In re Estate of Moran , 13 Pa. Super. 251 ( 1900 )

Opinion by

William W. Pouter, J.,

Little can profitably be added to what has been said in the opinion of the court below. The provision for Patrick Moran is not in the form of a substantive gift, but only of a direction to pay twelve years after the decedent’s death. He died six years after the decedent. It is claimed that the legacy is contingent on, the survival of the legatee until the time fixed for payment and that by his death the provision fell. In Reed’s Appeal, 118 Pa. 215, it is said: “ The gift of a legacy under the form of a direction to pay at a future time, or upon a future event, is not less favorable to vesting than a simple and direct bequest of a legacy at a like future time or upon a like event. The question is one of substance and not of form, and in all cases it is whether the testator intended it as a condition precedent that the legatees should survive the time appointed by him for the payment of their legacies ; and the answer to this question must be sought for out of the whole will, and not in the particular expressions in which the gift is made.” See also Allen’s Estate, 192 Pa. 170; McClure’s Appeal, 72 Pa. 414. In the present case a scrutiny of the whole will results in a conviction that the purpose of postponing the payment directed to be made to Patrick Moran, was for the ease and advantage of the devisee of the land. There is nothing in the language used, or in the description, condition or circumstances of the legatee, indicating a purpose in the mind of the testator to make the payment of the legacy contingent upon the survival of the legatee until the time fixed for the payment. The periodicity of the payments directed to be made by the devisee to the legatees strengthens the view that the time for the payment of the legacy is fixed for the benefit of the devisee and the relief of the estate. We are of opinion that the interest of Patrick Moran was vested. See Engles’s Estate, 167 Pa. 463, and Donner’s Appeal, 2 W. & S. 372.

It is furthermore clear that the legacy was a charge upon the land. To make a legacy a charge it is necessary that it should be so declared by express words, or be inferable from-the whole will that such was the intention of the testator: Shark’s Estate, 7 Pa. Superior Ct. 372; Brandt’s Appeal, 8 Watts, 198. If it appears from the language of the will that the testator intended to couple the payment of the legacy by the devisee with the devise of the land, so that the payment is to be made because, or as a condition on which, the devise has- been made, then the real estate devised is, in equity, chargeable with the payment of the legacy. In such a case the payment of the legacy is a condition on which an unincumbered title vests in the devisee. This statement of the law has been approved in Wise’s Estate, 188 Pa. 258. See also Holliday v. Summerville, 3 P. & W. 533; Springer’s Appeal, 111 Pa. 228 ; Pryer v. Mark, 129 Pa. 529. The provision of the will in this ease is, in condensed form : I devise nnto my son, William Moran, and his heirs my farm “ on condition .... he pay unto my son, Patrick Moran, the sum of one thousand dollars, without interest, and the same be paid. twelve years after my decease.” The acceptance by the devisee of the farm so devised, was subject to the conditions imposed, and the land was made the fund for the payment of the legacy: Holliday v. Summerville, supra; Downer v. Downer, 9 Watts, 60. It is argued that the petitioner here has no standing because he is not the legatee, but only the administrator of the legatee’s estate. The act of February 24, 1834, provides that it shall be lawful for the legatee to pursue its provisions to enforce the payment of a legacy charged on land. The legacy having vested, the right, after the death of the legatee, to enforce its payment inures to his legal representatives. This view of the intent of the act is not in conflict with Hartzell’s Estate, 178 Pa. 286, and Luckenbach’s Estate, 170 Pa. 586, where it was held that the executor of the will creating the charge had no standing to proceed in behalf of the legatees.

The decree is affirmed.