Okeson's Appeal

• Decision Date: 27 May 1868
• Parties: Okeson's Appeal.
• Court: Pennsylvania Supreme Court

59 Pa. 99

Okeson's Appeal.

Supreme Court of Pennsylvania.

May 19, 1868.

May 27, 1868.

May 19th 1868.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. Absent, STRONG and READ, JJ.

Appeal from the decree of the Orphans' Court of Juniata county: Of May Term 1868, No. 96 E. S. Doty, for appellant.—The legacy was a charge on the land devised to Samuel Okeson's estate: Wharton's Dig., Wills, 471; English v. Harvey, 2 Rawle 305; Hood on Ex'rs. 346; Comm'th. v. Shelby, 13 S. & R. 354; Nichols v. Postlewaite, 2 Dall. 131. Samuel was liable on his promise to pay: Clark v. Herring, 5 Binn. 33; Esling v. Zantzinger, 1 Harris 53; Mercer v. Lancaster, 5 Barr 162.

There was no oral argument or paper-book for the defendant in error.

The opinion of the court was delivered, May 27th 1868, by SHARSWOOD, J.

There can be no question that under the authorities in this state the legacy to Margaret Okeson in the will of her father Nicholas Okeson, was not a charge upon the land devised to his son Samuel Okeson, nor upon the devisee in respect of the land. It is certainly true that no particular language is necessary to create such a charge. The intention of the testator is to be carried out wherever it is discoverable from anything contained in the instrument. But there must be something from which it can be inferred. Here there is a legacy of money to one, followed by a devise of a tract of land to another. There is no connection between the two — no reason for surmising that the one should receive the entirety devised or bequeathed more than the other. The design expressed to make Margaret by the legacy equal to what he had given the rest is not indicative of any intention that in case of a deficiency of assets she should be paid in full out of the devise to Samuel. Had the gift to Samuel been a legacy of money, it would have abated pro rata. That would have been according to the expressed intention that all should be equal. But that is something very different from making the legacy a charge on the land or the devisee personally liable in respect of the land, and thus securing it a preference in full. It will be sufficient to refer to Montgomery v. McElroy, 3 W. & S. 370; Wright's Appeal, 2 Jones 256; Brookhart v. Small, 7 W. & S. 229. There is a dictum by Judge Duncan in The Commonwealth v. Shelby, 13 S. & R. 354, from which it is argued that where there is a general bequest of a legacy, and there is a deficiency of personal assets to pay debts and legacies, the balance of the legacy is payable out of the realty. But his language is to be referred to the case before him, which arose upon a will in which the testator had blended his real and personal estate in a residuary clause. He had just cited the cases which recognise it as the law of Pennsylvania that such a blending makes the legacies a charge, and he refers immediately after to Nichols v. Postlethwaite, 2 Dall. 131, which was one of the same class. I have no doubt that the manuscript case of Oakford's Estate, 2 Whart. Dig., tit. Wills and Testaments 471, was also of that character, for though the will is not given, yet it appears there were residuary devisees. The same...