ALEXANDER P. HODGES ET AL.

V.

GEORGE W. PHELPS ET AL,

GRAND ISLE COUNTY, 1893.

Before: Ross, CH. J., TAFt, and Rowell, JJ.

Devise of land subject to payment of legacy.

I.

2.

Surrender of land. Accepting conveyance of land. Interest on

legacy. Decree.

Certain land was devised to W., charged with the payment of three annuities, and upon the decease of the annuitants, with specific legacies to their heirs. The will provided that W. might discharge himself from the payment of the annuities and legacies by surrendering the land to the annuitants or their heirs, and he did quit-claim the premises to the annuitants. Held, that the land was thereby discharged from the annuities but not from the legacies.

At the death of the annuitants, or either of them, a specified sum was devised "to their and to the heirs of each." Held, that the legacies should be divided among the heirs of each annuitant per capita and not per stirpes.

3. In 1884 two of the annuitants deceased and P., who had become the owner of the premises through conveyance from the annuitants, quit-claimed the premises to the heirs of the deceased annuitants, who are the defendants in this suit and were the owners of the land at the time the suit was brought. The will provided that the legacies should be paid by the owner or occupant of the land. The deed recited the recent death of the annuitants, and that the legacies payable at the death of each were unpaid; was conditioned that the land should "still stand chargeable with the

4.

5.

payment of said legacies as provided by said will," and declared that by agreement of the parties the grantor was to be released from all liability in respect thereto. Held, that by accepting this deed and occupying the premises under it, the defendants became personally liable for the payment of the legacy due the heirs of the third annuitant upon her decease in 1888, irrespective of the value of the land. Interest begins to run from the decease of the annuitant. Inasmuch as the bill is not drawn with a view to a decree in personam, and the value of the premises is more than the amount to which the orators are entitled, it is directed that a decree of foreclosure be entered in the common form.

Bill to enforce the payment of a legacy against certain lands. Heard at the August term, 1891, upon bill and answer. TYLER, chancellor, decreed for the orators. Both parties appeal. The opinion states the case.

T. E. Wales for the orators.

By accepting the deed from Mrs. Platt the defendants became personally liable for the payment of the legacy in suit. Hill v. Sharp, Thom. Cases 188; Glan v. Fisher, 6 John. Ch. 33, (10 Am. Dec. 310); Larkin v. Mann, 53 Barb. 267; Cole v. Cole, 53 Barb. 607 Re Phelps' Will, 56 Vt. 661; Pickering v. Pickering, 15 N. H. 281.

A. G. Whittemore for the defendants.

The heirs of each annuitant would take per stirpes. Sch. Wills, s. 538; 539; Balcom v. Haynes, 14 Allen 204: Osborn's Appeal, 104 Penn. St. 637; Cook v. Catlin, 25 Conn. 387; Shepard Heirs v. Shepard's Estate, 60 Vt. 109; Gaines v. Strong's Estate, 40 Vt. 354: Bronson v. Phelps' Estate, 58 Vt. 612.

The opinion of the court was delivered by

ROWELL, J. Timothy P. Phelps, who died on August 25, 1864, devised to George Whittemore for life that part of his

home farm lying in Colchester, "subject to the charges and the payment of the sums " mentioned in the will, with remainder over of an undivided half thereof to the children of the said. George born in lawful wedlock, if any such there were, or to their heirs, the title to vest on the death of the said George; and he made his brother, Asaph Phelps, and his sister, Marcia Hall, and his sister, Laura Roberts, during her life, residuary devisees and legatees, with remainder over of Laura's share to Asaph and Marcia. He specifically charged upon the land a life annuity of $100 to his brother Asaph, and the like to each of his said sisters, to be paid to them by the said Whittemore or by "the legal owner or occupant" of the land. At the death of the annuitants or any of them, he gave to their and to the heirs of each the sum of $1,600 each," making $4,800 in all, to be paid to them in the same manner as the annuities were to be paid, and in like manner to constitute a charge upon the land. The will provided that it should be at the option of Whittemore to pay said annuities and legacies or to surrender the land to the annuitants or their heirs, and if he elected to surrender, then the land was devised to the annuitants and their heirs equally, and Whittemore was released from the payment of the annuities and the legacies.

On Nov. 11, 1867, Whittemore and one Barnum, who had become a joint owner with Whittemore, quit-claimed the premises to the annuitants, their heirs and assigns, in consideration that they "do release and discharge the said Whittemore from all personal liability to perform or pay any and all the conditions, charges and annuities" imposed and charged thereon by said will. On the 22d of said November, the annuitants quit-claimed the premises to said Barnum, and their deed purported to discharge the land and Whittemore and Barnum from the further payment of all "annuities" charged thereon by said will, due or to become due to them or any of them, or to their or any of their

heirs; but it did not purport to discharge the land from the legacies. Barnum mortgaged to Platt, who foreclosed and obtained title, and under his will the title to all but a small piece that he sold off came to and vested in his widow, who, on March 27, 1884, quit-claimed to the defendants and Wallace P. Hall, who subsequently conveyed his interest to Jerome P. Hall, one of the defendants, and the defendants are now the owners of the land. Mrs. Platt's deed recites the giving of said annuities and legacies, that they were made a charge upon the land to be paid by the legal owner and occupant thereof, which she had come to be, that Asaph and Marcia had recently died, and that the legacies "payable at the death of each" were due and unpaid, and it is conditioned that the land "shall still stand chargeable with the payment of said legacies as provided in said will," and declares that, by agreement of the parties, Mrs. Platt, her heirs, executors and administrators, are discharged and forever released from the payment thereof.

Laura Roberts died on Dec. 26, 1888, leaving no heirs. but nephews and nieces, of whom there are fourteen, namely, seven of the orators, the six defendants, and the said Wallace P. Hall. Said orators are the children and only heirs of Clarissa Hodges, deceased, a sister of the said Laura's, and the defendants, except Jerome P. Hall, are the children and only heirs of Asaph Phelps, and Jerome P. Hall and Wallace P. Hall are the children and only heirs of Marcia Hall, and Wallace has conveyed to Jerome all his interest in the legacy given to his mother.

The orators seek to recover one half of the legacy given to the heirs of Mrs. Roberts, with the interest thereon, and pray that the defendants be decreed to pay the same to them, and in default thereof, that a trustee be appointed to sell the land to satisfy the decree, and for general relief.

The defendants answered, alleging among other things, that the present value of the land does not exceed $2,000,

and claiming that it has been and is released and discharged from the payment of said legacies; but if not, that in the circumstances, neither they nor the land are chargeable with only one third of the present value of one legacy, which they allege to be one ninth of the value of the land, to be ascertained.

The case was heard on bill and answer, and a decree was entered that the orators were entitled to $800, it being one half of the legacy given to the heirs of Mrs. Roberts; that the legacies are a charge upon the land; and that unless the defendants paid said sum to the orators, with the interest thereon, a trustee should be appointed to sell enough of the land to pay the same and the costs, provided the land is worth as much as the amount of the three legacies, but if not, then to sell a proportionate part thereof, the value of that sold to bear the same ratio to the value of the whole that $800, with interest and costs, bear to the amount of all the legacies; and a personal decree against the defendants was denied. From this decree both parties appealed.

We think it was not the intention of the testator that the surrender of his estate to the annuitants by the life tenant should operate to discharge the land from the burden of the legacies, but only that it should release the tenant, for whom he seems to have had especial regard, as he was otherwise a large beneficiary under the will, from personal liability in the matter, that is, from the payment of the annuities and the legacies, as the will says. And this seems to have been the understanding, both of the tenant and of the annuitants, for the tenant's deed was given on that express consideration, and imports no other release, although it probably effectuated a discharge of the land from the burden of the annuities into whosever hands it might thereafter pass, as the annuitants thereby got the same thing in another form, namely, the life use. But they took the land

charged with the legacies, just as the life tenant had it, and