Loder v. . Hatfield

*97 Folger, J. The legacies in question in this case are charged upon the lands • devised to the testator of the defendants. The devise of the lauds was expressly upon certain 11condi-tions and proviso and it is again stated in the will, that the devise of the homestead farm to the son Jonathan Avas on “ conditions and proviso before mentioned.” It is plain that within these conditions and proviso fall the legacies to the several daughters of the testator, among which are those now in controversy. A devise of land to one, on condition that he pay the legacies given by the will, make them a charge thereon in equity (Birdsall v. Hewlett, 1 Paige 32 ; Harris v. Fly, 7 id., 421), unless there is something in the Avill to sIioav a different intention (7 id., supra), Avhich is not the case here. Though by accepting the devise, the devisee became personally liable for the payment of the legacies, yet the lands devised remained in equity as security for the payment. (Kelsey v. Western, 2 N. Y., 500, 508.) The question whether those legacies vested in the legatees, in their life-time, is not so easily disposed of. There are some considerations arising out of the provisions of the Avill, and the circumstances in which the legatees were placed by it, which tend to sIioav that the legacies did not vest. Thus it is plain that it was the intent of the will that the daughters of the testator, to whom these legacies were given, should remain upon the homestead farm, which was devised to the son, receiving their maintenance from it and yielding their services in carrying it on. The time of payment fixed for the legacies was after this situation of the legatees should have ceased. The legacies are made payable after marriage of the legatees, or after an inclination made known by them to leave the homestead. It is quite plausible to say, looking alone at this provision of the will, and excluding from consideration the rules of decision which have been established, and Avhich are brought into operation by other provisions of the will, and by other circumstances; it is quite plausible to say that the intention of the testator was, that the legacies should not vest at once upon his death, but should be con *98 tingent upon the happening of one or the other of those events. Neither of these has happened. And so it is quite plausible also to say, that neither of these legatees have come into the condition which was first to. take place before payment could be made or demanded, and that the successors of those legatees are not entitled to have payment of the legacies. But there are other parts of the will, and other circumstances of the case, which evoke the rules above spoken of, and which have brought us to the conclusion that these legacies vested at once in the legatees named upon the death of the testator. It is a general rule, that a postponement of the time of payment will not, of itself, make a legacy contingent, unless it be annexed to the substance of the gift; or, as it is sometimes put, unless it he upon an event of such a nature that it is to be presumed that the testator meant to make no gift unless that event happened. Now, in looking mto the will in this case, two things are quite plain: that, so far as the collocation of the words of gift, and the words of time of payment are concerned, they arc quite distinct; and that the words of gift are direct, emphatic and absolute. Hence we may gather the intent, as being to make an absolute and present vested gift, and to defer to the future only the time of payment. The form of words in which the gift is made, is this: “I order and direct my son Jonathan to pay unto my three daughters-—-Hannah, Eunice and Sarah— four hundred dollars each, which I give and bequeath to them and their "heirs forever.” This clause of gift stands alone, so far as the clause of time of payment is concerned; alone and disconnected from the latter, both in sense and the necessities of grammar. Nor is it unworthy of notice, that the contrary is the case with all the other legacies, save one, given by the will; and that as to them, it does immediately accompany the words of gift with the direction as to the time of payment. And the other one thus excepted, is in the same category ivith those in question in this case. Certainly, the idea conveyed by the terms of the gift, as above stated, is of an absolute, sure and lasting bequest, to belong *99 at once and forever to the legatees named, or to those coming after them in legal succession; while the severance of the clause of bequest from the clause of túne of payment repels, rather than supports, the notion that more than the time of payment was meant to be contingent. The gift is direct to the legatees and their heirs, and independent of the direction when to pay. In such case the rule is, that the direction for payment, on the happening of an event named, shall not defer the vesting of the legacy. ■ (In re Bartholomew, 1 McN. & Gordon, 345; Leiter v. Bradley, 1 Hare, 12, 13; see, also, Andrew v. N. Y. Bible and Prayer Book Society, 4 Sandf. [S. C.], 156, 173; Patterson v. Ellis, 11 Wend., 259.) The gift is contained in the words alone: “ unto my three daughters—Hannah, Eunice and Sarah—four hundred dollars each, which I give and bequeath to them and their heirs forever.” It. is not unto those of my three daughters who shall marry, or who shall feel inclined to leave the farm; nor is it even, “ when,” or “if” either of those things take place. The objects of the gift are made distinct by the relation of the donees to the testator, and by them given names. It is the time of payment only that needs to refer for certainty to the event of marriage or leaving home. The gift being, then, direct and distinct, the rule above quoted comes into play. The words of the will, by which the gift is not alone to the daughters, but “ to them and their heirs forever,” are entitled to weight. They show that the testator had in mind a permanent separation from the bulk of his estate of the amount of these legacies, and a transmission of it in a different course of succession. In a like case, Lowther v. Condon (2 Atk., 130, 132), Lord Hardwicks said he might, and “ ought, to lay hold of a strong reasoning to be drawn from the words executors, administrators or assigns.” And it is to be observed of them, that they are nearly the same form of words which the testator uses in making the gift and devise to his son Jonathan of the homestead and other lands. There is no doubt but he meant to give him an absolute fee, *100 and to vest him at once with the title, charged with the payment of the legacies. It is another rule, that if the direction to pay at a future period be for the convenience of the. estate, or to let in some other interest, the vesting of the gift is not prevented. (Packham v. Gregory, 4 Hare, 398.) That such was the purpose in this case is shown by several things. All the legacies given by the will are postponed in payment; that to the widow of the testator, for three years after his decease; that to the daughter Martha, for two years after his decease ; though it is to be inferred (from the fact stated in the will that she was the wife of Nathaniel Foivler), that she was living away from the homestead, having her own separate household and affairs; hence the sooner the payment, the more to her convenience and advantage. Again, the devisee of the homestead is restrained for a time from selling it. It docs not appear that the other lands devised were of great or little value. It is not a weak presumption, that the devisee would need to make from the working of the homestead the money with which to pay any and all of the legacies. For it is evident, from the provisions of the will, that the personal estate left was inconsiderable, inasmuch as there is direction and power to sell lands and chattels whereform to pay debts.. Hence the time given for the payment of the legacies, wras time given to raise the means from the tillage of the lands devised; and this was for the convenience of the estate, or what is here equivalent for the ease of the devisee. Again, these legacies are not payable to these legatees at once on marriage or leaving home, but not until one year after; clearly a provision not for the convenience or profit of the legatees, but for the ease of the devisee. It is to be noticed, too, that the legacy to these daughters is not all which their father gave to them. All of the household furniture, save one article, he gave to their mother, and to them in equal shares. To this bequest no postponement is attached. It ivas not needful to attach it for the ease of the devisee, for the gift of it put upon him no burthen. But if *101 their marriage or leaving home was a controlling consideration with the testator, and led him to affix postponement as a contingency to the pecuniary gift, why did it not to the gift of chattels ? As by the will a home was provided for them upon the farm, they no more needed those chattels before they were married or left home than they needed the money. Hence it would seem that the postponement of the payment of it did not arise from a consideration of their condition and circumstances, so much as from the needs of their brother, the devisee of the lands charged with payment of the legacies. There aré other things in the will tending to the same end, though not of so much importance, perhaps. Thus all the cattle and utensils are to be kept on the farm, for the use and benefit of the family; but, on the marriage or death of the widow, are given absolutely to the son. And though the homestead is given absolutely to the son, he is restricted from selling it during the natural life of the widow,' yielding the strong implication that upon her death he might sell; which implication is sustained by the language of the direction for the daughters to remain on the farm, have their support there, and assist in the affairs of it. That direction is that they shall live there with Jonathan and their mother. The time of payment of their legacies is their marriage, or their being inclined to leave Jonathan and their mother, and live elsewhere. Evidently the contemplation of the testator was not to enforce the keeping up of the same family arrangement after the death of his widow. But all considerations to arise out of the celibate state of the daunh- . O ters, or them disinclination to leave the homestead, would still exist. Then, again, it seems that the circumstances of their personal condition or wishes were not those which were predominant and controlling in the provisions of the will for the time of payment of the legacies. After the death of the widow the son could sell the farm. The daughters, though not married, and though not inclined to leave it, would not be able in such case to remain upon it and receive their support from it. Tet, technically, neither event upon which *102 it is claimed that payment was predicated would have happened. But would they have been debarred from asking for them legacies ? It may be doubtful, too, whether after the death of the widow, they could insist upon remaining upon the farm with the son alone. If he should have refused them the privilege, would they have been barred their legacies, though unmarried and disinclined to leave ? It is quite plain that the postponement of time of payment was, in great measure, if not entirely, for the convenience of the estate and of the devisee of it. This not only brings into effect the rule last named, but stands in the way of that of another rule, which at times is applied in some cases of this class. That rule is, that when the payment of a legacy is charged upon lands, if the legatee dies before the time for payment arrives, the legacy sinks into the land for the benefit of the heir-at-law or devisee, unless a contrary intention appear from the. will. (Duke of Chandor v. Talbot, 2 P. Wms., 601, and cases in notes to Cox’s ed.) This rule is general, but not universal; and when the postponement is for the ease of the estate or'the benefit of the devisee, it does not apply (Remnant v. Hood, 2 DeG. F. & J ones, 410); or, if it appear that there was an intention that the legacy should vest at an earlier period. (Stone v. Massy, 2 Yeates, 363; 1 Paige, 7 Paige, both supra.) Another question arising in the case is, whether the statute of limitations is a bar to a recovery for the legacy to the daughter Sarah. It is not contended, that there is any period prescribed by law for the commencement of the action, shorter than six years after the cause of it accrued. The question might then be disposed of, in strictness, upon the facts. The finding of the court is, that Sarah died in 1866, May 8th. The cause of action accrued in one year thereafter, or May 8th, 1867, and not until then. It is not found when the action was commenced, nor is there any proof, nor any concession by the plaintiff of the date, though the opinion at General Term states it to have been 15th May, 1873. It does not appear upon what *103 that statement is based. The summons is dated March 10, 1873, and the complaint is verified. 1st March, 1873. So that, in strictness, the facts are not here to found this point of the defendants. Bat we believe that the year of Sarah’s death, given in the findings of the court, as they are printed in the appeal book, is a clerical or typical erorr. It is averred in the complaint (inferentially), that she died on the 8th May, 1856; and is so admitted in the answer, and so treated in the opinion at General Term; and in the points of both parties in this court, the point is considered as having a basis in the facts of the case. We will then assume, that at least sixteen years elapsed from the time the cause of action accrued for the legacy of Sarah, until the commencement of this action. The answer sets up the six-year statute, and no other. The plaintiff contends that the defendant cannot now avail of the ten-year statute. But, as the point does not seem to have been made below, where amendments of pleadings in such case are easily granted, and are to be commended, we will not here sustain this objection; even if it be necessary for the defendants to rest alone upon the ten-year statute. It is further claimed on behalf of the plaintiff that these legacies are a charge upon real estate, and that “ it is a general rule in the books, that there is no statute of limitations to a charge on real estate.” (Kane v. Bloodgood, 7 J. C. R., 90-116.) This remark from that case is there limited, however, to cases in which equity has the proper and exclusive cognizance. By entering into possession of the lands devised, upon condition of payment of these legacies, and thus accepting the benefit of the devise, the devisee became personally liable for the payment of the legacies. An action at law might have been maintained against him therefor, if the cause of action had accrued before his death; or against his executors after his death. (Dodge v. Manning, 11 Paige, 347; S. C., 1 N, Y., 298.) So, that equity had not exclusive cognizance of the demand. In such case, the same law of limitation of actions applies in both courts. (Borst v. Corey, 15 N. Y., 505-510, and cases there cited; see, also, *104 Rundle v. Allison, 34 id., 180; Am. Bible Soc. v. Hebard, 51 Barb., 552, affirmed in this court; 41 N. Y., 619 [notes of cases affirmed, reversed, etc.].) In Souzer v. De Meyer (2 Paige, 574, 577), the learned Chancellor reserves the question as if in doubt, and I do not find that he ever solved the doubt; but the cases above cited seem to settle it. Besides, it is now worthy of consideration, that the distinction in actions and jurisdiction of causes of action, is abolished; and that one court entertains all. (Code, § 69.) Now that the Code (§ 74) prescribes a rule of limitation for all civil actions, it is questionable whether the rules formerly prevailing in equity, by which no statute of limitation was applicable to suits in equity for certain causes of action, may make head against a positive and comprehensive statute. This question is briefly spoken to in De Pierres v. Thorn (4 Bos., 266, 288, 289). It is also claimed that this is an action upon a sealed instrument, and that there is no limitation upon it shorter than twenty years. (Code, § 99, sub. 2.) This point was made in Am. Bible Society v. Hebard, supra, but was not sustained. (See, also, Borst v. Corey, supra.) This action does not fall within either of the specifications of the third chapter of the Code. It is either within the 91st or the 97th section. The time is six years or ten years; we need not say which, for either is fatal. So, there was no existing right of action for the legacy to Sarah. Another question is, whether interest upon the legacy to Eunice is recoverable. It seems to be a general rule, that where land is devised on condition that a legacy be paid by the devisee, it must be paid with interest. (Glenn v. Fisher, 6 J. C. R., 33.) The reason furnished is, that as the land yields rents and profits to the devisee, he shall yield interest to the legatee; (Maxwell v. Wettenhall, 2 P. Wms., 26). ^Though this reason, it is said in Sumner’s note to Hutcheon v. Mannington (1 Vesey, Jr., 368), “is not, perhaps, the true one;” yet, no other is suggested; and so says Pearson v. Pearson (1 Sch. & Lefroy, 10), with the same omission. The rule seems to be well established, and the reason *105 seems a good one in this case. The devise of lands to the son, on the condition of payment to a daughter of so much money, was in the nature of exacting so much as a price or consideration for the lands, for which money and the use of it, an equivalent was to be had in the lands and the use of them. Inasmuch, as in the case before us, interest has only been allowed from a year after the death of the legatee, it is entirely equitable that the lands or the devisees thereof, who have had the rents and profits, should be charged with interest. Besides, in one year from the death of the legatee, her representatives became entitled to payment. Payment not having been made, but refused, it is according to all analogies that interest should be charged for withholding it. Some cases go so far as to say, that a legacy charged upon land must have interest from the death of the testator, or not at all; 1 Sch. & Lef. (supra.) And it is a general rule, that when a fixed time of payment has arrived interest begins to run, though a demand of payment has not been made. (Palmer v. Trevor, 1 Verm., 261; Snell v. Dee, 2 Salk., 415.) The defendants have mistaken the foundation for the allowance of interest, in supposing that it was put upon the ground of a maintenance of the legatee during minority or celibacy. For these reasons, we think that the judgment appealed from should be affirmed. As both parties took an appeal, neither should have costs in this court. All concur, except Church, Ch. J., dissenting. Allen, J., not voting; Rapallo, J., absent. Judgment affirmed.