Fields's Appeal , 36 Pa. 11 ( 1859 )

The opinion of the court was delivered by

Lowrie, C. J.

This will is merely a direction for the division of the testator’s estate among his heirs or children. Some are to have their share in money, others in land; and if the personal estate be not sufficient to pay the money shares, those who get land are to make up the deficiency in equal shares; and we agree that this constitutes a contingent charge upon the land devised, and raises a question of contribution or abatement between legatees and devisees, and shows how it is to be decided. It really makes the land the residuary estate: 11 Harris 223; 12 Id. 20; 5 Casey 428; 7 Id. 47. But the court was in error in charging all the deficiency on three out of the four devisees; they ought to have been charged one-fourth each.

There is error also in bringing the suit in the name of the administrator with the will annexed. It is the duty of executors or their substitutes to discharge legacies so far as funds come to their hands. For deficiencies the legatees must proceed themselves against the devisees or their assigns, whose land is charged with their payment. We know of no law authorizing the executors to attend to this duty: 9 Casey 47.

Decree reversed, and petition dismissed at the costs of the complainants, and cause remitted to the Orphans’ Court that this decree for costs may be there enforced.