M'Kinnon v. Thompson , 3 Johns. Ch. 307 ( 1818 )

The Chancellor.

The devise of the house and Ipl was null and void, inasmuch as the testator had no legal or equitable title to it at the date of the devise. The judgment debt was a lien, but gave no title; even that lien could not have been enforced by execution against the land, except on a deficiency of goods and chattels. Redmond may have had personal property, at the time, sufficient to satisfy the judgment. But that circumstance is not material. A devise is in the nature of a conveyance, or an appointment of a specific estate, and nothing passes, but what the testator owned at the time of the devise. No rule is better settled, than that which declares, that the testator must have a legal or equitable title in the land devised at the making of the will, or nothing will pass. A title subsequently acquired is of no avail. All that courts of equity have done, is to consider an equitable interest founded on articles for a purchase, and which equity would enforce, as real estate which will pass by a devise. But here it is also requisite, that the agreement to purchase should exist prior to the devise. (Langford v. Pitt. 2 P. Wms. 629. Greenhill v. Greenhill, Prec. in Ch. 320. Potter v. Potter, 1 Vesey, 437. Lord Rosslyn, in 2 Vesey, jun. 427. Lord Eldon, in 7 Vesey, 147, 399.) Where a devise thus fails for want of a title at the time, the court cannot relieve the devisee out of other parts of the testator’s estate. A deficiency in a specific legacy, (and every devise is necessarily specific,) is never supplied in that way. The gift totally fails. (Ashton v. Ashton, Cases temp. Talbot, 152. 2 Vesey, 569. S. P.)

Nor can the devise of the house and lot be considered or allowed to operate as a bequest of the judgment debt. There is no colour for such a construction, and no necessary connection between the one subject and the other, If that was the testator’s intention, it may be said quod voluit non dixit. The plain result of the case is, that $.e devise, as to the house and lot, is void, and the defendants' must account to the plaintiff for the one third part of the judgment debt

Decree accordingly.