Glen v. Fisher

6 Johns. Ch. 33

• Court: New York Court of Chancery
• Decided: February 4, 1822
• Status: Published

Opinion

The Chancellob.

(1) The defendant has no right to require security to refund, before payment of the legacy, for he does not pay the legacy in a representative character. The devise was given to him on condition of paying such a legacy to the plaintiff, Catharine; and if he accepts of the devise, he takes it cum onere. This is the case of a devise, creating a charge on the person of the devisee, in ease of his acceptance of the gift, according to the distinction noticed in the case of Jackson v. Bull, (10 Johns. Rep. 148.) He did accept of the devise, and he became thereby absolutely and personally bound to pay the legacy: He has no right to create any condition precedent to the payment, and the law makes none. He who accepts a benefit under a will, must conform to all its provisions, and renounce every right inconsistent with them. This is an obvious and settled principle in equity. He accepts of the devise under the condition of conforming to the will, and a Court of equity will compel him to perform the condition ; for no man, says Ch. Baron Eyre, (Blake v. Bunbury, 1 Vesey, jr. 523.) shall be allowed to disappoint a will, under which he takes a benefit.

(2) The defendant is bound to pay interest from the time the legacy became payable. It was a charge upon the defendant in respect tb the land devised to him ; and as the land, of course, yields rents and profits, the payment of interest from the time the legacy was payable, is very just and reasonable j and the interest runs, though the legacy was not demanded when due.

(3) The plaintiffs are entitled to costs, for though no demand of the legacy is shown, the defendant says, in his answer, that if a demand had been made, it would not havé been complied with. A suit was, therefore, necessary on the part of the plaintiffs, by the admission of the defendant, and he ought, in justice, to be made chargeable with the costs. The pretence, that security to refund was wanting, was mere pretext, for the testator has been dead upwards of twelve years, and there is an admission of personal assets sufficient to pay debts; and the presumption from the lapse of time is, that there are no debts existing against the heirs, or personal representatives of the testator.

But, as the husband and wife are here suing for the wife’s legacy, the wife is entitled to a reasonable provision out of the legacy, small as it may be, before the decree in favour of the husband is pronounced. The doctrine is to be found in the case of Howard v. Moffatt, (2 Johns. Ch. Rep. 206.) and there must be a reference to ascertain what would be a proper settlement in this case, unless some amicable arrangement takes place, or the wife, voluntarily, on examination, waives any provision.

Decree accordingly.