Power v. Jenkins ( 1859 )

Bartol, J.,

delivered the opinion of this court.

The only question which it is necessary for us to determine-on this appeal, is, what are the rights of the parties to the particular fund, upon which the decree of the Circuit court operates ?

It appears from the record, that after the death of the testa-tor, Ann Power, elected to take the annuity of one thousand dollars for her life, as provided by the will; and afterwards William Power with Thornton A. Jenkins and wife, united in a mortgage, conveying certain real estate of which the testator died seized, for the purpose of securing to said Ann Power atid Isabella Power, the payment of the life annuities respectively given to them by the will. The bill in this case was filed by said life annuitants, and Elizabeth Power the widow aud sole devisee of William Power, and on the 22nd day of June 1854, the said real estate embraced in the mortgage, was decreed to be sold, and the fund now in controversy is the proceeds of said sale.

The decree or order from which this appeal was taken, was passed in said cause on the 17th day of September 1855, and, after directing the investment of so much of said fund, as will be sufficient to yield the annuities or yearly sums of one thousand dollars, and of thirty dollars to be paid over to said annuitants respectively, the said decree proceeds to adjudge and order that, on the death of the life annuitants, the principal of said investment shall be paid over to the child or children of Ann Jenkins, who may then be living; to the exclusion of the devisee and representative of William Power, (reserving however, for future decision, the rights of Thornton A. Jenkins, the husband of Ann Jenkins,) and that the surplus of the proceeds of sale, which shall remain after the investments are made, shall be paid, the one-half thereof to Elizabeth Power, and the one-half to the children of Ann Jenkins deceased. Prom the latter part of the decree, awarding one-haif of the surplus to Elizabeth Power, Jenkins and his children have appealed. But this appeal, we are clearly of opinion, cannot be sustained; for whatever may be the construction of the 2nd and 3rd clauses of the will, Elizabeth Power as devisee of William Power, would be entitled to one-half of said surplus under the residuary clause.

Mrs. Elizabeth Power has appealed from that part of the decree which awards to the child or children of Ann Jenkins, after the life annuities shall cease, the principal of the fund invested; and in our opinion that part of the decree is erroneous, and must be reversed.

In the view we have taken of this case, the right to- that fund, does not in any manner depend' upon- the construction of the words of the second and third clauses of the will, which dispose of the sums given to Ann Power and Isabella Power, after the death of the annuitants. The bequests in the will to Ann and Isabella, are pecuniary legacies, which are not, either by the terms of the will, or by operation of law, chargeable upon the real estate. See Stevens vs. Gregg, 10 G. & J., 143. Cornish vs. Willson, 6 Gill, 320.

Even if it were admitted, without however meaning to decide that question, that Ann Power, the widow, might by reason of her rights under the act of Assembly, as “purchaser with a fair consideration,” be entitled to charge her annuity upon the realty, that right could not be claimed by the other life annuitant, nor by the- parties to whom the annuities are-given, after the death of the life annuitants.

They are mere pecuniary legatees, who can no more charge the realty with the payment of their legacies, than could Isabella the annuitant for life do- so, independently of the mortgage.

By the residuary clause of the will, the real estate which has been sold, was vested in fee in William Power and Ann Jenkins. The mortgage,.by its terms and legal effect, created a lien upon the estate conveyed, only in favor of the mortgagees, Ann and Isabella, and to secure to them the payment of the two annuities for life given to them by the will. When, they shall have been paid, the whole purpose of the mortgage will be gratified. Whoever may be entitled to the legacies after the death of the life annuitants,, cannot claim to subject the lands mortgaged, to the payment of their legacies. This would be giving an effect to the mortgage not warranted by its terms, or contemplated by the parties to it. After its execution the equity of redemption remained in the mortgagors, and, upon the payment of the sums secured to Ann and Isabella, the property mortgaged would revert to the mortgagors,, as if no such mortgage had been made; and, as a consequence, the proceeds of the sale, subject only to the claim of the life annuitants, remain the properly of the mortgagors, the one-half thereof belonging to the children of Ann Jenkins, subject to the curtesy rights of her husband Thornton A. Jenkins; -and the other half to Elizabeth Power, widow and sole devisee of William Power deceased; and the cause will be remanded, so that a decree may be passed in accordance with the opinion of this court.

(Decided May 31st, 1859.)

Decree reversed and cause remanded.