increase in value, upon paying the moneys mentioned in the will, but to give them up at any time they please if they should decrease in value, and the devisees find it not to be
It has, however, been suggested, that if the devisee is to be held personally responsible, the land cannot be considered as bound. But surely, the two securities are not at all incompatible with each other; and there is no reason why both should not be bound for the payment of the money: equity certainly requires, that the land should be, and the implied engagement of the devisee, arising from his acceptance of the devise, is sufficient to hold him so in person. In England, the vendor of land, who has divested himself of the legal title by making a conveyance of it to the purchaser, and taken his bond or note for the payment of the purchase money, by which the latter becomes personally bound for it, has also, in equity, a lien upon the land for payment of it. See Sug. Vend. 388, et seq. and the cases there referred to in the margin. But the claim of the legatee, in equity, to hold the land bound, as well as the person of the devisee, is still stronger than that of the vendor, who has voluntarily, by an act of his own, relinquished all his right and title to the land, and at the same time, in consideration thereof, accepted of a mere personal security; because the legatee has parted with nothing, that he had any right to retain as a security: and, although the devisee may be said to be invested with the legal title to the land, under and by virtue of the will, yet that is liable to be defeated, unless he afterwards pay the money. The payment of the money may be considered either as a limitation, or a condition annexed to his gift. Suits brought in chancery by legatees against the devisees of thé lands, to recover the legacies ordered by the testator to be paid by the devisees, have been proceeded in generally against the lands, on the ground of their being liens thereon; and this may be one reason why little or nothing is said in them about the personal liability of the devisees. And this, also, goes to prove, if an action will lie against:jthe person of the devisee, as I shall shpw, I think presently, that it will, that the legatee may proceed on the liability of the land, or that of the person of the devisee at his pleasure; or on both here in the same action at law, as we have no court of chancery. And accordingly, Chief Justice M’Kean, in Ruston’s Executors v. Ruston, 2 Yeates 61, where the devisee of the lands was held personally liable in an action of debt for the money charged on the lands, after having accepted them, by taking possession thereof, says, “ I consider the 3000 pounds as an equitable, if not a legal charge, which affects and binds the real estate devised to the defendant.”
It is, however, intimated very distinctly in these cases, that an action against the person of the devisee of the land, will not lie for the recovery of the legacy, unless he has expressly promised to pay it; and it is said, that the action, though in debt, is to be regarded as a proceeding in rem, wherein the judgment for the plaintiff must be de terris. The decision of the supreme court of New York, in Livingston v. The Executors of Livingston, 3 Johns. 189, would rather seem to have been the ground or authority, upon which this opinion was expressed, without, most likely, a very particular examination of the question, as it was not directly presented to the court for their determination in any of those cases. But it is far from being certain, that the supreme court of New York were afterwards satisfied themselves with their decision in Livingston v. Livingston; because, in Beecker v. Beecker, 7 Johns. 106, when the subject came up again before them, they declined giving an opinion upon the same question; and say, “ whether a suit at law will lie against the devisee or terre-tenant, while in
In England, legacies payable out of the personal assets, were, if not originally and first of all, certainly at a very early period, and long before the establishment of a court of chancery, cognizable in the spiritual courts. But afterwards, when these courts ceased to have jurisdiction of them, chancery claimed .and exercised it; and, therefore, little appears in the books of the common law courts, entertaining suits for the recovery of such legacies, unless during the time of the commonwealth, when the spiritual courts were deprived of all jurisdiction over such matters. Nicholson v. Sherman, 1 Sid. 45, 6; S. C. T. Raym. 23. But in regard to legacies charged on lands alone, the spiritual courts never did, at any time,
It was material thus to show that the devisees in this case became personally liable by accepting the lands respectively devised to them, for the amount of moneys charged thereon; because we are of opinion that the judicial sales made of the lands of Peter, Joseph and John, respectively, discharged these lands, so sold, from all future liability to the instalments that were to become payable subsequently: but the lands having been sold for less than the estimate or valuation put on them by the testator, and Peter, Joseph and John being each liable personally to pay the full amount of the testator’s valuation on their respective lands, can claim no part of the moneys arising from the sales thereof, until the other children and legatees of the testator shall have received out of the fund so raised, an amount equal to that charged upon the lands in their favour respectively, according to the valuation of the testator. If, however, it were so, that they had not become personally responsible, then perhaps it would have been right that they, or those claiming under them, should have come in for an equal proportion of the moneys made by the judicial sales. But that not being the case, and the amount of the sales considerably less than the testator’s valuation, and the devisees of the lands being likewise in default, and by this means the occasion of the loss, it is obvious that
But it has been argued by the counsel for the creditors of Peter Lobach, that the sale made by the sheriff, of his land, did not discharge it from future liability for those instalments of the money charged thereon, which were to become payable, according to the direction of the will, subsequently thereto: that the sale must be considered as having been made subject to those subsequent payments in the same manner that it would have been liable afterwards to the payment of subsequent quit-rents accruing thereon, had it been subject to such a reservation as was decided in Share v. Anderson’s Executors, 7 Serg. & Rawle 63. This very point, however, was ruled otherwise by this court in Hellmon v. Hellmon, 4 Rawle 440; where it was held, that the lien of a legacy charged upon land and payable by instalments, as in this case, was discharged by a judicial sale of the'land, though some of the instalments, for which that action was instituted against the terre-tenant, did not become payable according to the terms of the will, until after the sale. The cash amount of the whole legacy is susceptible of being ascertained with certainty; and, if it be the first lien, must be first paid out of the moneys produced by the sale. If any part of it has become payable before the sale, the amount of such part is to be ascertained by adding interest at the rate of six per cent per annum to the principal, so due, from the time it became payable to the time of the sale; and the instalments which have not as yet become payable are to be reduced to their cash amount or value at the same rate, according to the rule of rebate and discount.
The personal liability of the devisees having been shown, it removes at once the objection to 'allowing the principle of set-off in adjusting and distributing the estate agreeably to the directions of the will, which presented itself to the minds of the court below; and therefore, whatever may be coming to Peter, will belong to his judgment creditors, who acquired liens upon his land before the sale thereof, and before he assigned to Gilbert Searight, in preference to the assignee.
It has been claimed also, that Peter and Samuel Lobach were entitled, upon the death of the testator, to have the' instalments thereafter directed to be paid by them respectively, postponed on account of the payments made to the testator in his lifetime; so that Peter, having paid 1800 dollars to the testator, was not bound to pay any thing more until five years «ifter the death of the testator, when his first payment, which was only 200 dollars at most, as is contended, (200 dollars of it having been paid to the testator,) became due; and Samuel, having in like manner paid 207 dollars, was not liable to pay any thing more for three years after the death of the testator. In this there does not seem to be even the show of equity; because bothPeter and Samuel were in the full and exclusive
The money being in the court below for distribution on the 1st of August 1835, a cash valuation, at this date, of the whole estate of Andrew Lobach, deceased, the testator, after payment of his debts, made upon the principles laid down above in the opinion of the court, becomes necessary, in order to ascertain the amount that would then have been coming to each of the nine children, the devisees and legatees named in the will, in case the devisees of the lands or their estates were solvent.
Amount that came to the hands of Abraham, co-executor of Peter, for which Peter has taken credit in his administration account, without charging himself, including interest thereon to the 1st of August 1835, 252 91
Error in taking credit for 75 dollars paid Martin Fiches instead of 75 cents, for one day’s work, and the interest thereon to August 1st, 1835, - 121 09
Judgment against Henry Fickle, with interest to same date, ------ 129 01
Secondly. — Real Estate. Peter Lobach’s land, valued to him by testator in his will, at 7860 dollars, less 1800 dollars paid to the testator before making his will, which was used by the latter in his lifetime, and therefore can form no part of the estate disposed of by his will, - - - 6,060 00
Add for interest, calculated at the rate of six per cent per annum on all the instalments payable anterior to the 1st of August 1S35, and deducting therefrom the discount at the same rate on .all the subsequent instalments of the residue of the valuation made by the testator, - 2,651 16
Joseph and John Lobach’s land, valued by testator at - - - - $10,480 00
Add on account of interest, as in Peter’s case, ----- 1,197 44
11,677 44
Samuel Lobach’s land, valued by testator at 3210 dollars, less 207 dollars paid to the testator before making his will, and used by him in his lifetime, and of course formed no part of his estate, 3,003 00
Add interest, ascertained as above, in Peter’s case, . . . . 454 04
3,457 04
Amount of personal and real estate, according to a cash valuation thereof, on the 1st of August 1835, $27,377 78
Deduct debts of the estate:
First. — Amount paid as appears by the first administration account of Peter, - $2,850 45
Amount paid by second administration account of same,
Debts paid by Peter since the settlement of his account, including interest to Augustlst, 1835, - - - 439 68
Debts remaining unpaid, with, interest thereon to Augustlst, 1835, - - - 1,919 77
-$11,487 81
Residue remaining to be distributed, - - $15,889 97
Add 100 dollars, advanced by testator to his daughter Elizabeth, which he has directed to be deducted from her share, - - - - -100 00
Divided by 9, the number of children, - $15,989 97
Gives for each child’s share 1,776 dollars 66| cents, except Elizabeth, 100 dollars less, 1676 dollars 66J cents.
Eight shares at 1,776 dollars 66§ cents, equal to - - $14,213 30§
Elizabeth’s added, - - 1,676 66§
Shows the amount that would be coming to the nine children, were the devisees of the lands able to pay, $15,889 97
Statement showing the amount of Peter’s accountability, chargeable with amount of personal estate, as per administration account of 1825, $3,029 13
Error in crediting him with 75 dollars, paid M. Fiches, 121 09
Amount of credits obtained for debts paid by Abraham, his co-executor, with moneys of the estate received by him, with which he has omitted to charge himself, 252 91
John Lobach, _ . _ - - 1,409 47
Amount of money, with interest thereon, received from Joseph Lobach, - 666 65
Amount of money, with interest thereon, received of Samuel Lobach, - 692 33
Amount of the valuation of Peter’s land, including interest, and deducting discount, as stated above, 8,711 16
Amount of debits, $14,882 74
By first account, - - . - $2,850 45
By second account, including interest to August 1st, 1835, - ' - - 6,390 77
By payments made since, .including interest, - - - - 439 68
- $9,680 90
Balance in the hands of Peter Lobach to be accounted for, ------ -$5,201 84
Deduct amount of money made by sale of his land, - 3,500 00
Balance against him, - - - - - $1,701 84
Deduct this balance from what would be coming to him as his share, if Joseph and John were good, - 1,776 66J-
This would be coming to Peter or his judgment creditor if Joseph and John were solvent, but he must bear his proportion of the loss arising from the deficiency of their estate and inability to pay the whole amount for which they are liable, which, as it will be seen, will more than merge this 74 dollars 82f cents. - $74 82§
Amount for which Joseph and'John are accountable, $11,677 44 Credit them:
By moneys paid Peter, - - - $2,076 12
By sale of their land, - 5,086 97
--$7,163 09
Balance against them, ... -$4,514 35
Deduct from this balance what would be the amount of their shares, in case of solvency, - 3,553 32h
Joseph and John being insolvent, here is a loss, which must be divided equally among the seven children, of 961 02
This loss to each of the six, is one-seventh, - - 137 29
The one-seventh of the loss by Joseph and John, deducted from Peter’s share of - $1,776 66i
137 29
Reduces it to - - - $1,639 37
Being $62 46 more than the balance shown above; so that there is nothing coming either to him or his creditors.
It only remains now to ascertain the amount of the available fimds, and after deducting therefrom an amount sufficient to discharge the debts of the testator still unpaid, to divide the residue among his six children, excluding Peter, Joseph and John.
Amount of sale of Peter’s land, - $3,500 00
Amount of Joseph and John’s land, 5,086 97
Amount for which Samuel is accountable,
--$11,351 68
Deduct amount of debts unpaid, - - - 1,919 77
Residue to be distributed amoung the six children, that is, Abraham, Samuel and the four daughters, - $9,431 91
To do this, add for advancement to Elizabeth - 100 00
Divide by ----- - 6)9,531 91
Each of the six children, except Elizabeth, entitled to $1,588 65
Elizabeth to 100 dollars less, say - 1,488 65
Five shares at $1588 65 each, equal to $7,943 35
Elizabeth’s share, $1488 65, added - 1,488 65
Amount to be distributed among the six children, - $9,431 90
The decree of the court of common pleas is hereby reversed and annulled: and this court doth decree, order and adjudge, that the money remaining in the court below be paid to Joseph Taylor, administrator, with the will annexed of Andrew Lobach, deceased, the testator, to be distributed by him, after payment of the debts of the testator, among Abraham, one of the sons, and the four daughters of the testator, or their legal representatives — Samuel, another son, having his own portion, and more, in his own hands, will have to pay Abraham and his four sisters, instead of receiving any part of the moneys arising from the sales of Peter, Joseph and John’s lands.
Decree accordingly.