M'Lanahan v. Wyant

The opinion of the court was delivered by

Rogers, J.

We think it clear that the legacy to the plaintiff's intestate, is a lien on the real estate devised to the sons, it is a principle of English jurisprudence, as well as the unquestioned law of Pennsylvania, that when the real estate is blended by the testator with the personal, the land is charged with the payment of legacies. And the reason assigned is, that the whole will may take effect, and all the legacies be paid, which is justly supposed to be the intention of the testator, when both funds are put into one. 1 Ves. Jr. 444, Kennedy v. Cousmaher. 2 Bin. 531, Hassenclever v. Tucker. 6 Bin. 396, Witman v. Norton. 2 Dall. 131, Nichols v. Postlethwaite, 2 Dall. 131. And this effectis produced by implication, and is not effected by an express charge in favour of other legatees, as has been ruled in Webb v. Webb, 1 Roper on Legacies 433, a case equally strong with the present, where, in answer to a similar objection the court said, “ The testator might use express words of charge in one part of his will, and create a charge by implication in another.” The testator, in the phraseology used, and in charging the lands devised, with the payment of the legacies hereafter mentioned, does not so unequivocally express a contrary intention, as to curtail, or in any way interfere with the implication arising from blending the real and personal fund into one.

When a legacy is charged on land, the sheriff’s vendee takes the land discharged from the lien of a legacy. And this is the principle of the case of Barnet v. Washebaugh, 16 Serg, & Rawle, 410, decided after great deliberation, and since repeatedly recognized. And a purchaser of land, sold by order of the orphans’ court, is in the same situation as a sheriff’s vendee. The 21st section of the act of the 19th April, 1794, enacts, that no lands, tenements and hereditaments, sold by order of the orphans’ court, shall be liable in the hands of the purchaser, for the debts of the intestate. The lands went into the possession of the devisee, charged with the payment of the legacies, and was therefore a debt of the intestate as tenant of the land.

Judicial sales, as appears from the whole current of the recent decisions, divests all liens whether general or specific, and the exceptions to the rule, are grounded on special and peculiar circumstances. The land sells better from passing into the possession of the purchaser unincumbered, and it is of no consequence to a creditor who sells it, provided it be sold fairly, and the proceeds faithfully applied. It is the duty of the court to see that no loss results from improper practices, or the want of adequate security, in a sale under their order, and particularly subject to their controuh The proceeds of the sale must, in the first instance, be applied to the payment of liens, which existed in the life time of the intestate, according to their respective priority. By the sale, the money is substituted for the land, to be distributed by the administrator among the creditors, in the order of the respective claims against the real fund, which by process, of law has been converted into personalty for that purpose. A uniform rule applied to all judicial sales, avoids confusion, and a distinction such as has been adopted by the common pleas, is, we think, contrary to the spirit of all the cases which have been recently decided.

An objection has been taken to the form of the suit; the' action is brought against the executor, with notice to the terre-tenant, who appears and pleads, without objection to the manner he was made a party. After .this, we are unwilling to reverse the cause on that ground alone.

The most approved form, as appears from the precedents, is to bring the suit against the executors and the terre-tenants, who are generally most interested in the cause; for it is on the failure of the personal funds that resort is had to real estate. 2 Saun. 7, (Jefferson v. Morton, et als.) The action may be brought either against the tenants of the land generally, without naming them, or against them by name; but the former is the best form, and in England is-constantly used; for if the plaintiff undertake to name them, he must name them all, and if he does not,- those who are not named may plead in abatement, (Chahoon v. Hollenbaugh,) 16 Serg. & R. 432, (Barresford v. Cole,) 2 Saun. 7, note 4. When suit is brought against the terre-tenants generally, the sheriff returns specially the tenants of the land, who come in, and either plead generally to the action, or specially, that another person, naming him, was and yet is tenant of the land, and that no process has been yet issued against him, &c. and pray judgment of the court, if they ought to be compelled to answer to the said writ, in form aforesaid returned. And the reason of this plea seems to be, because every tenant of the land is entitled to have contribution, that is, all the lands bound in the hands of the several purchasers, or owners thereof, must be equally charged; therefore, unless all the tenants be warned, the others are not obliged to answer. And if the tenant does not take advantage of the omission in the first instance, by a plea of this sort, which he may do, notwithstanding the sheriff’s return, it would seem he loses the benefit of contribution, or of relief by audita querela, in case execution is taken out against his land alone. Cro. Jas. 506, Mitchell v. Croft. Mun. 525, Clark v. Hardmiller. In England, he cannot plead it after a plea in bar. Sir Wm. Jones, 349, (Eyers v. Cowley,) 2 Saun. 7, note 10. On the plea, that all the terre-tenants have not been summoned, for the having speedier justice, the plaintiff may pray a writ to summon the person alleged to be terre-tenant, which is granted to him by the court; and by this means, when summoned by the sheriff, he is made a party in the same manner as if he had been summoned, or returned by-the sheriff as terre-tenant of the land.

Judgment reversed, and a venire de novo awarded.