Hines v. . Hines

SMITH, C. J. (after stating the case). We think it clear upon the face of the complaint that no cause of action exists against the defendant in his representative character. *484 The delivery over to the legatee S. Elizabeth, of the property given her in the will, and her acceptance of it, were on the terms and conditions specified, and imposed upon her a direct personal obligation to pay her moiety of the annuities, without regard to the value of the estate received. In like manner, the election of the devisee and legatee, John M., to take the estate given him, is a personal assumption of liability, and an undertaking on his part to provide for the payment of the other moiety of the annuities. This was a discharge of his trust under that clause of the will, and he was not required to take any indemnity or security for those money payments before delivering to the legatee, or an election to hold as such himself, the property charged with them. The testator does not direct the payment “out of his estate,” so as to constitute a charge upon all of it, to be carried into effect in the administration by the executor; Biddle v. Carroway, 6 Jones’ Eq., 95 ; following Bray v. Lamb, 2 Dev. Eq., 372 ; but he disposes of encumbered property, and affixes an inseparable condition to its acceptance, that the recipients shall pay their several parts of the legacy to his son, M. W. Hines. The case falls directly within the ruling in Phillips v. Humphrey, 7 Ired. Eq., 206, in which it is held that a testamentary gift of a large amount of real and personal estate to five children, subject to the payment of one hundred dollars by each to Julianna Littleton on her arrival at age, imposed the obligation 'to see to this payment, not upon the executor, but upon the children. The defendant who is sued in his representative capacity, is not liable as such, for his trust was discharged upon the change of proprietary right, and the action could be maintainable against him individually, for the recovery of the one half part. The action in its present form is misconceived, as *485 it is against the defendant, as executor, and seeks to make him responsible for the whole legacy and not bis share of it. There is no error, and the judgment must be affirmed. No error. Affirmed.