Conard's Appeal

The opinion of the court was delivered by Lowrie, C. J. By the common law, executors had nothing to do with legacies expressly charged on land, or that, by deficiency of personal estate, became charged on the residuary real estate: and this is not changed by the system created by our acts of Assembly. It was only in equity that such legacies were enforced in England; and with us they are enforced only in the Orphans’ Court, on petition by the legatee against the owners of the land charged, with notice to the executors and such others as may have any interest. We know not how we can treat this annuity in any other way. It is a legacy in lieu of dower, and becomes a charge by reason of a deficiency of personal estate. This absolves the executors from all duty in relation to it. Their control of the residuary real estate is not needed in order to enforce payment of the legacy, and we can imply no trust in order to give it to them. The estate charged was redeemable ground-rents, and it follows, that in the redemption, the right of the legatee must be secured. A common legacy would be paid at once. An annuity legacy must be adequately secured, in whole or pro tanto, out of the redemption-money. If there had been any debt of the estate remaining unpaid, it would have been right to pay the redemption-money to the executors, on their giving security, as in the case of selling real estate for debts: 6 W. & S. 446. The money is now under the control of the court, and must be invested to secure the annuity, or paid to the residuary devisees if they shall adequately secure it. We think that all the exceptions taken to the auditor’s report below are well founded; but the cause is not presented to us with sufficient fulness to enable us to make a decree, and we must send it back for further proceedings. Decree reversed, and all the four exceptions to the auditor’s report sustained, and the cause remanded to the Orphans’ Court for further proceedings according to law.