134 Mass. 543 | Mass. | 1883
If it be assumed, as contended by the plaintiffs, that the sums of $1000 and $4000 directed to be paid to Mary B. Smith and Elihu Smith, trustee, respectively, are to be considered as legacies, which the executors would be bound to pay from the general estate of the testator, in case, for any reason, the same could not be realized from the land devised to John M. Smith, or from John M. Smith personally, still it by no means follows that the giving of the bond by the executors for the payment of all debts and legacies would have the effect to vest in John M. Smith an absolute title to the land, which he could convey to a bona fide purchaser, free and clear of the lien for the legacies. Such a bond is a substitute for the estate of the deceased, and conclusively admits assets sufficient to pay all debts and legacies which the executors are bound to pay. But if a testator expressly charges a legacy on a particular piece of land, which is specifically devised subject to the charge, or if he imposes on a particular devisee the personal duty of paying the legacy, as the condition on which he is to take a specific devise of land, in such case the giving of a bond by the executors with condition to pay all debts and legacies will not have the effect to discharge the lien on the land which is created directly by the will itself, or to supersede the duty of the devisee to pay the legacy. It is, at most, but a supplementary obligation and security. The burden and duty will still rest primarily on the estate devised, and on the devisee; and only secondarily on the general estate of the testator, and upon the sureties on the executors’ bond. Nor is the case different where such devisee happens to be one of several executors. The burden and duty still rest on him in his capacity as devisee, and upon the particular estate which is devised to him. The liability of the executors as such, if it exists at all, is only secondary. The bond is not a substitute for the particular parcel of land devised, or for the personal duty of the devisee. Such a case is quite different from one where the legacies are payable only from the general estate of the testator, as in Clarke v. Tufts, 5 Pick. 336, 340.
In the present case, the land devised to John M. Smith on condition of his paying the sums in question became thereby charged with the payment of them. These sums being distinctly mentioned in the will, a purchaser of the land must see that the
At the time the bond was given, the sureties knew, or must be deemed to have known, that the payment of these sums rested primarily on the land, and on the devisee thereof, and that the land could be followed into the hands of a purchaser. They had a right to assume that a purchaser would see to the proper application of the purchase money. So, on the other hand, at the time the plaintiffs took their mortgage, they must be deemed to have been aware of all these facts, and to have understood that the liability of the general estate of the testator, and the obligation of the sureties upon the bond, were at most but supplementary, and that the sureties, if compelled to pay these sums, would be subrogated to the right of the legatees to follow the land.
Under these circumstances, the plaintiffs have no equity to compel the legatees to seek payment from the residuary estate, or from the sureties on the bond, rather than from the land. It is, therefore, unnecessary to consider at all the important question whether these sums could in any event be deemed legacies, in such sense that they would be payable by the executors, and so be covered by the bond, in case the devised land and the personal responsibility of John M. Smith should prove insufficient for their payment. Bill dismissed.
