Hege v. Hege

The opinion of the court was delivered by Huston, J. This was a case stated, for the opinion of the common pleas, on. the will of Christian Hege, deceased, and the facts-which have occurred since his death. Christian Hege, by his last will, after directing his debts to be paid, and making provision for his wife, devised as follows: “To my son Henry I give and bequeath two hundred acres of land, lying and situate on the north side of my mansion house and property, the beginning to be on my east line and run a westerly course, so as to be equally advantageous to both tracts, at present undivided. This division I wish Jacob Hege, and two discreet neighbours to be chosen by Jacob Hege and Henry Hege, to determine. This two hundred acres I value to Henry Hege at fifty dollars per acre, payable in instalments of three hundred dollars each for five years; after five years,"I will that he pay the sum of four hundred dollars yearly, until the whole sum be discharged. If Henry Hege refuses to com [89] ply with these terms, it is my will that my executors sell the same land to the highest bidder, at fair and public sale; if he complies, I will the above described land to him and his heirs and assigns forever. “ I will and bequeath to my son, Peter liege, two hundred and thirty-six acres fifty-eight pérches of land and allowance, including my mansion-house, barn, buildings and appurtenances thereto be- f longing, This land lies at the south side of my property, whi'ch I < value to him at sixty dollars per acre, payable in instalments of five hundred dollars per year, for five years; then the instalments shall be six hundred dollars per year until the amount is paid. My will is that Jacob Hege act as guardian of Peter Hege until he is twenty-one, and grant the privilege of selling off fifty or sixty acres of the above land, to be sold and conveyed by my executors. Jacob Hege shall choose out the part to be sold where it will least injure the property. The above mentioned properly I will and devise to Peter Hege, his heirs and assigns forever, the amount being discharged.” He then proceeded to order a sale of his personal property, and of a tract of land in M‘Conncl’s cave, &c. “Finally, I will that each of mychildren receive an equal share of my whole estate,” &c. and appointed three executors. The will was proved 20th May, 1815. Henry Hege took possession of the part 'devised to him, and made four payments, and died 16th July, 1820, leaving three children, the plaintiffs in this cause. After his death, the land devised to him was sold by order of the orphans’ court for the payment of debts. The petition, order and deed, describe it particularly, as two hundred acres by metes and bounds, being the same devised to him by his father, and it was asked to be sold, and was sold expressly subject to the payment of the remaining sums, to which it was subjected by the will of his father. Samuel Diehl was the purchaser. The guardian and executors sold fifty acres of the part • devised to Peter. After Peter came of age, he determined not to lake the land devised to him; and his brothers and sisters, and the guardian of Henry’s children entered into an agreement on the 20th of December, 1822, in which, after reciting the devise to him, it was “mutually agreed between Peter and his brothers and sisters, legatees as aforesaid, that the said land so devised to Peter Hege, should be sold for the best price that could be obtained for the same, and the money arising from the sale should be equally divided among the children of the said Christian Hege, or their, representatives, so that the said Peter Hege, out of the whole real estate of said Christian Hege, shall receive an equal share with his brothers and sisters, and no more:” and then persons are appointed to sell, and the legatees covenant to release to the purchaser. The land was sold, and the price was, for the purposes of this [90] decision, admitted to be in the hands of those who sold, who are defendants. On the 9th of March, 1824, the administrators of Henry settled their account, and there was a balance in their favour of one hundred and twenty-four dollars, paid in discharge of debts beyond the amount of the personal estate and of the lands sold, and were discharged by the orphans’ court, before this suit brought. Jacob Hegc, one of the defendants, is the surviving executor of Christian liege, deceased. Samuel Diehl, who purchased the land devised to Henry, claimed to be entitled to Henry’s share, of the land devised to Peter, subject to the payment of six hundred dollars per year, which was to be divided among the legatees, of whom Henry was one, in equal por- ■ lions; and contended that all the interest in lands devised to Henry by the will of his father, was sold and purchased by him, Diehl, On inspecting the sale on the records of the orphans’ court, it is not so. There is no room for dispute; it is the two hundred acres devised to Henry, by the will of his father, which is sold. It has been contested whether Henry’s interest in the land devised to Peter, was land or personal estate, in the event of Peter refusing to keep it, but it is entirely unnecessary to decide that; for whether it was one or the other, it was not embraced in the application for sale, in the order of the court, nor in the deed. Henry was dead, and liis land sold, and deed made, in June 1821, Peter did not refuse to take till 1822. It would be strange if the orphans’ court had ordered a debt amounting to one thousand dollars, and falling due in successive years, in instalments of sixty dollars per year, to be sold at auction. It would be still more strange if a claim of this kind, charged on Peter’s land, should be transferred by a sale of Henry’s interest in another and different tract; and that without its being once alluded to in the evidence of that sale. Diehl represents Henry entirely, as to his interest in the two hundred acres devised to him, because he purchased and paid for that interest, but he docs not represent ilc?iry as to any thing else devised to him by that will, for the same reason, to wit: that he has not bought or paid for any interest in any part of what was devised to Henry, except the two hundred acres of land. Another point was made, and much discussed, whether this suit could be maintained by the children of Henry, or must be brought by his administrators, there being debts yet unpaid; for the administrators of Henny, having paid debts of his beyond the assets which came to their hands, stand in the place of the creditors to whom they paid. The debts are the debts of the deceased, as much .as if they yet belonged to the original creditor. In England, lands of a deceased are not charged with the debts, unless of a particular description; here, all lands left by a deceased are liable for every debt of a deceased; there, lands descend gene [91] rally to one heir; here, they go to several, if several stand In the same relation to the intestate. There, lands go in one direction, and personal estate is distributed differently. Here, in almost every case, the lands and personal estate go- to the same persons, and in the same proportions: all the cases cited in this cause to shew what in England goes to the heir, and what to the executor, are inapplicable to this case. Where debts are unpaid in this country, they are levied equally from lands or goods, stated to be, and actually for this purpose being, in point of law, in the hands of the administrators. Where the lands themselves are to be recovered, the suit is by the heirs. Where debts are to be recovered, or personal property, or damages for breach of contract with the deceased, the administrator must bring the suit. I shall, on this subject, only refer to the case of Lee v. Wright, in 1 Rawle, 149, decided by this court in December term last, in which every thing contended for in this case was considered. The decision of the court was right on both points, and judgment is affirmed.