Cook v. Grant

1 Paige Ch. 407

• Court: New York Court of Chancery
• Decided: February 17, 1829
• Status: Published

Opinion

*The Chancellor :—It is not necessary for the decision of this cause, to examine the question whether Henry J. Cook was originally liable for the payment of the legacies charged on the land devised to him. This bill is not framed properly, or with the necessary parties to settle that question here, without reference to the proceedings and decree in the original suit. The only question now" is, whether by that decree he was personally charged with the payment of the legacies. The legatees were bound to ask and obtain all the relief to which they were equitably entitled, in the first suit. If they had claimed to charge him personally in that suit, and obtained such a decree, it is hardly probable he would have left the property to be sold for a nominal sum merely. He has paid part of the legacies, and has received nothing under the devise. The life estate of his mother continued till after the sale under the decree. Although he had before that time joined with her in a conveyance of the property, he was bound to refund the whole purchase-money under his covenant of warranty.

On looking into the decree in that case, it is clear that it. never was intended to charge the devisees or the purchasers under them, with the payment of these legacies, personally. It is an absolute decree for the sale of the property, and the distribution of the proceeds only. There is not even an option given to the defendants in that suit to pay the money, or to have the land sold to satisfy the legacies. It is as much personal decree against the purchasers as against the devisees, but it never was intended to be personal against either. The complainants’ bill must be dismissed with costs.