Walter's Appeal

Mr. Justice Green delivered the opinion of the court, In Cable’s Appeal, 10 Norris 327, we said: “ 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.” This same doctrine was held in a number of other cases of which Okeson’s Appeal, 9 P. F. Smith 99, Hamilton v. Porter, 13 Id. 332, and Buchanan’s Appeal, 22 Id. 448, are examples. They have all been so recently reviewed that comment upon them is unnecessary. The force of these authorities is conceded by the learned counsel for the appellees, and they therefore argue that an intent to charge the legacies upon the lands devised to the testator’s two sons, John M. and James H. Walter, is to be gathered from a reading of the whole will. We have examined it with much care and are entirely unable to discover such an intent. The testator first gives various pecuniary legacies to several of his children and to Harriet Kuhn. These legacies are payable by the executors out of such assets as may come into their hands. Then he devises his farm to his two sons, John M. and James H., to be equally divided between them. He next directs as follows: “ And further, I order and direct that my said son, John M. Walter, pay to my several before-mentioned heirs the sum of $3000, and I direct that my son, James H. Walter, pay to my several before-mentioned heirs the sum of $1400.” And he follows this'with a provision that his two sons shall come into possession of the farm when they respectively arrive at the age of twenty-one years. In all this there is not the least expression of any desire or thought that these sums are to be charged upon the land. The testator next provides that his widow shall have control of the farm until the two sons arrive at majority, that sufficient stock and farming implements remain upon the premises for farming purposes, and that all repairs be paid out of the proceeds of the farm. Next he directs the executors to make a public sale of all the effects not needed in furnishing.the mansion house, and implements and live stock not needed for farming purposes, and that his said two sons shall have a reasonable education, to be paid for out of the proceeds of the farm and of the said public sale; and he further directs his áaid two sons to provide equally for the support and maintenance of his widow. In the next two clauses of the will the testator devises a piece of ground to a church for a burial place. In the final clause he directs that [308] the bequests made to his children which are to be paid by his said two sons, are not to be paid for two years after his _decease, and then to be paid in equal proportions, if they are not able to pay the whole at that time. He closes by naming his executors. The foregoing is an epitome of the whole will, and it fails entirely in our opinion to disclose the least evidence of an intent on the part of the testator to charge the lands devised to John and James with the payment of the sums in question. There is nothing but a bare direction to them to pay the money, and this has frequently been held to import nothing more than a personal obligation of the devisées. There is no residuary devise or bequest in the will, and hence there is no warrant for the proposition that John and James are to have the residue. It is further contended that the Orphans’ Court has jurisdiction to decree the payment of the legacy whether it is charged upon the land or not, and Dundas’s Appeal, 23 P. F. Smith 474, is cited as authority for that position. But, so far as this question is concerned, that was the case of an ordinary application to compel executors to pay legacies which it was their duty to pay: This proceeding is a special one against devisees of land to have certain legacies charged upon the land, and this can only be done under the act which authorizes it, when the legacy is, by the will of the testator, “ charged or payable out of real estate.” As that is not the case in this instance, it follows that there was no jurisdiction in the Orphans’ Court to entertain the petition for any purpose. Decree reversed and petition dismissed at the cost of the appellees.