Ridgely,Chancellor.
There is no ground for a decree in this cause against the representatives of Henry and John Gilder. Their estates were administered without any notice of this demand, and the administrators cannot be liable on this bill,—certainly not after such a lapse of time.
The case then remains to be considered with respect to Batchelder Chance and Absalom Gibbs, the purchasers of the lands alleged by the bill to be charged with the legacy of the complainant under the will of Reuben Gilder.
One question, arising out of the answers of Chance and Gibbs is, whether they have sufficiently set up as a ground of equitable defence that they are purchasers for a valuable consideration, without notice. They indeed allege that the complainant never gave them notice of her claim, and that she never demanded of them this legacy except by the exhibition of her bill in this Court; but this is not a sufficient plea, nor answer, of the want of notice. In Mitf. Pl. 215, 216, it is laid down, that in a plea of purchase for a valuable consideration without notice, the plea [338] must aver the consideration .and the actual payment of it, and it must deny notice of the complainant’s title or claim previous to the execution of the deed and payment of the consideration. The notice so denied must be notice of the existence of the complainant’s title, and not merely notice of the existence of a person who could claim under that title. If particular instances of notice or circumstances of fraud are charged, these must be denied as specifically and particularly as they are charged in the bill. The special and particular denial of notice, or of fraud, must be by way of answer, in order that the complainant may be at liberty to except to its sufficiency.
In Bodman vs. Vandenbendy, 1 Vern. 179, which was a bill by a dowress to remove a trust term, the defendant pleaded that he was a purchaser, but he did not deny notice, lie was ordered to answer. Notice must be denied,though not charged in the bill. It may be sufficient to. deny it by plea or answer, but it is best to deny it by both plea and answer. 8 P. Wms. 244, 2 Ves. Jr. 45.8-9 : 9 Ves. Jr. 32. Chancellor Kent, in 1 Johns. Ch. Rep. 575, says, “if a party means to defend himself on the ground that he was a bona fide purchaser for a valuable consideration, without notice of a trust, he must deny the fact of notice and every circumstance from which it can be inferred.” In Mitf. Pl. 216, as before observed, it is stated that the consideration should be averred, and the actual payment of it. And in Maitland vs. Wilson, 3 Atk. 814, on a bill to defeat a purchase for fraud and imposition, Lord Iiardwicke said, “it should have been averred by the plea that the sum mentioned as the consideration in the deed was really and bona fide paid, and it ought to have been pleaded distinctly and separately from the recital in the deed.”
A plea of a purchase for a valuable consideration is a plea in bar. The want of notice creates an equitable bar; but where the want of notice is not pleaded no bar is presented. And so, in an answer. In Casson vs. Round, Prec. [339] in Ch. 236, the defendant by his answer did not deny notice positively, but evasively; and the complainant could not prove sufficient notice; yet, because the defendant had not denied notice positively, a decree was made against the defendant. The defence made by the answer should be as particular in stating the want of notice and the payment of a valuable consideration as in a plea; for whether it be by plea or by answer, it should present an equitable bar or defence against the recovery.
In this case the defendants, Gibbs and Chance, allege that they purchased their several parcels of land by virtue of certain orders of the Orphans’ Court. Suppose they did;—what claim have they to the protection of this Court ? They have not denied notice of the legacy, nor have they alleged the payment of a valuable consideration; and, therefore, they have not made a case of conscience, to warrant the protecting interposition of this Court. It may be argued that it is to be inferred from their answers that they actually paid their respective purchase moneys. That may be so; but such a fact is not to be taken by inference. It must' be positively averred, independently of the recital in the deed. 3 Atk. 813. Because, therefore, these two defendants, in their several answers, have not denied notice of this will, nor of the bequest of this legacy to the complainant, and have not alleged the actual payment of a valuable consideration, no sufficient defence is set up on the ground of their being purchasers for a valuable consideration, without notice; and therefore this case must depend upon the other questions raised, viz; first, upon the effect of the will in charging the lands devised to Henry Gilder and John Gilder; and second, upon the effect of lapse of time.
The most important question in the cause is whether the lands devised by the will to Henry Gilder and John Gilder, were charged with this legacy.
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Ridgely,Chancellor.
There is no ground for a decree in this cause against the representatives of Henry and John Gilder. Their estates were administered without any notice of this demand, and the administrators cannot be liable on this bill,—certainly not after such a lapse of time.
The case then remains to be considered with respect to Batchelder Chance and Absalom Gibbs, the purchasers of the lands alleged by the bill to be charged with the legacy of the complainant under the will of Reuben Gilder.
One question, arising out of the answers of Chance and Gibbs is, whether they have sufficiently set up as a ground of equitable defence that they are purchasers for a valuable consideration, without notice. They indeed allege that the complainant never gave them notice of her claim, and that she never demanded of them this legacy except by the exhibition of her bill in this Court; but this is not a sufficient plea, nor answer, of the want of notice. In Mitf. Pl. 215, 216, it is laid down, that in a plea of purchase for a valuable consideration without notice, the plea [338] must aver the consideration .and the actual payment of it, and it must deny notice of the complainant’s title or claim previous to the execution of the deed and payment of the consideration. The notice so denied must be notice of the existence of the complainant’s title, and not merely notice of the existence of a person who could claim under that title. If particular instances of notice or circumstances of fraud are charged, these must be denied as specifically and particularly as they are charged in the bill. The special and particular denial of notice, or of fraud, must be by way of answer, in order that the complainant may be at liberty to except to its sufficiency.
In Bodman vs. Vandenbendy, 1 Vern. 179, which was a bill by a dowress to remove a trust term, the defendant pleaded that he was a purchaser, but he did not deny notice, lie was ordered to answer. Notice must be denied,though not charged in the bill. It may be sufficient to. deny it by plea or answer, but it is best to deny it by both plea and answer. 8 P. Wms. 244, 2 Ves. Jr. 45.8-9 : 9 Ves. Jr. 32. Chancellor Kent, in 1 Johns. Ch. Rep. 575, says, “if a party means to defend himself on the ground that he was a bona fide purchaser for a valuable consideration, without notice of a trust, he must deny the fact of notice and every circumstance from which it can be inferred.” In Mitf. Pl. 216, as before observed, it is stated that the consideration should be averred, and the actual payment of it. And in Maitland vs. Wilson, 3 Atk. 814, on a bill to defeat a purchase for fraud and imposition, Lord Iiardwicke said, “it should have been averred by the plea that the sum mentioned as the consideration in the deed was really and bona fide paid, and it ought to have been pleaded distinctly and separately from the recital in the deed.”
A plea of a purchase for a valuable consideration is a plea in bar. The want of notice creates an equitable bar; but where the want of notice is not pleaded no bar is presented. And so, in an answer. In Casson vs. Round, Prec. [339] in Ch. 236, the defendant by his answer did not deny notice positively, but evasively; and the complainant could not prove sufficient notice; yet, because the defendant had not denied notice positively, a decree was made against the defendant. The defence made by the answer should be as particular in stating the want of notice and the payment of a valuable consideration as in a plea; for whether it be by plea or by answer, it should present an equitable bar or defence against the recovery.
In this case the defendants, Gibbs and Chance, allege that they purchased their several parcels of land by virtue of certain orders of the Orphans’ Court. Suppose they did;—what claim have they to the protection of this Court ? They have not denied notice of the legacy, nor have they alleged the payment of a valuable consideration; and, therefore, they have not made a case of conscience, to warrant the protecting interposition of this Court. It may be argued that it is to be inferred from their answers that they actually paid their respective purchase moneys. That may be so; but such a fact is not to be taken by inference. It must' be positively averred, independently of the recital in the deed. 3 Atk. 813. Because, therefore, these two defendants, in their several answers, have not denied notice of this will, nor of the bequest of this legacy to the complainant, and have not alleged the actual payment of a valuable consideration, no sufficient defence is set up on the ground of their being purchasers for a valuable consideration, without notice; and therefore this case must depend upon the other questions raised, viz; first, upon the effect of the will in charging the lands devised to Henry Gilder and John Gilder; and second, upon the effect of lapse of time.
The most important question in the cause is whether the lands devised by the will to Henry Gilder and John Gilder, were charged with this legacy.
There are no words in the first clause of the will to [340] charge the legacy on the real estate. The legacy is not there mentioned. The testator says:—First, “Ida direct “ that my just debts and burying expenses be paid by my “ executors hereinafter named.” These words, if debts were not chargeable by law on land, would charge them in this will, if the personal estate, which is the proper fund to pay debts and legacies, were insufficient. So far, no charge is made, nor intention expressed, as to the payment ot the legacies. If the testator intended to charge the legacies upon the land it may be asked, why he did not include them, in this clause, with the debts and burying expenses ? After devising his real estate to his sons, Henry and John, in fee, he adds these words,—“ and also, “ all my personal estate, after paying the legacies herein- “ after mentioned.” The charge upon the real estate, if there be any, must arise out of these words; and I apprehend, that the testator designed by them only to dispose of the personal estate and to charge the legacies upon it. Such an intention might well suit the personal estate of the testator; for, it is agreed by all parties that it was sufficient for the payment of the debts and legacies ; and the omission to file an inventory and appraisement shows the views of the executors,and creates a strong presumption of,such sufficiency. The two clauses distinctly apply, one to the real and the other to the personal estate. The personal estate only is the antecedent to the relatives, “ after “ paying the legacies;” for a provision had before been made for the debts, and by no necessity can the words “ after paying the legacies,” be enlarged to comprehend the real estate, unless that were expressly charged, or the intention of the testator were clear and unequivocal that it should be so. The omission to charge the legacies in the first clause shows that, at that moment or in that part of the will, the payment of the legacies had not been thought of, or that the testator postponed that matter until the personal estate should be disposed of in order that they might [341] be charged upon it. I have examined the original will, and it seems to me that when it was first drawn,the words, “ and also all my personal estate after paying the legacies hereinafter mentioned,” were omitted; and ! conclude that it afterwards occurred to the testator to dispose of the personal estate and to charge the legacies upon it. These words appear not to have been written at the same time with the rest of the will, although they are in the handwriting, I conceive, of the same person. The design seems to be so apparent, in view of all these circumstances, that I cannot bring my mind to consider the testator as intending to charge these legacies upon the real estate, or that he has done so. I should hold myself bound by the adjudged cases, if they applied to this will; but, under my view of it, they do not, inasmuch as the testator has expressly charged the legacies upon the personal estate and by no implication on the real estate. That had been fully devised before the payment of the legacies is mentioned.; and when he does speak of their payment he connects it with the personal estate, and makes it a personal charge on Henry and John. He does not direct his executors to pay the legacies,nor in any way attach the payment to them other than as having the personal estate given to them.
In this decision I govern myself by the will and do not contradict a single case before cited.
I have not thought it necessary to enter into any consideration of the lapse of time insisted on as a defence, being quite satisfied to decide the case upon the construction of the will.
Let the bill be dismissed.