Penny's Appeal , 1885 Pa. LEXIS 526 ( 1885 )

Chief Justice Mercur

delivered the opinion of the court,

A testator may make a legacy a charge upon lands which he devises, by express direction or by clear implication. When lie blends his real and personal estate together in a general devise, it is a circumstance to be considered in determining whether the legacies are chargeable on the realty. An obligation may be imposed on a devisee by bis acceptance of the estate, to pay a legacy, without its being charged on the land devised. Thus a devise of land on a contingency, to several, they paying another named, “in lieu thereof” the sum. of ¡¡?800, was held not to constitute a charge on the land upon the happening of the contingency: Montgomery v. McElroy, 3 Watts & S., 370. So a devise to testator’s son Thomas of land. If he chose to accept it, he was to pay $1700 — to different persons. He did accept the devise, yet it was held the legacies were not a charge on the land: Wright’s Appeal, 2 Jones, 256. A devise that H. “is to take the 100 acres of land at my death and pay $700 to each of my within named heirs,” and H. accepted the devise, held that he became personally liable for the legacies, and that they could be collected of him in assumpsit; but that they were not charged on the land: Hamilton v. Porter, 13 P. F. S., 332. A mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge on the land. Thus a testator gave to his two sons all his farm, and directed that they should pay his daughter a certain sum in two years after his death. It was held not to imply that the legacy should be a charge on the land: Cable’s Appeal, 10 Norris, 327.

Referring to the will now before us we find the testator gave to his wife all his real and personal estate during her life, after paying out of the same all his debts and funeral expenses. After her death he gave to the appellee and her heirs all his real and personal estate that should be left at her decease. It was an absolute devise without any reference to the payment of legacies, or an intimation that any would be given by the will of the testator. The legacy in question was given to the appellant in a subsequent part of the will. It is true the appellee was thereafter made the residuary legatee of all the personal estate of the testator. This however creates no implication that any specific legacy was thereby chargeable on the real estate previously devised to the appellee.

Decree affirmed and appeal dismissed at the costs of the appellant.