delivered the opinion of this court.
Samuel Hanson, senior, by his will, dated 29th September 1817, after devising to his wife and two daughters, for life, the land in the proceedings mentioned, gave the same, in fee, to his son Samuel; and in the next clause, gives to his son, John B. Hanson, twelve hundred and fifty dollars, to be paid him “by my son Samuel, in five annual payments, the first payment to be made at the end of the first year, after he gets possession of the plantation.” The devisees, for life, are dead, and no part of the said legacy being paid, this bill is filed by some of the heirs of Samuel, (the devisee in fee,) and heirs of John B. Hanson, to whom the twelve hundred and fifty dollars are given, asking for a sale of the land, “and the proceeds arising therefrom to be distributed among the parties severally entitled thereto.” The defendants, in their answer, say, that before a sale can bo made, the estate should be divided among the heirs of Samuel, or if incapable of division, the heir entitled *72should have a right to elect; and it is insisted, that no one could make payment of the legacy until an election.
If this was the only objection to the relief which was prayed, it would not hinder an affirmance of the decree; but there are objections to any relief being afforded in this case, and the mention of which, will enable the persons entitled to claim the legacy, to proceed correctly, if in order to recover the money given to John B. Hanson, it should be necessary to file another bill of complaint. The money, when due, is payable to the executors or administrators of the legatee, and the bill must be filed by them.
Another objection to the decree, which will be noticed, is, that it docs not appear, that the first payment which is to be made, was due at the time that this bill of complaint was filed. The first payment was to be made at the end of the first year, after he, (the devisee in fee,) gets possession of said plantation. The bill, filed on the 14th March 1843, alleges, that one of the devisees for life died, “sometime during the year 1842.” The defendants, in their answer, insist, that the money is not due till “late next fall; the tenant for life, Miss Charity Hanson, not having departed this life till the fall of 1842,” and there is no testimony in the case.
For these reasons, if there be none others, the decree must be reversed, with costs, and the bill dismissed.
decree reversed and bill dismissed.