Hamilton v. Porter

The opinion of the court was delivered, January 3d 1870, by Agnew, J. — 0It is clear this legacy is not á charge on the real estate devised by the testator to Simeon H. Hamilton; no such intention is discoverable in the will of James Moore: Brandt’s Appeal, 8 Watts 198; Miltenberger v. Schlegel, 7 Barr 241; Montgomery v. McElroy, 3 W. & S. 370; Dewitt v. Eldred, 4 Id. 414. The case, therefore, did not fall within the jurisdiction of the Orphans’ Court under the 59th section of the Act of 24th of February 1884. It is equally clear that, by the acceptance of the devise, Hamilton became personally liable for the legacies, and that their payment could be enforced by an action of assumpsit in the Court of Common Pleas: Lobach’s Case, 6 Watts 167; Montgomery v. McElroy, 3 W. & S. 372; Hoover v. Hoover, 5 Barr 351; Mohler’s Appeal, 8 Barr 26; Hackadorn’s Appeal, 1 Jones 86. The legacies bear interest also from the time of the acceptance of the devise upon the terms of the will. This grows out of the nature of the liability assumed by the acceptance of the devise. From the time of acceptance in such a case as this, where no clog or condition is imposed upon the possession or enjoyment of the land devised, the devisee’s title takes effect. He is entitled to the immediate possession, unless it is held under an outstanding lease, and then he is entitled to the rents and issues of the land, as landlord, by the operation of the will. Such sums charged by a testator on the person of his devisee are not pure legacies as those [335] are which the executor must pay, and, therefore, are not within the general rule that legacies are not payable until the end of the year and do not bear interest until then. There is no estate to be settled by the devisee and no reason for delay. As soon as he accepts the devise he assumes the burthen, and is also entitled to the profits of the estate he accepts, when not encumbered by the testator by other provisions. Hamilton claimed the possession of the land soon after the testator’s death, and claimed the rent of Buckley, the tenant. There was no doubt of his acceptance of the devise immediately after Moore’s death. The fact that the heirs of Moore resisted Hamilton’s right to possession does not alter the case, unless it had been done by the plaintiffs to his detriment. Of this there appears to be no evidence. The judgment is therefore affirmed.