Cable's Appeal

Chief Justice Sharswood delivered the opinion of the court, It is well settled that a mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge on land. There must be something more, express words or necessary implication from the whole will that such was the intention. In the case before us there are certainly no express words or charge. It is contended, however, that it is necessarily implied from the words following the devise to John and Edward Cable, “but the said John and Edward Cable is to pay.” But how do those words evince more than the intention that if his sons accept the devise they shall be personally liable to pay the legacies and perform the other duties devolved upon them by the will, among which was “ to find a home for my wife Sarah and daughter Harriet, and keep them and clothe them; also to provide for them every thing that is necessary for their comfort as long as they shall livé or remain unmarried ?” If the pecuniary legacies to his daughter Jessica was a charge, surely these provisions for his wife and daughter Harriet were equally so. In Hamilton v. Porter, 13 P. F. Smith 332, the words of the will were “I will that S. H. H. is to take the land and pay $700 to each of my within-named heirs.” It was held by this court not to be a charge. Buchanan’s Appeal, 22 P. F. Smith 448, is if anything still stronger, indeed almost expressly in point. There the devise was to W., “he paying the legacies, &c.” Yet this court held it was not a charge. In Hoover v. Hoover, 5 Barr 351, the words were “ yielding and paying thereout,” which were held to create a charge, and so it would have been here if the words had been “but they, the said John and Edward, to pay thereout.” There are several cases in which, taking the whole will together, an intention has been discovered to create a charge, as in Gilbert’s Appeal, 4 Norris 347; but there is nothing in any other part of this will to throw any light upon the question. We are called on to pronounce this a charge from the bare words, “ but they to pay.” We think that they are not sufficient, and that to preserve consistency in our own decisions we are compelled so to hold. Decree reversed at the cost of the appellee.