Dodge v. . Manning

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 300 One of the reasons, if not the principal one, assigned by the Chancellor for a decree dismissing the bill as to the respondents, is, that the legacy to recover which the bill was filed, had been paid; and this conclusion is supposed to be justified by the lapse of time and the evidence of one of the witnesses. If I do not misapprehend the effect of the will, no presumption of payment can be derived from the lapse of time. It is true that according to one clause in the will the legacy became payable in one year after John B. Borst attained his majority, which was in 1820; but it was directed to be paid by Borst "out of the estate" given to him, and on looking at the whole will it is entirely clear that he was not to have the estate until the death of his grand-mother, the testator's widow, which did not occur until 1832. It seems to me, therefore, that the legacy did not become due until the period last named, and it is not pretended that the time which elapsed between that period and the filing of the bill, would warrant in the slightest degree a presumption of payment. *Page 301 As to the evidence taken on this point, we are all of opinion, that there was nothing in it to justify the conclusion at which the Chancellor arrived. The decision of the Vice Chancellor charged all the defendants with the payment of the legacy and costs, without any discrimination founded upon the equitable right of the respondents to insist, that the defendant, John B. Borst, and the real and personal estate of the testator in his hands, should be first charged, and that a resort should not be had to the estate purchased by them, until the remedy against Borst should first be exhausted. In this respect I am of opinion that the Vice Chancellor erred. It is true, that by the provisions of the will, the legacy in question became an equitable charge upon all the real estate devised to Borst, of which that purchased by the respondents respectively, at the master's sale, is a part. But the devisee, by accepting the real and personal estate devised and bequeathed to him, became personally liable for the payment of the legacies which the will directed him to pay. He is therefore primarily liable, and the remedy should first be exhausted against him and the real and personal estate of the testator remaining in his hands, before the respondents should be charged in respect to the real estate purchased by them. If they had purchased expressly subject to the payment of the legacy, that of itself might have made the estate in their hands directly and primarily chargeable. But I concur with the Chancellor that there is nothing in the evidence to justify the inference that they purchased in that manner. The admission in their answer, as well as the evidence, merely shews that they had notice of the existence of the legacy. If the decree of the Chancellor, therefore, had modified that of the Vice Chancellor in accordance with these views, it would, in my judgment, have been a correct disposition of the case. But as the Chancellor's decree directs the bill to be dismissed, as to the respondents, with costs, it should be reversed, and a decree should be entered charging the lands purchased by them with the payment of the legacy and costs of suit, so far as there may be a deficiency after the appellant *Page 302 shall have exhausted her remedy against the defendant, John B. Borst.