155 Mich. 295 | Mich. | 1909
The position of appellees is stated in the following language taken from the brief:
“ In the former trial I claimed, and I again claim, that, when Thomas Stephens accepted the property under the will, he took it charged with the conditions imposed by the will, but his position was not the same as if he had entered into a written agreement with his father or his mother by which he agreed to pay a certain sum of money and furnish certain products of the farm, but, so far as the performance of the conditions is concerned, he was personally liable upon a contract, either express or implied, and the land was charged with the performance thereof so long as Fannie Stephens lived. At the death of Fannie Stephens, if there were any portions of the annual payments unpaid, the estate of Thomas Stephens would be liable for the same unless barred by limitation or other defense. If the lien continued beyond the life of Fannie Stephens, in case of unpaid installments, her representative might proceed in equity to enforce the lien.”
This statement is in accord with the rules of law, gen-, erally adopted, in cases involving facts like those presented in the case at bar and with the opinion of this court in Stringer v. Stevens’ Estate, 146 Mich. 181 (8 L. R. A. [N. S.] 393). The brief proceeds:
‘' So far it would be analogous to the case of a promissory note secured by real estate mortgage. But, when suit is brought upon a promissory note, secured by mortgage, and judgment is taken in such suit, and the same paid and satisfied, then the mortgage lien in any event is thereby terminated.”
First. The words employed by the testator, after reciting the charge in favor of his wife imposed upon his devisee, are: “All the above to be and remain a lien upon said above-described farm as long as my said wife shall live;” and the devise is made “upon this express condition that he furnish to my beloved wife,” etc. No other provision fpr the wife is made in the will. It is clear from the nature of the charge imposed that it was intended by the testator to secure to the wife subsistence during her life. There may be doubt whether, strictly speaking, the provision made for the wife should be called an annuity, a question which is sometimes of considerable importance; but it is in essence an annuity, expressly charged upon the corpus of the particular land devised to the son, payable annually, and measured by the duration of her life. See 2 Am. & Eng. Enc. Law (2d Ed.), p. 390. I think the express provision for a lien should be held not either to limit the duration of a lien which in the absence of the express provision would be raised by law or to expire at the death of the annuitant. It is more reasonable to say that it was given to secure payment of the sums accruing during her life and for that purpose may be enforced after her death.
Second. The whole demand for unpaid money (for nine years) was presented as a claim against the estate of the devisee. A judgment for the entire amount, with interest, was rendered. The case coming to this court on error, it was held, first, that although the demand grew out of a specialty, — a will — it was nevertheless one properly
The decree of the court below should be reversed, with costs of both courts, and a decree entered in this court requiring payment within four months from the date of the decree of the installments which came due June 7, 1892, June 7, 1893, and June 7, 1894, each installment being $100, with interest at the rate of 6 per cent, per annum from the dates when they respectively became due. In default of payment, the decree should provide for a sale of the premises after the manner of foreclosure sales under decrees of a court of chancery.