Estate of Washburn

Opinion by Mr. Justice Fell, These appeals are by the same parties, and in the same estate, and may be considered together. The first appeal is from the order of the orphans’ court setting aside the confirmation of tbe joint partial account of Nicholas Washburn and William Merrifield, executors of the will of Calvin Washburn, and permitting the executor of William Merrifield to file a separate aecouut, and from the order dismissing the exceptions filed thereto. The proceeding was by petition and rule, but it was in substance a bill of review. The joint partial account was filed in October, 1876, and showed a balance of cash and uncollected assets in the possession of the executors. Before the confirmation of the account, one of the executors, William Merrifield, was stricken with paralysis, and he died in April, 1877. He had not taken an active part in the settlement of the estate, and had never had actual possession of any of the assets thereof. The surviving executor, from the time letters testamentary were granted until his death in 1887, had entire charge of the estate, and was reputed to be financially responsible. No steps were taken until August, 1894, to hold the estate of William Merrifield responsible for a devastavit by his co-executor. The power [165] of tlie court to allow a review is beyond doubt: Young’s Appeal, 99 Pa. 74; Johnson’s Appeal, 114 Pa. 132; Wilson’s Appeal, 115 Pa. 95. Under the testimony offered there was no error in dismissing the exceptions to the separate account which it permitted to be filed. The questions raised by the second appeal are whether the legacies to the appellants were charges on the real estate devised by the testator to his son Nicholas Washburn, and, if so, whether they were discharged by the sheriff’s sale of the land, after the death of the devisee, under a judgment which had been obtained against him. The appellants are the daughter and granddaughter of the testator. He directed his executors to invest $5,000 in mortgages on real estate, and pay the income to his daughter for life, or at her option to invest this amount in real estate and secure to her the income thereof. At her death the principal sum invested or the real estate bought was to go to his granddaughter, to whom he also gave a legacy of $1,000, payable immediately after his death. The remainder of his estate, real and personal, after the payment and securing of all legacies, went to his son Nicholas, one of his executors. Two and a half years after Nicholas went into possession of the real estate which passed to him under the residuary clause of the will, it was sold by the sheriff under a judgment obtained against him. The learned judge of the orphans’ court held that the legacies mentioned were charged upon the land, and that their liens had been divested by the sheriff’s sale. The exceptions to the rule that a sheriff’s sale discharges lions created by deed or will were said in Stewartson v. Watts, 8 Watts, 392, to be (1) where liens are created by last wills and testaments as permanent provisions for wives and children; (2) where from the nature of the incumbrance it will not readily admit of valuation; (3) where it is plain they were intended to run with the land. In Hiester v. Green, 48 Pa. 96, it was said that under one or the other of those heads it was manifestly intended that every lien should fall which was to be saved, unless by statute, from the ordinary effects of a sheriff’s sale. These exceptions to the rule have since been recognized in a number of cases, among them, Helfrich v. Weaver, 61 Pa. 385, Pierce v. Gardner, 83 Pa. 211, Bryan’s Appeal, 101 Pa. 389, and Rohn v. Odenwelder, 162 Pa. 346, but they have not been extended. [166] Tbe rule is that the liens of pecuniary legacies which are determinate in value are discharged by a sheriff’s sale of the land under a judgment obtained against the devisee unless they were plainly intended hy the testator to be continuing liens. This case comes within none of the exceptions. If either legacy is a charge upon the land it is by implication only from the blending of the real and personal estate in the residuary clause. The will discloses no intention to secure by a continuing lien a permanent provision for either of the appellants. The legacies to them are specific, and are to be taken at once out of the testator’s estate. That for the daughter is to be invested in bond and mortgage on real estate or in the purchase of real estate; that to the granddaughter is to be paid immediately. If these directions do not negative any implication of an intention to charge the land, a question which it is not necessary to consider, they certainly do not show an intention to create a continuing lien. The decrees are affirmed at the cost of the appellants.