Birdsall v. Hewlett

1 Paige Ch. 33

• Court: New York Court of Chancery
• Decided: May 19, 1828
• Status: Published

Opinion

The Chancellor :—The payment of the legacies is a condition of the devise; and if the devisee, or his heirs, refuse to accept the devise and pay the legacies, the estate descends to the heirs at law of the devisor, but, in equity, chargeable with the payment. In this case, the devisee having accepted the devise, was personally liable for the legacies; but they are also an equitable charge upon the estate devised, in the hands of the defendants.

[1]

It is undoubtedly a general rule, that legacies charged upon the real estate, and payable at a future day, are not vested, and become lapsed if the legatee dies before the time of payment arrives.[2] This rule was at first adopted without any exceptions, and in direct opposition to that which existed in relation to legacies payable out of the personal estate. This was done for the benefit of the heir at law, who was a particular favorite of the English courts. I am not aware that it has ever been extended to a case where the estate was given to a stranger, upon the express condition that he paid the legacy charged thereon; and the rule has long since been much narrowed down, even as between the legatees and the heir at law.

In this case, the estate being given upon the express condition of the payment of the legacy, and the time of payment being postponed for the benefit of the estate, and not with reference to any particular circumstances in relation to the legatee, which might render it doubtful whether the legacy would ever be wanted, the legacy became vested at the same time that the estate in remainder became vested in the devisee: that is, at the death of the testator. [3] It was transmissible to the personal representatives of the legatee; and the complainant is entitled to a decree for the payment out of the estate.

The defendants having neglected and refused to pay the legacy, by which the complainant has been put to the expense of this litigation, the costs of the suit must also be ^charged upon the estate. The legatees are also entitled to interest from the time when the legacies became payable, by the death of the widow. (Glen v. Fisher, 6 John. Ch. Rep. 33.)

Glen v. Fisher, 6 John. Ch. 33.

This rule has been changed by statute in New York, in 1830. See 2 R. S. (4th ed.) 248, sec. 45; Bishop v. Bishop, 4 Hill, 138, as in most of the other states.

Marsh v. Wheeler, 2 Edward’s Ch. 156, 163; Harris v. Fly, 7 Paige 421; Kibler v. Whiteman, 2 Har. 401; Donner's Appeal, 2 Wats. & S. 327.