Beecker v. Beecker

Kent, Ch. J. delivered the opinion of the court. The promise stated in the declaration, is to be considered, after verdict, and upon the present motion, as an express promise. This is the presumption, and so it has been received by the courts, in a variety of cases, where there was no admission of the parties to contradict it. (Cowp. 283. 289. 7 Term Rep. 350. note. 4 Johns. Rep. 237.) The question, then, before us is, whether an action at law can be sustained against a devisee, upon his express promise to pay a specified sum, bequeathed as a legacy, and charged upon the land devised, and made after the executors had assented to the legacy, and in consideration of his having become seised of the land under the devise. In the cases of Atkins v. Hill, and of Hawkes v. Saunders, (Cowp. 283. 289.) the court of K. B. determined that an action of assumpsit lay at law against an executor, on his express promise to pay a legacy, in consideration of assets received, sufficient to pay all the debts and legacies. Those decisions have been considered as shaken by the case of Decks v. Strutt. (S Term Rep. 690.) But the question in that case was, whether the law would raise an implied promise, on proof of the acknowledgment of assets, and when the legacy was payable out of the general funds of the testator; and the court held, that it would not. Lord Kenyon said, that it was a case almost without precedent, and that the means which a court of equity had to control the suit so as to meet the purposes of justice, particularly when the husband sued [104] for his wife’s legacy, was a strong reason for confining the' cognisance of such suits to the courts of equity. The K= afterwards, in Doe v. Guy, (3 East, 120.) laid much stress upon the circumstance, that the action of Deeks v. Strutt was upon the implied promise only. The cases in Cowper have not, therefore, strictly been overruled. They may be reconciled with the subsequent decisions, upon the distinction between an express undertaking, and a promise implied by law. It must, however, be admitted, that the language of some of the old cases, {Dyer, 264. pi. 41. Moore, 917. Hob. 265. T. Raym. 28.) as. well as the general reasoning of Lord Kenyon, is against the-action; but whoever has duly considered the authority of the two decisions in Cowper, and the powerful manner in which they are supported, cannot but be conscious of the weight with which they press upon the argument. None of the old cases appear to have arisen upon an express promise. The court was content to lay down the general rule that the legatee must sue in the spiritual courts for his legacy. The objection upon which Lord Kenyon seems chiefly to have relied, does not apply here; for this is not the case of a husband, suing for his wife’s legacy, and the objection has, perhaps, been deemed of too much importance. It would equally apply to a voluntary payment of the wife’s legacy, without the assent of chancery; and it would equally prevent an action at law for a specific legacy, which action was sustained in the case of Doe v. Guy. A specific legacy may consist of money, or stock, or the profits of a farm, if it be designated with sufficient certainty. (2 Fonb. 375.) This case is different from the ordinary case of a suit against the executor, for a legacy, payable out of the general fund, and which may be maintained at law, under our statute. (Sess. 24. c. 174. s. 18.) The books have been more favourable to the suit against the devisee. Lord Holt (2 Salk. 415. 2 Ld. Raym„ 937.) supposed that an [105] action at law could be maintained in this case; and in Paschell v. Keterich, (2 Dyer, 151. b. Benloe, 60.) all the justices held, that the spiritual courts had no jurisdiction where the money was to arise from the freehold; and that the legatee might have account at common law. • Lord Coke held the same language; (2 Bulst. 257. Dyer, 151. b. note;) and in a case in the time of Charles II. (1 Sid. 45. T. Raym. 23.) Twisden, J. said, that in his time, it had been adjudged in the K. B. that if one by will devised a legacy, to be paid out of land, an action lay for this in that court. These cases prove, at least, that there never was any settled course of decisions against the action; and when the devisee, or tertenant, affirms the trust, by accepting of the land, and promising to pay, the case comes within the principle of the cases decided by Lord Mansfield ; for it is a contract founded upon a valuable consideration. Whether a suit at law would lie against the devisee, or tertenant, without such promise, is a distinct question. It is easy to perceive difficulties in the way of such a suit, for the charge is not personal, but upon the land; and unless the devisee makes himself personally responsible, by his express undertaking, the judgment and execution ought to be special, as in the case of a suit against the heir and devisee, under the statute. Until the statute of 3 and 4 W. y M. there was no remedy at law-., by the creditor, against the devisee. Why should the mere possession by the ter- ‘ tenant of the land charged, support a personal action at law, of debt, or assumpsit, any more than the possession of land charged with any other trust, or encumbrance? In the case of Livingston v. The Executors 'of Livingston, (3 Johns. Rep. 189.) this court held, that an action at law would not lie against the personal representatives of the devisee, upon the mere implied assumpsit, arising from the devise, itself. The declaration, in that case, [106] might have warranted the presumption of an express promise by the devisee ; but it was conceded upon the argument, that it was the case of an implied assumpsit, , and the court went upon that ground. But whether á suit at law will lie against the. devisee, or tertenant, while in possession of the land, and without any promise to pay, the court give no opinion. We confine ourselves to the case now before us, and for the reasons given, the motion in arrest of judgment is denied. Spencer, J. not having heard the argument in the cause, gave no opinion. Motion denied.