16 Pa. 275 | Pa. | 1851
The opinion of the court was delivered June 12, by
— As is truly said in Walton v. Walton, 7 Johns. Ch. Rep. 258, and elsewhere, in applying the doctrine of ademption, it is sometimes extremely difficult to perceive the distinction attempted to be kept up between specific, demonstrative, and general pecuniary legacies. Many of the English cases rest upon points of difference so refined as often to baffle the most microscopic examination ; a subtlety referable to an anxious desire to treat bequests as general or demonstrative, wherever the slightest pretext can be
The principle of construction will be found the same where a gross sum is charged upon or directed to be paid out of the proceeds of realty. If an intention is apparent to give the legacy at all events, though with reference to a fund for its payment, the legatees’ remedy is not as of course confined to the fund adverted to. This, indeed, is often considered as merely auxiliary in aid of the personal assets. Of this class is Savile v. Blacket, 1 P. Wms. 778, where A, having a power of charging lands, (which power he afterwards destroyed) bequeathed to his • child £1000 out of the lands, and also £1000 charged on the personal estate. The power to charge having failed, the question was whether the first bequest was not specific, and, therefore, a failure. But Lord Macclesfield, on the ground that the testator intended to give two sums of £1000 each, though one was directed to be paid out of the land, decreed that the failure of the modus 'appointed for payment should not defeat it. This case can only be reconciled with prior and subsequent determinations, on the foot that the reference to the land chargeable under the power was for convenience, and secondary to the main intent. In remarking upon it, Mr. Roper, in his treatise upon legacies, says "the principle of the decision was the intention of the testator not to make the legacy dependent on the due execution of his power, but to bequeath a sum equiva,lent to what he was entitled to charge on the estate, with reference to that estate as the primary fund for the payment of it; and that such appeared to the court to be the testator’s design, upon the construction of the whole will. It is also said that Fowler v. Willoughby, 2 Sim. & Stu. 354 was ruled on the same principle. It was a bequest of £1400, to be raised, for the benefit of the testator’s two children, by the sale of an estate for which he had, just before, contracted. After his death, it was foun'd the contract could not be enforced against his assets; and the question arose, whether the legacy could take effect, though it could not be raised in the manner directed by the will? Sir John Leach, declaring it was neither legatum nominis nor legaium debiti, but a pecuniary legacy with a particular security, directed that it should be paid out of the testator’s general estate, as a demonstrative legacy.
Wilcox v. Rhodes, 2 Russ. 452, is another instance of the same
This reasoning, it will be perceived, is in accordance with that which governed the determination in Creed v. Creed, and will, also, be found to harmonize with many other cases in the books, some of which I shall have occasion more particularly to notice. Indeed, I think an examination of the authorities, English and American, will show that wherever an intent is exhibited to make distribution of the value of lands, either by means of a sale and division of proceeds, or by the charge of a sum in numero, payable by the devisee of the land as a quasi partial purchase of the estate devised, the bequests are always treated as specific, and, consequently, liable to be adeemed by an alienation of the land in the lifetime of the testator. I may add, this is also true where the only gift of a legacy is found in the direction to pay it out of the land devised : 2 Jarman on Wills 593, and the cases there cited; or, as it is elsewhere expressed, where a testator charges his real estate with a sum of money, and then bequeaths the sum so charged: Dickin v. Edwards, 4 Har. 273; though it is commonly otherwise where there is a distinct bequest, afterwards generally charged on the lands of the donor.
Among the earlier illustrations of these rules of construction is an anonymous case, reported in 2 Freem. Ch. Ca. 21. It was there ruled, that if a man gives a legacy and charges it on Black
In Grittins v. Steele, 1 Swan. 24, a legacy of ¿67000 was charged upon certain freehold and leasehold estates, devised in trust to sell the same and pay the legacy out of the purchase-money. The testator afterwards sold some of the devised estates, and the sum produced by a sale of the remaining portion, after his death, was insufficient to pay the legacy. On a question made, whether the legatee was entitled to come in on the personal assets for the balance, Lord Eldon decided the personal estate was not subject to pay any part of it. “Legatees,” said he, “as volunteers, are not entitled to resort to any other than the particular fund the testator or the law has assigned.” “Entertaining no doubt that the intention of the testator has been frustrated by a subsequent sale of a part of his estates, I am not authorized to advert to that fact as affecting the construction of the will. I am bound, as a judge, to assume that the testator supposed he should leave, at his decease, freehold and leasehold estates sufficient for the payment of the legacy of ¿67000; and I protest as being understood to give my judgment on the ground of the subsequent sale. My duty is to apply the funds which, at his death, are applicable, by the operation of the will, to the payment of this legacy. If they are insufficient, the court, whatever may be the hardship of the case, cannot supply other funds.” I have cited
Amesbury v. Brown, 1 Vesey, Sen. 481, is a striking instance of the same class. The testator devised his estate generally, after payment of his debts, but, in this part of the will, said nothing about legacies. Then followed bequests to his four sisters, and, in the same clause, he added, “ all which legacies I mean shall be paid out of my freehold estate at N.” It was insisted, for the devisee, that a legacy generally given is payable out of the personal estate, and though afterwards made a charge on the real, yet, as the heir is not likely to be disinherited, the court looks to it that unless the personalty is expressly exempted, the legacies shall be payable out of the latter assets. But Lord Hardwicke answered, “ This is not within the common rule, not being a common charge on the real, in aid of the personal, but an express encumbrance upon that estate; an express gift of the legacy out of the real estate, which, wherever done, the real must bear the burden.
Then followed Reade v. Litchfield, 3 Vesey 475. The will directed a term to be raised out of- the testator’s real estate, upon which he charged several sums in favor of his children nominatim. It was held, that as he intended these as a provision for his children, and a charge upon his real property by way of distributing it among his family, the personal estate was not applicable to their payment.
Spurway v. Glynn, 9 Vesey, Jr. 483, is to the same effect. There was a devise of estates in certain counties, (except the estate called Portledge,) subject to debts, funeral and testamentary expenses, and pecuniary legacies thereafter given. Then followed a devise of the Portledge estate, in trust to demise, sell, or mortgage the same, or out of the rents and profits, to make up the sum of ¿6400, and pay the same to the plaintiff; and after payment thereof, and subject thereto, upon trust for J. P. for life, with remainder over. The testator then made specific bequests of chattels, and gave some pecuniary legacies, and directed the residue of his personal effects to be turned into money and applied in payment of his debts and legacies, in exoneration of his real estate; and if any thing remained of these proceeds, he gave it to the devisees of the first-named estate. Upon the intention of the testator, it was decreed by Sir William Grant that the ¿6400 was a charge exclusively upon the Portledge estate, with the observation,' “There is no direct bequest to the plaintiff of ¿6400, but that sum is directed to be raised out of the particular estate and paid to him; and the general words at the close of the will clearly refer to the first devise, and were intended to exonerate the estates there charged.”
These determinations but follow the earlier case of Ward v.
I shall notice but three other English cases, which, though occurring under wills containing directions to sell, proceed upon the same principles. They are, indeed, in that respect, like Gittins v. Steele. The first of them is Brydges v. Phillips, 6 Vesey 567. The devise was of all the testator’s lands, in trust to sell so much thereof as might be 'deemed expedient, and with the proceeds, in the first place to pay debts, and in the next place 'to raise and pay to his half-sister ¿61000 ; and, in the last place, to pay to his wife ¿64000; with a devise over of all the residue of his unsettled real estate. Sir William Grant decreed these legacies a charge exclusively on the land devised, saying, “ Legacies given, payable out of the real estate, must be paid out of the real estate, for there is no other fund. They have no existence but by the will, and must come out of the fund the testator points out.”
The next ease, Hancock v. Abbey, 11 Vesey 179, is very decisive of the grounds of distinction I have ventured to deduce from the authorities. It Was a devise of all the testator’s lands, upon trust to sell so much of the same as should be sufficient for after-mentioned purposes, and to apply the proceeds to discharge a mortgage of ¿63000, and to raise the sum of ¿62000, which he bequeathed to his two daughters, to be invested for their benefit; his wife to have the usufruct of the residue of his real estate during life, and after-wards to go to his said daughters in fee. The residue of his personal estate, after payment of his debts, legacies, and funeral expenses, was given to his wife. Upon a question made whether the personal estate ought not to be called on for payment of the two sums of ¿63000 and ¿62000, in relief of the realty, it was insisted for the daughters, that a general charge on real estate, followed by a residuary bequest of personalty, does not exonerate the latter estate; and besides, by this will, the personal assets were expressly subjected to debts and legacies. But the master of the rolls answered, he could not consider this as á general legacy; for the sum is given only as a part of the produce of the real estate. The daughters, therefore, could claim it only in that shape.
The remaining case, drawn from the English Chancery, is Page v. Leapingwell, 18 Vesey 463, noticed in Creed v. Creed. Without
To these overruling authorities it is scarely necessary to add any thing further than our own recent cases of Cryder’s Appeal, 1 Jones Rep. 72, and Balliot’s Appeal, 2 Harris 451. The first of these arose under a direction to sell and apply the proceeds of realty in discharge of certain legacies bequeathed; and the last was a devise of land, subject in the hands of the devisees to the payment of a certain aggregate sum, given by the same will to named legatees. In both it was ruled the legacies were specific, and in the latter that they were adeemed by sale of the land charged, by the testator in his lifetime. Although, in delivering the judgment in the last case, some stress is laid upon features peculiar to the will, it is obvious both determinations are based on the doctrine I have brought to view, that although a legacy is not necessarily specific, because referred to a particular fund as a means of payment, yet, if it be not only charged on real estate, but deducted from its value in the hands of the devisee, the legatee is confined to that fund alone.
Downer v. Downer, 9 Watts 63; S. C. 9 Barr 302; Lobach’s case, 6 Watts 167; Shickler v. Shaeffer, 5 Barr 440; Read v. Read, (in note to last case;) Hoover v. Hoover, 5 id. 351; Miltenberger v. Schlegel, 7 id. 241; Mohler’s Appeal, 8 id. 27, and Schaeffer’s Appeal, id. 38, all point in the' same direction. They all proceed upon the ground that a legacy directly charged upon land devised is payable out of the land alone, or personally by the devisee, who by accepting the thing devised makes himself responsible ; and that the remedy is in the Orphans’ Court, against the devisee, or other holder of the estate, without reference to the executor named in the will, who, as such, has no interest in the subject of controversy.
By the will before us, the legacy here sought to be recovered is directly charged upon the land devised to Eli Walls, to be paid by him as devisee, in respect of the devise, and as a means of distribution among the testator’s children. It was regarded by the devisor as the sole source of payment, and therefore, according to the cases I have passed in review, the sale of the principal thing by the testator destroyed its accessory, the legacy. -The sale may have frustrated the intention entertained in favor of the plaintiff below, but however we may regret this, we can but repeat the declaration of Lord Eldon, in Gittins v. Steele, that it is not in the power of the court to supply other means of payment than those pointed to by the creator of the intended gift.
Something was said, in the argument, of a supposed efficacy found in the ninth clause of the will, to save the legacy in question. But it is perfectly obvious that the words there used, “ after
As our conclusions are adverse to the plaintiff below, the judgment rendered on the case stated, by the Court of Common Pleas, must be reversed, and judgment entered here for the defendants below.
Judgment accordingly.