Tole v. Hardy

Curia, per Woodworth, J. If this action can be sustained, it must be on the ground that the legacy claimed [338] is.charged on the estate devised, or on the defendant in respect to the estate; that the defendant became seised, entered on the premises, and thereupon promised to pay. In the declaration, it is alleged that the defendant entered under the will, 'and thereby became liable to pay, and, being so in possession, promised. It is contended that the defendant had not taken possession when the promise was made. The evidence is, that James Hardy, being in possession about six months after the testator’s death, the defendant gave him permission to remain on the farm devised, until the month of May following; that the defendant then claimed the farm by virtue of the will; and said he would take the land, and pay the legacies : that about a week or two afterwards, the defendant requested him to leave the farm, the then next week. The promises were made in January and the beginning of February. The defendant actually took possession about the 15ift of February. If possession be necessary to be proved, as well as the election of the defendant to take, I think that fact sufficiently made out. James Hardy, also a son of the testator, was in the actual occupancy, not holding adversely. In law, it must be considered as the possession of him in whom the title was vested, it further appears, that the defendant considered the possession as at his disposal; and that James held subject to his control. The defendant gave him permission to remain on the farm until May. That James acquiesced, is fairly to be presumed; as-no objection was made on his part to the right assumed to control the possession. Afterwards, and before the promise, James is directed to quit. It is matter of inference that he did quit, as the defendant entered in February. These facts, taken in connexion, show very satisfactorily, that the defendant had possession, by his tenant, or by a person occupying subject to his direction or control. I incline to the opinion, that this testimony supported the promise as stated in the declaration. The case of Wells v. Prince, (4 Mass. Rep, 64,) decides, that if a stranger is in possession, under, or acknowledging the ti339 tie of the devisee or remainderman, it is equivalent to an actual entry. Parsons, Cli. J., observed, “ It is a general rule of law, that on the death of the devisor, dying seised, the devisee is not seised until entry be made for his use, or some other act done which in law is considered as having the effect of an entry.” From what has been already stated, it will be perceived that the case before the court comes within the rule laid down. James Hardy must be considered as having been in possession under the defendant; and acknowledging his title. If it was necessary to prove the assent of the executor and executrix to the legacy, enough was shown to establish that fact. On this point, the release of dower by Margaret Hardy, the executrix to the defendant, who was the executor, may be noticed. She states that the defendant applied to her and said, if she would sign off her right, he would go on and pay the heirs. She complied ; upon which he said he would then go on and take the farm. This act is a clear manifestation of assent. But it was not necessary to prove the assent of the personal representatives. It is true that, if a man bequeaths his chattels real or personal, or gives any specific legacy, the legatee cannot enter, or take the legacy, without the consent of the executor. The reason is, because the personal estate is liable in the hands of the executor to the payment of the testator’s debts. He must take care to satisfy debts before legacies. But when a man seised in fee devises, the devisee may enter without the assent of the executor; because the latter has nothing to do with the real estate. (Co. Lit. 111, a. 1 Saund. 278, n. 5.) This is the law in England; and the law is the same here, except that a power is given by statute, on' the application of an executor, to sell lands for the payment of debts. The executor has no other control over them. He has no authority to take possession of, or hold the inheritance. Consequently the devisee need not prove his assent. Besides ; in this case it appears that the debts did' not exceed $30 ; and the personal estate was equal to $500» There could be no resort to the land. [340] According to the principle upon which the liability of the defendant rests, the value of the farm is an immaterial inquiry, if the defendant elected to take it cum onere, entered into possession, and promised to pay. The material question is, whether the legacy was charged on the land, in exoneration of the personal estate, by express words, or a plain intent of the testator. This case bears some resemblance to that of Kelsey v. Deyo, (3 Cowen, 133.) Here, as in that case, the debts are directed to be paid out of the personal estate. This, I think, is manifest; as no real estate is devised to the wife of the testator, and she is directed to pay the debts. The farm is devised to the defendant; and pecuniary legacies to other children, of whom the wife (plaintiff) is one. The will says the defendant is to pay as follows ; naming five of the children. It then proceeds, “ also James Hardy is to have $250, also to Fidelia Hardy'” (the wife, plaintiff) “$100.” In my opinion the testator intended, and so the will is to be construed, that the defendant should pay the legacies. The direction at the beginning of the bequests undoubtedly applies to all; and shows pretty clearly that it was intended to charge the real estate. But it by no means proves that the personal estate was not first to be called in aid of the real. Several specific legacies of personal property are given in the will; but it no where appears that they included all the testator’s personal estate. There is no bequest of the whole ; and herein the case materially differs from Kelsey v. Deyo. The argument cannot be urged, that it is apparent the testator intended to charge the real estate exclusively, from the fact that all his personal property was given to others. If then there is not enough on the face of this will, to make the legacy a specific charge on the farm, or, in other words, to exclude the personal estate from coming in aid of the real; the cause belongs to a court of chancery. A court of common law has not jurisdiction. In Livingston v. Newkirk, (3 John. Ch. Rep. 319,) this doctrine is fully examined. The chancellor observed, “ It is too well settled tobe questioned, that the persoUal estate is tobe [341] first applied to the payment of debts and legacies; and that a mere charge on the land will not exonerate the personal estate; nor any thing short of express words, or plain intent in the will of the testator.” If such be the legal construction of this will, parol evidence cannot be resorted to, for the purpose of showing a different intent. There is no latent gmbiguity. That is made out by proof of extrinsic facts, and may be removed by parol. Here the fact that the testator had no other personal property, raises no ambiguity ; but, if admissible, it is to give a construction that the farm is exclusively to be charged ; for so I am inclined to think would be the result, had the facts clearly appeared in the will. That such evidence must be rejected, is in accordance with the general current of authority. I need only mention a few cases, where it has been held that parol evidence is not admissible to shew the intention of the testator, against the construction on the face of the will, and that the state of his property cannot be resorted to as a criterion to explain it ; and that generally, the will is not tobe construed by any thing dehors, where there is no latent ambiguity. (8 Ves. 22. 18 id. 466. 1 Ball & Beat. 543. 1 Mer. 194. 3 id. 316.) It is evident, then, from the rules of evidence applicable to the construction of wills, that if, on the face of this will, it cannot be collected that the charge is exclusively ' on the land, evidence of the state of the testator’s property cannot be called to its aid. The law, in its wisdom, has established certain land marks, by which we are to be governed. The security of property depends on adhering to them. We are not permitted to lay hold of parts of a will which indicate a probable intent; and determine according to impressions thus derived. It is necessary that the will itself should contain what the law has adjudged competent evidence of intent. In this case, it is probable the testator may have intended to exonerate the personal property ; but this intent is no where expressed ; nor can it necessarily be inferred. So, also, the testator may not hgve possessed any personal property, other than that bequeath [342] ed. His will is silent in this respect. There is, there* fore, the omission of a material fact, without which, or without some other clear indication, not contained in the will, the law adjudges that the legacy is not a charge on the land exclusively. I am of opinion that the defendant is entitled to judgment, Judgment for the defendant.