Estate of Duvall

Opinion, Mr. Justice Sterrett : In this proceeding appellant seeks to enforce payment of the legacy of eight hundred dollars, bequeathed to her in 1865 by her grandfather, David Duvall, “ to be paid when she is twenty-one years of age.” Her claim is based on the following grounds: 1. That the legacy is a charge on testator’s real estate devised to the appellees. 2. That her uncle Alexander Duvall, one of the appellees, is liable either personally, or by virtue of his office as executor of his father’s will. [184] In an opinion, reciting all the facts and fully considering the questions presented, the Orphans’ Court held that appellant’s legacy is not and never was a lien on the land; that Alexander Duvall neither expressly nor impliedly assumed payment of the lagacy; nor is he liable therefor by virtue of his office as executor, because no assets applicable to the payment thereof ever came into his hands; and hence this proceeding cannot be sustained. An examination of the record has satisfied us that the court was right in these conclusions. As a general rule, “ the personal estate is not only the primary, but prima facie the exclusive fund for the payment of legacies, and this conclusion cannot be repelled by showing that the testator had no personal estate when the will was executed, and must therefore have intended that the legacies should come out o£ the real estate.' • Where one dies without leaving sufficient personal estate for the payment of his bequests, they are adeemed wholly or pro tanto, unless there is something more than the mere gift of the bequest to denote an intention that it should be paid out of the land: ” Aldrich v. Cooper, 2 W. & T. Lead. Cas. in Eq. 346. “ While the intention to charge lands with the payment of legacies need not be declared in express terms, it must be disclosed by the will itself, and cannot be inferred from the mere fact that, at the time of its execution, the testator owned no personal estate; non constat that he may not do so at a subsequent date: ” Haddock’s Est., 18 W. N. 243. The intention of the testator to create a charge on real .estate is to be carried out whenever it is discoverable from anything contained in his will, but there must be something on the face of the instrument from which it can be inferred: Okeson’s App., 59 Pa. 100. ■ There is not the slightest intimation, in any part of the will before us, that the testator intended the legacy in question to be paid out of his real estate. On the contrary, the indications are all the other way. The bequest to appellant is a general pecuniary legacy, “ to be paid when she is twenty-one years of age.” Testator’s real estate, consisting of three pieces, is unconditionally and specifically devised to his son Alexander and two of his daughters, respectively. This case is clearly distinguishable from Clery’s App., 35 Pa. 54. In that case the intention to charge the realty was shown, not only in the [185] strongly implied exoneration of the personalty, but in the fact that tbe legacies became payable only on the termination of the life-estate of the testator’s widow, to whom the personal property was bequeathed absolutely; and in the further fact that the testator specifically directed the “ overseers ” of his will to “see that all the above legacies are paid.” The proposition that a devisee of land who acts as executor of the will, must either refuse to aecept’the unconditional devise, or render himself liable to pay pecuniary legacies, is wholly untenable. It does not appear that Alexander Duvall, either as executor of his father's will or in his individual capacity, did or omitted to do anything that should render him liable to payment of the legacy in question. The questions presented in this case are so fully considered and satisfactorily disposed of in the opinion of the Orphans’ Court that further comment is unnecessary. Decree affirmed, and appeal dismissed with costs to be paid by appellant.