McCullough v. Wiggins , 22 Pa. 288 ( 1853 )

The opinion of the Court was delivered by

Black, C. J.

Testator died devising land to his son, and directing him to pay one hundred dollars to a daughter. The land did not belong to the testator, but to his wife, who after his death conveyed to the devisee. This suit is by the daughter against the devisee to recover her legacy of a hundred dollars. Is she entitled to it ?

The legacy was not made or intended to be made a charge upon the land. The will, after giving the land, simply says, “I allow S. to pay M. one hundred dollars.” If the devisee had taken the land under the will, he would have made himself personally liable for the legacy. But how can we say that the same consequence would follow from his getting title in another way, when he found that he got none by the .devise ?

The fact that the devisee was executor of the will makes no difference. As executor he was bound to pay the legacies only so far as he had assets applicable to that purpose.

The land in question had been devised to the testator and his wife, and of course the entire estate survived to the wife. He had no more right to dispose of it by his will than if it had been her separate property or the property of a stranger, even. though it came to them encumbered with legacies which he paid.

The inventory filed by the executor, showing that certain articles of personal property bequeathed to the wife had been set aside for her, was no evidence of such acceptance under the will as would estop her from claiming the lands; and her subsequent conveyance of the land devised, was as far as anything possibly could be from a confirmation. Judgment affirmed.