Dunlop ex rel. Stewart v. Bard , 2 Pen. & W. 307 ( 1830 )

The opinion of the court was delivered by

Gibson, C.. J.

The principal due on the'accepted draft, was from the beginning intended for the plaintiff, leaving the consequences of the gift to the marital rights of her husband, whatever they rhight be at the testator’s death. To carry this intent more certainly into effect, he bequeaths to her very nearly the same sum, as part of what her husband owes him, and in full of all claims on his estate. So far the intention is clear. But he directs this legacy to be paid out of the sales.of the real and personal estate; and as it could not be so paid, and at the same timededucted from the husband’s debt, it is supposed that the memorandum of transfer on the accepted draft, must receive a testamentary sanction to give effect to every part of the will. The intention however, seems to have been to declare the legacy payable at all events; leaving it to the chances of survivorship, whether the debt due by the husband* should be collected and paid to his wife, as part of the testator’s estate, or defalcated as satisfaction; and in this way, no part of the will is without effect.

Then as to the question of satisfaction. The act of Assembly, which gives an action at law, instead of a bill in equity, was not intended to vary the legatee’s rights; so that the question here is, what would a chancellor do? He woiild call in every party however remotely interested, and inquire into the value of the plaintiff’s legacy, and the amount she had actually received. Her husband’s administrators have paid her, in their own wrong, moneys which would otherwise have come to the hands of the testator’s executors, and increased his estate to an amount beyond the value of her legacy. As against the executors this, was a devastavit, but one to which she was party, and equity would protect them as far as it could, by throwing the consequences on the party actually benefited. Accordingly they have been protected to the value of her legacy in the suit on the accepted draft. Does not the same equity regulate the liability of the parties all round? Had she not consented to the devastavit, she would have received her legacy out of the assets in hand; but having anticipated the regular course of payment, by devoting a- fund which was part of the assets, she cannot allege that her husband’s administrators committed a devastavit, in putting it into her possession. ' With the concurrence of the executors, what is there that could prevent them from treating it as a rightful payment of her legacy? A precedent authority would undoubtedly produce this consequence, and a consequent ratification is equally operative. Then any defence here is a ratification, and it of course prevents a recovery. -.

Judgment Affirmed.