State ex rel. Wroth v. Nicols , 10 G. & J. 27 ( 1838 )

Stephen, Judge,

delivered the opinion of the court.

This suit was instituted in the court below, upon a testamentary bond given by the executors of the last will and testament of Henry Tilghman, late of Kent county, deceased, for the payment of debts and legacies, pursuant to the provisions of the act of assembly, passed in the year 1798, ch. 101. The object of the suit was to recover a legacy given by the will of said Tilghman, to Sarah Jl. JVicols, to. be paid on her arrival at the age of sixteen years, the intermediate accruing interest to be paid annually to her guardian, or to such person as might have the care of her, for her use. The legatee dying before the legacy became payable, conformably to the terms of the will, the suit was brought by her administrator on the bond, given by the executors against the appellee, the surviving executor, to compel payment of the legacy, according to the terms and conditions of that bond. To the declaration filed upon it the defendant pleaded performance, and the plaintiff in his replication, assigned as a breach of the condition of the bond, the non-payment of the legacy, given by the will of the said Tilghman to his intestate. To this replication there was a rejoinder put in by the defendant, in which he attempts to repel the plaintiff’s claim, and bar its recovery on the bond given by the defendant, on the ground of a trust created by the will, which constituted the executors trustees of the legacy, and exonerated them from all liability on their bond for the payment of the same. Upon the best consideration we have been able to give to this subject, after all the light derived from an examination of the authorities referred to in the course of the argument, we have come to the conclusion,.that upon the true and legal construction of the will of Henry Tilghman, by which the legacy in question was bequeathed, the executors were not constituted trustees of the said legacy, nor responsible for the payment of the same, in the first instance in that character, to-the exclusion of their liability upon their bond. On the contrary we think that tjie suit was well brought upon the bond,, and that tíre matters and facts stated in the defendant’s third rejoinder to the plaintiff’s replication furnished no legal defence to the action. The testator directs that there shall be no appraisement or sale of his personal estate, but that his executors. should give bond, as the law directs, for the payment of his debts and legacies. In his will he directs his land called Dugan’s Delight, to be sold by a trustee named in the will, and the proceeds of sale to be paid by the trustee to his executors, which he directs to be considered as part of his personal estate, and to be applied to the payment of the legacies thereafter mentioned, including the legacy, the subject matter of the present controversy; and he charges the estate devised to his residuary devisee, with the payment of his debts and legacies in case his other estate should be insufficient. He also gives to each of his executors a commission of five per centum upon all of his personal estate, (excepting his household and kitchen furniture, and farming utensils,) including the money arising from the sale of the land directed to be sold, which should be distributed, paid away, or invested during their executorship. It is true, as was held in 9 Barnewall and Creswell, 489, the testator could not alter the legal character of the property, by directing that it should be considered part of his personal estate; and that the money in their hands would be held by them in the character of trustees as equitable assets, and not as legal assets, to be administered by them in their character of executors, in a due and legal course of administration. But the direction of the will in that respect, although legally unavailable, is strikingly illustrative of the testator’s intention, in requiring his executors to give bond for the payment of his debts and legacies, by which they subjected themselves to an absolute and unqualified responsibility for such payment, without regard to, and apart from any consideration, as to the sufficiency or insufficiency of his personal estate. The money arising from the sale of his real estate, was manifestly intended as an auxiliary fund, to supply a contemplated deficiency of the personalty, and together with the charge in the residuary clause of his will, was intended as an indemnity, to protect his executors from any loss or damage which might arise from the personal responsibility incurred by them in executing the bond he had required them to give. It is clear beyond controversy, that the executors are not expressly constituted trustees of the legacy in question, and are expressly charged by the will in their character of executors, with the payment of the legacy of 01,000, to Mrs. Rebecca Tilghman, of Philadelphia, after the expiration of live years from the death of the testator, the interest to be paid annually until the principal should become due; and the testator provides in his will, that his executors should not be responsible for the application of the money after the payment of the legacy as directed by the will. Upon the whole of this case, then as presented by the record, we think that the plaintiff’s right of action upon the bond, was not barred or extinguished by any trust created by the will of the testator as set out in the pleadings in this case; and that his right to recover the legacy in the suit instituted upon it, was unaffected and unimpaired, by any provision or trust in relation to such legacy contained in the will. From these premises the conclusion necessarily follows, that the matters and allegations contained in the defendant’s third rejoinder to the plaintiff’s replication, are substantially defective as a defence to the action, and wholly insufficient and inoperative in law to bar the plaintiff’s remedy upon the bond given by the defendant. If this view of the nature of the rejoinder be correct, the legal effect of the demurrer to the sur-rejoinder bringing before the court the whole record, and the well established principle being that the party in whose pleading the first substantial vice or defect is discovered must fail, it results as a necessary legal consequence, that the judgment of the court below in favour of the defendant was erroneous, and ought to be reversed.

JUDGMENT REVERSED AND PROCEDENDO ORDERED.