Heatherington v. Lewenberg

Chalmers, J., delivered the opinion of the court. The question which underlies this case as agreed by both par [376] ties is this: When a testator devises both real and personal estate to a residuary legatee, making no discrimination between the two classes of property, but massing the two together as a common whole, is the realty, like the personalty, charged with the payment of prior pecuniary legacies? This question is answered in the affirmative by the case of Knotts v. Bailey, 54 Miss. 235. We see no reason to doubt the correctness of that decision, and it is decisive of the present case. Because the language of the residuary clause is,“ I give, bequeath, and devise all the remainder of my property, real and personal, after the above legacies are fully paid,” it is argued that the intention was to create a charge upon the land only as to “the legacies ” technically so called, and that the trust did not embrace the “claim” sued for here, which in the will is styled “ an annuity,” and not a “ legacy.” This distinction cannot be maintained. While the two words under many circa inst ances may have different meanings, they have not here. A man may purchase an annuity which is not a legacy, yet where an annuity springs alone from a will, and is given by it, it is a legacy; and we think that if any argument is to be drawn from the fact that it is only expressly declared in this will that the legacies are to be paid, the inference is rather against than in favor of the residuary legatee, since it might with some plausibility be said by the annuitant that the intention was that the legacies were to be paid at once out of the personalty, leaving the annuity which was to be enjoyed for two generations to rest upon and be protected by the large landed estate devised. It could scarcely have been intended by the testator that the personalty should be tied up indefinitely to meet the yearly demands of the annuitants, whose rights would be sufficiently and more appropriately secured by the land. 2. The present holders of the land cannot set up now the defense of innocent purchasers without notice for several reasons: (1) The bill which is demurred' to alleges that they had actual notice; (2) the defense, if available at all, must be pleaded; (3) tracing title, as they must, through the residuary clause of the will, they are bound by it and its legal meaning. 3. Neither can they set up by demurrer the fact that the annu [377] itant heretofore accepted the personal bond of the residuary legatee in lieu of her charge upon the land. The bill charges and the demurrer admits that “said obligation was only intended by the obligor to be collateral to and independent of complainant’s lien on the property of said estate to secure the payment of said annuity/’ If this was the obligation, the decree of the probate court, admitting that that court had jurisdiction over the matter at all, did not assume to give it any further force, and as thus stated, it clearly did not displace the charge executed by the will. Decree reversed, demurrer overruled, and sixty days given to answer.