The opinion of the Court was delivered by
Huston, J.In the case of the estate of Gen. William Alexander, the clerk of the Orphans’ Court made out some two hundred and fifty recognizances, for the several sums due to each of a great number of heirs presently, as well as for the sums which would be due thereafter. On an appeal, the court did not allow his bill of fees. The usual form of a recognizance to pay to the heirs the sums which should be due to each was said to be of long standing, and fully sufficient for the security of all and every one. In such case each could sue, though not named. Our Act of Assembly would seem to settle this dispute. See 41st section of the act of 29th March, 1832: — “ Should the widow of the decedent be living at the time of the partition, she shall not be entitled to the sum at which her purpart or share of the estate shall be valued, but the same, together with interest thereon, shall be and remain charged upon the premises, if the whole be taken by one child or other descendant of the deceased, or upon the respective shares, if divided as hereinbefore mentioned; and the legal interest thereof shall be annually and regularly paid by the persons to whom such real estate shall be adjudged, their heirs or assigns holding the same, according to their respective portions, to the said widow during her natural life, in lieu and full satisfaction of her dower at common law, and the same may be recovered by the widow, by distress or otherwise, as rents in this commonwealth are recoverable. On the death of the widow the said principal sum shall be paid by the children or other descendants, to whom the same shall have been adjudged, their heirs or assigns holding the same, to the persons thereto legally entitled.”
This last provision of the act puts entirely aside one of the objections to the plaintiff’s recovery. The Legislature first secured to the widow, by cumulative remedies, while she lived; and, aware that the person to whom the land had been awarded may *161die or remove to a distance before the death of the widow, they provided expressly that the principal sum charged should be paid to those entitled by the person holding the land, whether he was heir or vendee of the person to whom the land had been allotted in the case by the Orphans’ Court: and this evidently intended to save the heirs respectively their interest directly out of the land, without following him to whom it had been awarded, and who might be insolvent if found. If the person to whom it was awarded had been sued, no doubt the suit must have been on his recognizance. The law made the shares of the heirs a lien until their money became due, and then made the person owning the land liable to a suit and judgment de terris. We have decided that a recovery may be had by assumpsit stating the facts. On the facts the law would imply a promise to pay; but the act removes all doubt, and makes him who holds the land as terre-tenant liable.
Another objection was made, which, if the facts of this case had been like those in the cases cited, might have availed, viz., that when Abraham Shelly took the land at the valuation, his right to his wife’s share of the valuation being due to him, was merged in the fee vested in him, as he could not be both debtor and creditor. I am not sure this was true as to the share of his wife, though it would generally be true if the share had descended to himself. I say generally true; but when Abraham Shelly sold, he and his vendee might agree otherwise: and they did agree otherwise. The articles of agreement are express, that Stauffer shall pay the sums due to the heirs of D. Yeakle, including the said Abraham Shelly’s hereditary portion; but, to remove all doubt, he gave to Abraham Shelly, one of the heirs of D. Yeakle, a bond for £132 11s. one year after the land had been allotted to Shelly, and also £66 5s. 6d. on the death of the widow. Now, unless the contract is forbidden by a positive enactment, or by the general law, as being contrary to morality or general welfare, every contract is binding; and this was binding. When Stauffer sold to Henry Shelly, the first sum of £132 11s. had been paid, and the land was conveyed to H. Shelly, “ subject to the payment of $33.80 to Ann Yeakle, widow of David Yeakle (the elder), deceased, or her order, on the first of March in every year daring her life, as her lawful dower arising out of the hereby granted premises,” and also “ subject to the payment of $563.33, at the decease of the said Ann, to the heirs of the said David Yeakle, or their legal representatives, as the principal sum or fund of the aforesaid annual dower.”
This suit is brought for the proportion of that sum which, by the case stated, belonged to Abraham Shelly or his wife. The wife is dead and the widow is dead. After the case was stated and argued, Abraham Shelly died, and his administrator, Joel Shelly, was substituted. The decision is right, both that the sum is recoverable in this suit, and that Joel could be substituted, *162Whether he will hold in trust for himself and his brothers and sisters as heirs of his mother, or as heirs of his father, was mentioned, but not discussed, and, if there is any doubt, may be settled hereafter; but, if his father did not die insolvent, may be perfectly immaterial.
Judgment affirmed.