The opinion of the court was delivered by
Rogers, J.The will was in support of the declaration on which the defendant had taken issue, and ought, for that reason, to have been submitted to the jury. Houston v. Moor, 3 Serg. & Rawle, 169, and in a case at Philadelphia, not yet reported.
William Holliday made his last will and testament, and among other things, devised as follows: “It is my will that my son William shall have the tract of land he now lives on, provided he pays to my other three children, viz: John, Ruth and Mary, three hundred pounds, to be paid in the following manner, one hundred pounds to be paid one year after my decease, and two hundred pounds to be paid one year after, deducting the sum of twenty four pound five shillings, which sum I owe to him, out of *534said three hundred pounds. The suit is brought by James Summerville who intermarried with Rzoth, and his wife, against the devisee. The defendant objects that the executors should be joined in the suit; and ever since the case of Brown v. Furer, this point must be considered as settled, although before that decision there was doubt as to the proper parties to the suit. I look upon this as such a charge, as to make the land the fund primarily liable for the payment of the legacy; and as'also exempting the personal estate from the payment; it is not, as has been contended,in the nature of. a conditional estate. It is, then, impossible to distinguish this, from the case of Brown v. Furer, 4 Serg. & Rawle, 217 and Gause v. Wiley, 4. Serg. & Rawle, 509. In order to do complete justice, as is said in one of the cases, it would seem right that the terre tenant should be called on; because they have an immediate interest in the land. There is great reason, also, for including the executor in the action, because by our law, all the lands are liable to the payment of the testator’s debts, and may be taken in execution on ajudgment against the executor. It is proper, therefore, to afford the executor an opportunity of. shewing, that the land is not more than sufficient to discharge the debts; iff which case, the legacy must fall. The practice has been, in con-' formity to the course recommended by the Chief Justice, and it would, no doubt, have been so here; had the suit been brought since that decision. The devisee may well object to pay the legacy, until assured of his title, which can only be, after payment of the debts of the testator. Of the situation of the estate, the executor is alone informed. Besides, if it is-necessafy to sell the land for the payment of the legacy, it goes into the hands of the purchaser, discharged from the debts of the testator. This would be no inconsiderable advantage, in case of a judicial sale. In every view we can take of the case, we see no reason for relaxing the rule, in Brown v. Furer, or making any change in the practice, which has obtained since that decision. It is unnecessary to say, whether a case may not arise, where the devisee would ,be personally liable, and notin respect of the fund; but as this is not a case of the kind, we are of the opinion, the judgment should be reversed.
Judgment reversed.