The opinion of the court was delivered by
Kennedy, J.
The defendants below, who are the plaintiffs in error, resisted the claim of the plaintiff below, for the arrears of the annuity of twelve pounds, charged upon the one hundred and fifty acres of land, devised to Henry Singer, Jr., by the last will of his fatjher, Henry Singer, the elder, on the ground that the annuity became extinct, either in whole or in part, by means of the one undivided fifth of the land’s having descended to Catharine Heffernan, the annuitant and intestate of the plaintiff below, as one of the five heirs at law of the devisee of the land, who died intestate, as it appears from the petition of John Singer to the orphans’ court, on the first of July, 1807. The court below, however, were of opinion that the circumstance of the annuitant’s having become by descent the owner of an undivided fifth part of the land, as tenant in common, did not affect her right to have the full amount of the annuity thereafter paid to her, in any degree whatever, and accordingly instructed the jury to that effect. To this instruction the counsel for the defendants below took exception, and have assigned it here as the first error. In the first place it may be proper to observe, that the claim to the annuity is not made against the estate of Henry Singer, the devisee, generally, as if he had been personally liable originally for the payment of it, but against the fund arising from the sale of the land, or rather one hundred acres thereof, whereon it was charged •and made a lien by the will of the testator, who gave it. For supposing the annuitant to have been entitled to claim the whole of the annuity against the devisee personally in his lifetime, or his personal representatives after his death, yet it may present a different question, whether she, having become the owner of an undivided portion of the land, upon which the annuity was charged, could do so as against it thereafter. Now it is very clear, that, if she had become the owner of the whole of the land so charged, the annuity would have become entirely extinct thereby. Notwithstanding, however, the court below considered this would have been the result of such an event, yet they entertained the opinion, that a partial ownership of the land by the annuitant would not operate as an extinguishment even pro tanto. Under the statute regulating the descent of estates of inheritance in Pennsylvania, no distinction is or can be made as to the quantum that each of the heirs standing in .equal degree to the ancestor shall take, where every thing like advancement to any of them by the ancestor in his lifetime is out of the question. Their interests are made equal by the statute; but in the case before us, if it were to be adjudged that the annuitant took her undivided fifth part discharged of the annuity altogether, and that the other heirs took their respective portions of the estate, charged exclusively with the whole of if, the consequence is, [541]*541that the annuitant would be held to have acquired by descent a greater interest in the estate than either one of the other heirs. Or suppose that the interest of one of the other heirs in the land charged-had been sold under a judgment and execution against him in the, lifetime of the annuitant, when arrears of the annuity were due to her, and she had claimed and been paid the amount of such arrears’ out of the money arising'from the sale, would it not have been just as equitable that the heir, whose portion of the land charged- had thus been sold and made to pay the whole amount of the arrears due to the annuitant, should have had contribution from the other heirs? It would seem as if but one answer could be given to this question, and that a stronger case for making equality of burthen the rule of equity, as also that of decision in the case, could not be easily imagined, and is never likely to happen. Again, suppose another person, instead of the annuitant, had in such case been the’ owner, by descent of her fifth of the land charged, could it be doubted for a moment that such person would not have been liable to con-tribution? Certainly not. Then why should the annuitant be exempt from it—or, in other words, why should not one-fifth of the annuity be' considered as' extinguished, and thus equalize the interests respectively which the five heirs acquired by descent in the land. Though heirs will not be permitted to claim contribution against a purchaser from their ancestor, yet, as against each other, there is no reason why they should not have it. Boyer v. Rivettte, 3 Bulstr. 320, per Jones, J.; and 321, per Dodridge, J. The distinction in this respect is founded in reason, because the heirs succeed to the estate as the ancestor held it, and stand as it were in his place, bound to fulfil his obligations, so far as they were a charge upon the estate at the time of his death, or otherwise give it up for that purpose. Had the annuitant acquired her interest in the land, charged with the payment of her annuity, by purchase, it is not necessary to say here what would have been the effect of it, whether it would have operated so as to have extinguished the whole of the annuity or not. Supposing, however, that it- would, still it does not necessarily follow that the acquisition of a similar interest by the act of the law would produce such an effect: because the maxim, actus legis nulli facit injuriam, may interpose to prevent it. As in the case'of a rent charge, if the grantee purchase part of the land, the rent thereby becomes extinct, and hé shall never have a writ of annuity; but if the rent charge be determined by the act' of God, or'of the law, the grantee may have a writ of annuity. Co. Lit. 148, a. So if the tenant of the land, in case of a rent charge, convey part thereof to the father of the party entitled.to the rent, and the father dies, whereupon the land so conveyed descends to the owner of the rent, the rent shall not thereby become suspended or extinguished in whole, but in part only,-and shall be apportioned. Co. Lit. 148, b: The result would doubtless-be the same in the case of land charged with a rent' seek, because the only distinction between'a rent seels; [542]*542and a rent charge is, that the remedy by distress is granted with and accompanies the latter. The charge in question having been without the remedy by distress for its recovery, may therefore be very justly considered the same as a rent seek, or an annuity charged upon the land, and as falling under the same rules. We therefore think that the court below erred in not having instructed the jury to apportion it, if they found for the plaintiff, by reducing it from twelve pounds to nine pounds twelve shillings per annum.
The second error is, that the court erred in charging the jury, that the judicial sale made by the sheriff of the fifty acres to John Dotterel-, for 150 dollars, did not discharge so much of the claim of the intestate of the plaintiff below, as the fifty acres ought in equity to bear; according to their proportional value to that of the whole one hundred and fifty acres. We are of opinion that this error cannot be sustained. The land upon which the claim of the intestate of the plaintiff below was a charge, consisted of two separate lots, one containing one hundred acres, and the other fifty acres: so that in this respect she may be considered as having two distinct funds, to which she had a right in law to resort, in order to have her claim satisfied. In such case, having a clear legal right to resort to either for payment, she of course had the right of forbearing to make her claim upon the first that was converted by a judicial sale into money.
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The opinion of the court was delivered by
Kennedy, J.
The defendants below, who are the plaintiffs in error, resisted the claim of the plaintiff below, for the arrears of the annuity of twelve pounds, charged upon the one hundred and fifty acres of land, devised to Henry Singer, Jr., by the last will of his fatjher, Henry Singer, the elder, on the ground that the annuity became extinct, either in whole or in part, by means of the one undivided fifth of the land’s having descended to Catharine Heffernan, the annuitant and intestate of the plaintiff below, as one of the five heirs at law of the devisee of the land, who died intestate, as it appears from the petition of John Singer to the orphans’ court, on the first of July, 1807. The court below, however, were of opinion that the circumstance of the annuitant’s having become by descent the owner of an undivided fifth part of the land, as tenant in common, did not affect her right to have the full amount of the annuity thereafter paid to her, in any degree whatever, and accordingly instructed the jury to that effect. To this instruction the counsel for the defendants below took exception, and have assigned it here as the first error. In the first place it may be proper to observe, that the claim to the annuity is not made against the estate of Henry Singer, the devisee, generally, as if he had been personally liable originally for the payment of it, but against the fund arising from the sale of the land, or rather one hundred acres thereof, whereon it was charged •and made a lien by the will of the testator, who gave it. For supposing the annuitant to have been entitled to claim the whole of the annuity against the devisee personally in his lifetime, or his personal representatives after his death, yet it may present a different question, whether she, having become the owner of an undivided portion of the land, upon which the annuity was charged, could do so as against it thereafter. Now it is very clear, that, if she had become the owner of the whole of the land so charged, the annuity would have become entirely extinct thereby. Notwithstanding, however, the court below considered this would have been the result of such an event, yet they entertained the opinion, that a partial ownership of the land by the annuitant would not operate as an extinguishment even pro tanto. Under the statute regulating the descent of estates of inheritance in Pennsylvania, no distinction is or can be made as to the quantum that each of the heirs standing in .equal degree to the ancestor shall take, where every thing like advancement to any of them by the ancestor in his lifetime is out of the question. Their interests are made equal by the statute; but in the case before us, if it were to be adjudged that the annuitant took her undivided fifth part discharged of the annuity altogether, and that the other heirs took their respective portions of the estate, charged exclusively with the whole of if, the consequence is, [541]*541that the annuitant would be held to have acquired by descent a greater interest in the estate than either one of the other heirs. Or suppose that the interest of one of the other heirs in the land charged-had been sold under a judgment and execution against him in the, lifetime of the annuitant, when arrears of the annuity were due to her, and she had claimed and been paid the amount of such arrears’ out of the money arising'from the sale, would it not have been just as equitable that the heir, whose portion of the land charged- had thus been sold and made to pay the whole amount of the arrears due to the annuitant, should have had contribution from the other heirs? It would seem as if but one answer could be given to this question, and that a stronger case for making equality of burthen the rule of equity, as also that of decision in the case, could not be easily imagined, and is never likely to happen. Again, suppose another person, instead of the annuitant, had in such case been the’ owner, by descent of her fifth of the land charged, could it be doubted for a moment that such person would not have been liable to con-tribution? Certainly not. Then why should the annuitant be exempt from it—or, in other words, why should not one-fifth of the annuity be' considered as' extinguished, and thus equalize the interests respectively which the five heirs acquired by descent in the land. Though heirs will not be permitted to claim contribution against a purchaser from their ancestor, yet, as against each other, there is no reason why they should not have it. Boyer v. Rivettte, 3 Bulstr. 320, per Jones, J.; and 321, per Dodridge, J. The distinction in this respect is founded in reason, because the heirs succeed to the estate as the ancestor held it, and stand as it were in his place, bound to fulfil his obligations, so far as they were a charge upon the estate at the time of his death, or otherwise give it up for that purpose. Had the annuitant acquired her interest in the land, charged with the payment of her annuity, by purchase, it is not necessary to say here what would have been the effect of it, whether it would have operated so as to have extinguished the whole of the annuity or not. Supposing, however, that it- would, still it does not necessarily follow that the acquisition of a similar interest by the act of the law would produce such an effect: because the maxim, actus legis nulli facit injuriam, may interpose to prevent it. As in the case'of a rent charge, if the grantee purchase part of the land, the rent thereby becomes extinct, and hé shall never have a writ of annuity; but if the rent charge be determined by the act' of God, or'of the law, the grantee may have a writ of annuity. Co. Lit. 148, a. So if the tenant of the land, in case of a rent charge, convey part thereof to the father of the party entitled.to the rent, and the father dies, whereupon the land so conveyed descends to the owner of the rent, the rent shall not thereby become suspended or extinguished in whole, but in part only,-and shall be apportioned. Co. Lit. 148, b: The result would doubtless-be the same in the case of land charged with a rent' seek, because the only distinction between'a rent seels; [542]*542and a rent charge is, that the remedy by distress is granted with and accompanies the latter. The charge in question having been without the remedy by distress for its recovery, may therefore be very justly considered the same as a rent seek, or an annuity charged upon the land, and as falling under the same rules. We therefore think that the court below erred in not having instructed the jury to apportion it, if they found for the plaintiff, by reducing it from twelve pounds to nine pounds twelve shillings per annum.
The second error is, that the court erred in charging the jury, that the judicial sale made by the sheriff of the fifty acres to John Dotterel-, for 150 dollars, did not discharge so much of the claim of the intestate of the plaintiff below, as the fifty acres ought in equity to bear; according to their proportional value to that of the whole one hundred and fifty acres. We are of opinion that this error cannot be sustained. The land upon which the claim of the intestate of the plaintiff below was a charge, consisted of two separate lots, one containing one hundred acres, and the other fifty acres: so that in this respect she may be considered as having two distinct funds, to which she had a right in law to resort, in order to have her claim satisfied. In such case, having a clear legal right to resort to either for payment, she of course had the right of forbearing to make her claim upon the first that was converted by a judicial sale into money. If any objection existed on the part of any one to her doing so at the time, he ought then to have made it known, and to have invoked the aid of equity to prevent her from doing so, if he had any sufficient ground for it. Her right to go against either fund, or any portion of the land charged, being a perfect legal right, could not be affected by a mere equitable objection, unless it were made in time to prevent her from losing by it. But the moneys arising from the previous sales having been all appropriated to the payment of other claims,cannot now be come at by the plaintiff below; and no notice having been given to him or his intestate that such a thing was desired, it is obviously too late to insist now upon having recourse thereto, or upon his losing any portion of his claim because he or his intestate did not do so. If we had a court of chancery, the right of the intestate of the plaintiff below at law, to resort to either fund, could have been resisted only in that court; but it is too plain to admit of illustration, that if such application were not made until after the plaintiff’s intestate had permitted one of the funds, upon which she had a lien, to be appropriated to the discharge of junior claims, it would be too late then to make it, as no alternative remained.
The third error presents substantially the same question as the second, and therefore requires no further answer in order to show that it cannot be sustained.
The fourth error is also untenable. The claim of the plaintiff below, in right of his intestate, is not, properly speaking, founded upon the bond there alluded to: for if it had, it might be lost as to her estate upon another ground, very different from that of its hav[543]*543ing been reduced into possession by her- husband, as is contended it was, by his taking the bond payable to himself. The bond was no lien upon the land before the death of the obligor, and hence, for aught we know, if the claim of the plaintiff below rested upon it, the money arising from the sale of the land may be all required to satisfy prior liens. But the claim of the plaintiff below is not founded upon the bond. It is founded upon a recognizance, acknowledged by John Singer in the orphans’ court, when the land was decreed to him, which bound it from its date. The condition of this recognizance is, that the money should be paid-to the heirs severally of Henry Singer, the younger, in their respective proportions: so that the intestate of the plaintiff below being one of the heirs, and not her husband, the money claimed in this action was made payable to her, and she having survived her husband, was entitled to it at the time of her death, which gives the plaintiff below a right to claim it as her representative.
There is nothing in the fifth error;, because the issue joined here being a feigned one, ordered by the court for the purpose of ascertaining matters of fact, they might nominate whom they pleased as parties for that purpose.
The question embraced in the sixth error was settled by this court in Heffernan v. Addams, 7 Watts 116, where it was determined that the letter of attorney mentioned in this error was not legally executed—in short, not executed at all.
The question raised by the seventh error is answered fully in the answer given to the first error.
We also think that the court were right in the instruction given to the jury, which is excepted to in the eighth and last error. Catharine Heffernan, the intestate of the plaintiff below, being a daughter of the testator, William Singer, the elder, it may therefore be reasonably supposed that he intended the twelve pounds per annum as a partial support for her at least, and for this purpose his desire was, that it should be punctually paid to her, that she might by means of it be made comfortable.- For want of it, however, it may be, that debts were contracted upon which she had to pay interest. But besides, as it regarded her, the twelve pounds are not to be looked upon as the interest of money that was due or o\ying to her. It was itself principal to her, so far as she had á claim to it; and therefore ought to have been punctually paid. And had it been so, she would have had thfe use of it, which we must presume would have been equal in value to the interest; but having lost the use of it, by reason of the delinquency of the owners of the land, who were bound to have paid it regularly as it fell due, it is but reasonable that interest should be allowed as a compensation for the loss so occasioned.
The judgment is reversed on account of the first error assigned, and a venire de novo awarded.