Opinion
Fall Sessions, 1860.
C. S. Layton, for the plaintiffs.
Robinson, for the defendant.
THIS was an action of assumpsit for a legacy. Zachariah Reynolds, deceased, by his will proved May 23, 1834, bequeathed as follows: "My will and desire is that my son, Covington Reynolds, shall pay to my two daughters, Mary Robbins and Elizabeth Walls, (now the wife of David Taylor, one of the plaintiffs) the sum of fifty dollars each, at the death of my wife, Priscilla Reynolds, in consideration of the two-thirds of my lands in Nanticoke Hundred, which I have given him after the death of his mother." Priscilla Reynolds, the widow of the testator, died in September, 1853, and this action was commenced in April 1859. The defendant pleaded the usual pleas, and on the trial proved that Covingon Reynolds, deceased, the son of the testator and devisee of the lands mentioned, only a few weeks before his death in January 1858, acknowledged that the legacy had never been paid, and expressed his intention to pay it in a short time.
The counsel for the plaintiff moved a non-suit on the ground that an action at law would not lie for a legacy of this kind, and the Court granted the motion.