Chase v. Warner

(after stating the facts). 1. We need not determine the question of the personal liability of the defendant. The bill does not pray that he be held personally liable for a deficiency, nor for the entire amount of the legacy, even if it be not a charge upon the land. It only prays that upon default of payment by defendant the land be sold. Possibly, the general prayer for relief might be sufficient to include such relief. It is true that there is no privity between complainant and defendant growing out of the alleged contract between him and Chapman, and complainant would have no remedy at law. Whether a court of equity would interfere under such circumstances, we need not determine.

*6992. The principal question is whether the legacies are by the will made a charge upon the real as well as the personal property. The rule governing the construction of wills, upon this point, is stated in Hibler v. Hibler, 104 Mich. 274, and several authorities cited. It is significant that the devisor included both her real and personal property in one clause, and made both subject to “the provisions below stated.” This differs from the fact in Hibler v. Hibler, where the legacy was to be first paid out of the personal property. The language of this will seems to us free from doubt. She intended that these bequests should first be paid out of her entire estate, and she mentioned the fund out of which they were to be paid by her executor as consisting of both her real estate and personal property, mentioning her real estate first. We think the allegations of the bill make a case for an answer, the joining of issue,' and proofs.

3. We do not think that the third point in the demurrer should be sustained. If defendant has made no arrangement with the other legatees named, by which he has assumed and agreed to pay them, or has not paid them, they would be necessary parties, because, should the land prove insufficient, the legacies should be paid pro rata out of the amount realized. While the allegation is not as specific as it might be, yet the statement that he has assumed and agreed to pay them leaves the case open to proof of a novation, “which might relieve the land from any lien on account of such legacies.

The decree is reversed, with costs of both courts, and the case remanded, with permission to answer in accordance with the rules and practice of the court