Opinion
07-14-1890
CRAY v. JOHNSON et al.
Gaston & Bergen, for complainant. W. Y. Johnson, for defendants.
Gaston & Bergen, for complainant. W. Y. Johnson, for defendants.
This bill is filed for the recovery of the legacy given to the complainant in and by the will of Peter W. Young, deceased. The testator, after the death of his widow, gave certain lands to the defendant William Y. Johnson, subject to the payment of $300 on the 1st day of April each and every year to the complainant, and declared that the legacy so given should be a lien upon the lands so devised. The widow of the testator died a few days before the 1st day of April, 1888. In a very few days after the said 1st of April first arriving after the death of the testator's widow, Mr. Johnson paid the legacy which was then claimed to be due to the complainant. When the next 1st of April arrived, he refused to pay, insisting that the former payment should be regarded as a satisfaction of the legacy which was claimed to be due upon the return of the second 1st of April after the death of the testator, and alleging that when the first payment was made there was really nothing due to the legatee. He claims that he made the first payment under protest, and because it was uncertain whether the terms of the will were such as to make it obligatory upon him to pay, which uncertainty was conceded by the complainant, and also, as I understand his answer, because he had compassion upon the complainant, as she was suffering from some malignant disorder which stimulated his charity, and which moved him to make the payment, and that, therefore, the payment is not to be regarded by the court as an admission upon his part of a liability. The reasoning by which the devisee of the land, upon whom the burden is cast of making these payments to the legatee, reaches the conclusion which he does, that there was not any legacy due upon the approach of the 1st of April next immediately after the death of the widow, is that the testator intended that the payments of the legacy should be annual payments, and that as such it was his intention that the devisee of the land should not be burdened with the payment of the legacy until after the annual crops had been planted and gathered by him so as to have the wherewithal from the land itself to pay the legacy. This branch of the case has been very satisfactorily disposed of by Vice-Chancellor VAN FLEET in the case of Cray v. Herder, 19 Atl. Rep. 385, where the same question under the same clause of the will was under consideration. Clearly it might be added that, if the contention of the devisee be the correct one, then, upon principle, the 1st of April would not only be deferred beyond the 1st of April next immediately succeeding the death of the widow, but beyond the second 1st of April next succeeding; for, if the annual crops are to furnish the means with which to discharge the burden, the winter crops, including wheat and rye, evidently would not mature until after such second 1st of April. It seems to ma quite clear that the defendant has failed in this branch of his defense.
Another defense set up in the answer is that a former suit involving this question is still pending. It appears that a bill has been filed by those interested asking for a proper construction of the will, and that the interests of the complainant are set forth in that bill, and that a subpoena was issued, and an answer put in. From the testimony I am satisfied that the principle which governs in such cases is not applicable here. There is no proof, so far as this complainant is concerned, to show that the court acquired jurisdiction, and it is evident that the answer which was filed in her name was not by her consent or procurement in any way; nor does it appear that she has at any time committed herself by any word or act, so that she would be properly estopped from filing a bill in her own behalf. Doubtless the solicitor who filed such answer fairly believed from the statements made to him by another that it was proper for him to file the answer; but, as the case stands before me, he had, in fact, no authority to act in behalf of the present complainant in that suit.
Counsel also urges that the complainant has a complete remedy at law, and therefore insists that this bill should be dismissed. It may be that after the devisee accepted the devise he was personally liable for this legacy, and that the legatee could proceed to judgment at law therefor. However free this may be from controversy, I think it is equally incontrovertible that such a charge may be enforced inequity.And perhaps. when the circumstances of this case are considered, it was the only prudent course for the complainant to file her bill in equity in order to enforce her acknowledged rights. The devisee, after coming into possession of these lands, executed mortgages in all amounting to $8,000 upon the lands so devised. Had the complainant proceeded at law, and been obliged to resort to these lands for satisfaction of her judgment, every step would have been subject to said mortgages. By proceeding in equity, since the will declares this legacy to be a lieu upon the lands, that lien remains prior to the said mortgages, and upon a sale of the lands the decree which she will obtain will first be satisfied.
I speak of another point, because counsel debated it somewhat fully before me, although there is not sufficient allegation in the pleadings to justify it; that is, the extent of the lands liable to the charge in question. If there be uncertainty on this point of the will, it cannot be decided in this case. The only persons brought before the court are the devisee and his mortgagees. Neither the heirs at law of the testator, nor any other person who may be interested, are before the court. It will be seen, therefore, that whatever the decision might be if the question should be considered would not be binding upon any one. I will advise a decree that the defendant is indebted to the complainant in the sum of $300, with interest from the 1st day of April, 1889, and that such sum, together with such interest, is a lien upon the lands mentioned and described in the complainant's bill, and devised to the defendant prior to said mortgages, with costs to be taxed.