Cook v. Petty

Chief Justice Mercur delivered the opinion of the court, January 5th, 1885. The testator, under whom both parties claim title, blended his residuary estate, real, personal and mixed, and gave and devised the same to his five children, share and share alike. This,' by implication, made the legacies a lien oh the residuary estate. Although the personal estate may have been sufficient to pay the debts and the- legacies, yet if not applied to the latter, they remain a charge on the real, estate, and are [142] entitled to payment out of the proceeds, when sold on an execution against the residuary devisee: Bank v. Donaldson 7 W. & S. 410. The injustice of permitting such a devisee to squander the personal estate and claim to hold the realty discharged from the lien of the legacies, is too manifest to be tolerated. It follows the legacies were a lien at the time of the sale made by the United States marshal. The title passed by virtue of that sale, and deed made and delivered in pursuance thereof. The fund produced by the marshal’s sale was distributed by the United States Court. On that distribution, the judgment on which the sheriff’s sale has been made, was presented and the fund claimed thereon on the allegation that the lien of the legacies had been divested by reason of a sufficiency of personal estate to have paid them. The court decided against this view, holding the lien was not thereby divested. Thus the very matter now set up was then passed upon and decided by a court of competent jurisdiction. The fund was in that court. The parties were before it. The decree of distribution which it made has never been disturbed. It became final. If we thought it wrong, we would not now review its correctness. We discover no error in the admission of evidence. It follows the learned judge committed no error in entering judgment in favor of the defendants on the question of law reserved. , Judgment affirmed.