Bright's Appeal

Mr. Justice Paxson delivered the opinion of the court, October 2d 1882. If there is anything clear in the will of John Harlem an, it is that he intended the legacy to Thomas H. Miller should be paid in full. He says it shall “ be paid to him in preference and before every and all other legacies in this will bequeathed.” Language could not be more explicit. Nor has the testator left ns in any doubt as to his reason for this preference. He was childless, and had taken Mr. Miller to his home when an infant and cared for him as his own child. In his will he speaks of him as one “ who has lived with me from infancy.” The distribution made by the auditor and confirmed by the court postpones Miller’s legacy. He appears to have received something on account of a former distribution, but how much is not stated. The present is a final account, and if Miller’s legacy is not paid now it never can be. The error into which the auditor and court below fell was in holding that the homestead farm was devised to the nephews and nieces of the testator as land. That it was converted by the will is too plain for argument. The testator directed all of his real estate to bo sold for the payment of debts and legacies. Some of it he directs to be sold immediately. So much of it as was not necessary for the payments of debts he directed should not bé sold until the first day of April, 1866. The homestead farm he devised to his wife during her life or widowhood ; if she remained his widow it could not be sold until after her death ; if she died or married prior to 1866 it could not be sold until that period. He gave a legacy - of $200 to Margaret Moore “ to be paid to her out of the proceeds of the farm on which I now reside when it shall be sold according as I shall hereinafter direct.” The after direction was as follows : — “ I also bequeath to the said children the farm on which I now reside, subject to the estate of my. widow in the same, which I have hereinbefore bequeathed to her. And at the death or marriage of my said widow, Rachel Harleman, I desire my executors or the survivor of them to sell the said farm, and I hereby authorize and empower them to make title in fee to purchasers for the same and divide the proceeds equally among the said children, giving them share and share alike, after deducting the legacy bequeathed to Margaret Moore.” Here was an express direction to sell and divide the proceeds among his nieces and nephews. It depended upon no contingency [607] except time. It left nothing to the discretion of the executors. It is true the testator becpieathed the farm to the children subject to the life estate of the widow ; but this was intended as a mere gift of the proceeds thereof, after deducting the legacy to Margaret Moore, as plainly appears in the concluding portion of the paragraph quoted. That the direction to sell the farm worked a conversion of the land into money is plain from all the authorities. I need only to refer to the recent cases of Laird’s Appeal, 4 Norris 339, and Jones v. Caldwell, 1 Outerbridge 43. The children referred to took as legatees, and not as devisees ; they took money, not land. It is evident the testator was mistaken as to the value of his estate, and ■ that all the legacies cannot be paid. Under these circumstances which of them is to be postponed or abated? Certainly not the legacy to Miller. He was not merely the principal object of the testator’s bounty, but as to him the latter expressly declared that his legacy shall be paid “ in preference and before every and all other legacies in this will bequeathed.” It follows that Miller must be paid in full before either Margaret Moore or the nephews and nieces. The order of distribution will be as follows: 1. The legacy to Thomas H. Miller. 2. The legacy to Margaret Moore. 3. The balance to the nephews and nieces, share and share alike. The decree is reversed at the costs of the appellees, and distribution ordered in accordance with the foregoing.