Wertz's Appeal

The opinion of the court was delivered, May 25th 1871, by Sharswood, J. This was a proceeding in the court below under the Act of Assembly of February 24th 1834, § 59, Pamph. L. 84, providing a remedy in the Orphans’ Court, wherever a legacy is charged upon land. There is but a single assignment of error, and that is for want of jurisdiction. For this two reasons are stated: First, because the legacy was not charged under the will on the land, and second, that if charged it was discharged and paid by an agreement between the legatee and devisee of the land. It is very clear that this last reason does not affect the jurisdiction of the court, which attaches by reason of the original charge, and has of course power to decide the question whether the legacy has been paid or satisfied directly by money, by release, or by accord and satisfaction, as was attempted in this case. If it was meant to assign for error the decision of the court below upon that question, the assignment is clearly contrary to Rule VI., 6 Harris 578, which declares that “ each error relied on must be specified particularly and by itself. If any specification embrace more than one point or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.” It is very true that if the court below after hearing had dismissed the petition on the ground that the accord set up was a bar, the party would have been remitted to his common-law action under that agreement, but it is to confound the plainest distinctions to maintain that when a defendant has made out a good defence to the plaintiff’s demands, that destroys the jurisdiction of the court and of course its power to decide at all. We have really before us then but one question, whether the legacy to Rachel Masden under the will of her father Jacob Wertz was a charge upon the land devised to his two sons John and Solomon. “And it is further my will and I do order, that in case of my decease, I do hereby give and bequeath my whole estate, real, personal and mixed, to my two sons John and Solomon, their heirs, executors, administrators and assignees for ever, sub [176] ject however to the following reservations, to wit: It is my will and I do hereby give and bequeath unto my oldest daughter Rachel, the sum of $500.” Then follow various other legacies. Nothing could much more clearly express a charge, than a devise subject to the payment of the legacy: Newman’s Appeal, 11 Casey 339; Holliday v. Summerville, 3 Penna. Rep. 533. But apart from the force and effect of that word, it is well settled that a general devise blending the real and personal estate together creates the legacies a charge on the realty: Tucker v. Hassenclever, 3 Yeates 294, affirmed in the High Court of Errors and Appeals, 2 Binn. 525; Witman v. Norton, 6 Binn. 395; McLanahan, v. Wyant, 1 Penna. Rep. 111. In Tower’s Appropriation, 9 W. & S. 103, the words of the will were, “ To my nephew T. I giv.e and bequeath all my estate real and personal, he paying the legacies hereinafter mentioned,” — and they were held to create a charge upon the land devised. “An intent to charge,” said Chief Justice Gribson, “has been implied by the English courts from -a devise of the residue, real and personal, after payment of legacies: whence a supposed design that the devisee should have nothing till the legacies were first taken out of the land. We went a step, further in McLanahan v. Wyant, 1 Penna. R. 96, when we inferred a design to charge a particular legacy from a blending of the real and personal estate not of the residue, particular parts being excepted: and this too though other legacies were expressly charged. That case' has become a rule of property, and it is therefore not to be shaken.” It is very clear, therefore, that the legacy to Rachel Masden was charged on the real estate devised to John and Solomon, and this was enough to give the court jurisdiction. But had it also been separately assigned as an error that the court below did not decide that the agreement set up was a sufficient discharge of the legacy, we think it would not have availed the appellant. Apart from all questions under the Statute of Frauds, we think the weight of the testimony is that as the $500 of Mrs. Masden’s legacy, and $200 other money of hers collected from Michael McOue as alleged in the answer, went into a house built by Solomon Wertz on his own land, the $500 was to he accounted for on her death, and repaid by him to her estate. One of the appellant’s own witnesses so states the agreement — and it is much more reasonable than what the other witness testified, that Solomon was to have the house at what it was worth at his death; the latter witness being at the time a girl of only twelve years of age. Decree affirmed and appeal dismissed at the costs of the appellant.