Knecht's Appeal

The opinion of the court was delivered, by

Agnew, J.

We agree with the Orphans’ Court in the opinion that the sum of $7000 directed by Christian Knecht, the testator, to be paid by his son Christian Knecht, the appellant, was charged upon the farm devised to the son. He was to take it under and subject to the payment of this sum, and the codicil declares it to be the consideration-money of his land. The intent to charge is plain. The proceeding to recover the legacy was properly under the 59th section of the Act of 24th February 1834. The objection that the executors of the will were not made parties is unfounded in fact. The petition sets forth expressly that letters testamentary were issued to Christian Knecht and Reuben Knecht, one of whom was a plaintiff and the other the defendant. The parties were therefore in court, and the petition was merely informal in its mode of statement, and not substantially defective. The informality was properly permitted to be amended. No objection can be urged against the jurisdiction of the court. And even if the proceedings were not under the 59th section, the Orphans’ Court has jurisdiction generally to enforce the payment of legacies under the 47th section of the Act of 1834. The intent of the testator in this will was to make the sum of $7000 payable out of the land devised to Christian, and hence this sum is, in its nature, plainly demonstrative. The fact that the division of it takes place under the residuary clause does not alter its specific character, or the intent of the testator in regard to it. The place alone, where the distribution is made, will not fi^ the intent, if the purpose of the testator can be gathered elsewhere in the will; but we must be governed by his main intent. The reasons leading to the conclusion that the sum of $7000 charged on the land, is demonstrative, are so fully given in the opinion of the court, and the argument of the counsel of the appellees, that we need not refer to them. This being the character of the fund and the source of its payment, the question whether there is other estate to pass under the residuary clause becomes immaterial. It turns out that the personal estate was insufficient to pay the debts, and the real estate was therefore liable for the deficiency. The sum payable out of the farm being demonstrative, it follows that the owners of the realty must suffer a ratable abatement to the extent of the debts, which were liens, on the real estate. This deficiency was made up by Christian Knecht, who was both devisee of the farm and executor of the will. It amounted to little over $2000, and was paid by him within a year after the testator’s death and settled in his account as executor. The sum charged on his land was not payable, however, until after the death of his mother, which occurred nearly twenty years after the settlement of the account. He therefore claims interest on the balance of his account as executor.

But under the circumstances he is not entitled to interest. When he paid the money he stood in the double capacity of a devisee and executor. As executor it was in his power and it was his duty to have procured an order to sell the land for the payment of the debts. As executor he could not pay the debts out of his own pocket, and wait until after the lien of the debts thus paid had expired. In this respect the executor or administrator is bound to the same diligence as the creditors: Clauser’s Estate, 1 W. & S. 208; McCurdy’s Appeal, 5 W. & S. 397; Loomis’s Appeal, 5 Casey 237. When then as devisee and owner of the land he chose to retain it, and waive the sale he might have made as executor, he elected to take so much of the land as was equivalent to the amount of the debts, and thus assumed the deficiency. The possession and usufruct of .the land thus retained were in law the equivalent of the interest on the debts, while the principal only would be a credit in the payment of the $7000, he himself contributing his ratable proportion on account of the devise to him. So far the decree of the court was right, and this leads us to examine the manner of adjusting the abatement between Christian, as devisee of the land, and his brothers and sisters, as the owners of the legacies charged upon it. The Orphans’ Court adjusted it by the proportion which the sum of $7000 bore to the value of the real estate. This was correct. Abatement in such case is the act of the law, taking into view the whole scope of the will and the actual intent of the testator, and arriving at what, it is believed, would be the intention of the testator, had he known of the deficiency and undertaken to make the abatement himself. The intention of the testator as gathered from his will is, therefore, still the polar star of the interpretation, and of the adaptation of the abatement to the new situation, which then must be reached on principles of justice and equity. At this point, we think, the Orphans’ Court made a slight departure, requiring a modification of the decree. The Orphans’ Court took the value of the land at the time of adjustment, instead of the time of the testator’s death, as the measure of proportional abatement of the devisee of the land. This was an error. When the testator made his will, he formed his plan of the distribution of his estate, as the facts then appeared before his mind. In looking at what it would be just to give Christian in land, and what to the others in money, he had in his view the value of his property as he then knew it, and not a state of things to happen twenty years afterwards, when his land might appreciate or depreciate. The value of his land then, and the sums to be paid out of it, he fixed in his mind then, as the proportions proper for his children. He certainly did not look forward to the existence of adventitious, or it may be fortuitous circumstances, as the means of regulating his bounty. If within a year after Christian took his devise, the house and barn were destroyed by wind or fire, the loss would be his, and not that of those to whom the $7000 were bequeathed. So an adventitious rise in price in the land would certainly be his and not theirs. Had the testator then known that he was in debt $2000, which must be paid out of his land, debts which must be paid at his death, he certainly would not have adjusted the abatement between Christian’s land and their money, on an unknown and prospective value, but he would have done it on the valuation he would then make in his mind. He knew that his will would take effect at his death, and that the rights of creditors would then attach, and would not wait on distribution under his will. Had an executor sold the land, or the devisee then paid the debt, it is evident the loss would have been according to the then value of his land. The postponement of the time of settlement, by the sufferance of a devisee who had paid the debt, clearly would not add to the right of those who were to receive their share in money, at sums then fixed in amount, and in just proportion, as the testator willed it, to the value of his property. It seems to us, therefore, that the only fair adjustment of the abatement should be upon the basis of the value of the estate as it was at the death of the testator, and when the debts were paid by the devisee. The decree of the Orphans’ Court is therefore affirmed, subject to a modification as to the value of the land devised to the appellant, which is to be ascertained as of the time of the testator’s death; and the record is ordered to be remitted to the Orphans’ Court with instructions to carry this modification into effect. The costs of the appeal to be paid out of the estate.