A.LLEGHENY NA.T. BANK OF PITTSBURGH V. HAYS.
statute, assuming that it was applicable. The notice provided for is nndoubtedly personal notice, and I think very clearly it should be in writing. This would be so upon general principles, and I. think also under the provisions of section 627 of the General Statutes of Nebraska" which provides that "the service of a notice shall be m!,lide as is required by law for the service of a summgns." For these reasons I am constrained to that the petitioners have no lien upon the judgment mentioned in the pleadings, and that their a.pplication to be made parties must be overruled.
See In Te Wilson &; (JreiU, ante, 235.
ALLEGHENY NAT. BANE OJ1 PITTSBURGH 11.
(Circuit Court, W. D. Pennsylvania. July 15, 1882.)
1. WILIr-LEGAOIES-L'HARGE ON REALTY.
Where the share in real estate devised to defendant was expressly subjected by the will to the payment of capital in a firm, the administrator cum testaanneaw is entitled to the fund arising from the sale of such share.
Where a testator, without creating an express trust to pay legacies, makes a general residuary disposit.ion of his whole estate, blending the realty and personalty in one fund, the real estate is constructively charged with the legacies. 3.
SAME-RIGHTS 01' LEGATEES.
Where the real estate of decedent, charged with payment of the legacies, had been partitioned among the devisees, the legatees not being parties to the partition, and never acceding to any apportionment of the legacies, they are not 'eStopped from asserting their paramount lien against a fund arising from a judicial sale of a portion of the realty.
Bur exceptions to auditor's report distributing the proceeds of execution. Geo. Bhiras, Jr., for exceptants. John Dalzell and B. A. McClung, for report. ACHESON, D. J. The fund for distribution arises from the sale of real estate sold by the marshal as the property of William B. Hays, Jr., under a lev.fa. upon a. judgment Bur mortgage given by the defendant to the plaintiff. The property is part of the residuary estate devised by the will of William B. Hays, Sr., deceased, to his five children, of whom the defendant is one. Curtis, another son and conveyed his share to the defendant, and the pal,ties subse-
quently caused partition to be made among themselves. The property sold consists of the two shares assigned to the defendant--one in his own right as devisee, and the other in his right as alienee of Curtis. It is claimed, on the one hand, that the fund should be applied to the plaintiff's mortgage, and to a purchase-money mortgage which the defendant gave Curtis, and which, by assignment, came to one McIntyre; and on the other hand the fund is claimed by the administrator d. b. e. cwm testamento annexo of William B. Hays, Sr., and legatees under the will. The auditor, who sustained the latter claims, seems to have given the case a very careful consideration. I approve his findings of fact, and am of opinion that his distribution proceeds on sound legal principles. 1. In treating the amount of the testator's capital in the firm of William B. Hays & Co. as a lien upon the share of the real estate devised to the defendant, and as discharged by the marshal's sale, the auditor was clearly right. Hanna's Appeal, 81 Po.. St. 58. The share devised to the defendant was expressly subjected by the will to the payment of that capital, and the auditor properly sustained the claim of the administrator cum testamento annexo to the fund realized by the sale of that share. 2. The legacies under the will of William B. Hays, Sr., undoubtedly come within the well-settled rule that where a testator, without creating an express trust to pay legacies, makes a general residuary disposition of his whole estate, blending the realty and personalty 'ogether in one fund, the real estate is constructively charged with the legacies. Hill, Trustees, 860; Lewis v. Darling, 16 How. 1. This principle was adopted as a rule of property in Pennsylvania at a very early day, (Nichols v. Postlethwaite, 2 Dall. 181,) and has constantly prevailed, as is shown by the cases cited in the auditor's report. The fact that the testator expressly charged the amount of his capital in the firm of William B. Hays & Co. upon the share of the realty devised to the defendant, does not interfere with the implication arising from blending the real and personal estates in the residuary clause, or indicate any intention not to charge the legacies upon the real estate. McLanahan v. Wyant, 1 Pen. & W. 112. 8. But the auditor having found that the personal estate which came into the hands of the executor was sufficient to pay all the debts and expenses of administration and the legacies, it is insisted that he erred in holding that the lien of the legacies upon the real estate nevertheless continued. To sustain the contrary doctrine the except-
ALLEGHENY NAT. BANK OF PITTSBURGH V. HAYS.
ants rely upon Hanna's Appeal, supra, and Kohler's Appeal, 3 Grant, 143. In those cases it is indeed said that "when assets are received by the executor sufficient to cover the expenses of administration, satisfy debts, and pay legacies, the real estate is discharged from fur. ther liability," and "if the assets are wasted or misapplied, loss falls on the legatees;" that "the real estate charged is liable on a or insolvdeficiency of assets, but not for the misapplication, ency of the executor." There, however, the court undoubtedly spoke in respect to a case where the personal estate is the primarY fund to pay legacies, and the charge upon the real estate is merely subsidiary. But we have no such distinction here. The personal estate is not the primary fund under this will. The testator, by blending the personalty and realty created a single fund charged with the payment of the legacies. , Hence, it was held in Lewis v. Darling, supra, that where a will, by its residuary blended the disposition of the realty and personalty, shows an intention to charge the real estate with the payment of a legacy,it is not necessary to aver a deficiency of personal assets in a bill to enforce a lien against the real estate. The Bank v. Donaldson, 7 Watts & S. 410, distinctly decides that where the real and personal estates are thus blended together, though the testator may have left ample personalty to pay debts and legacies, yet, if not applied to the legacies, they remain a charge upon the real estate, and are entitled to payment out of the proceeds when sold on an execution against the residuary devisee. And to the like effect is Gallagher's Appeal, 48 Pat St. 121. I fail to see in the case any element of estoppel against the legatees. None of them were parties to any devastavit of the personal assets, nor did they do aught to mislead the exceptants. The rightE! of the latter certainly can rise no higher than the rights of Curtis H. Hays. Now, if the executors of William B. Hays (of whom the defendant was one) were trustees for the legatees, they were equally so for Qurtis, who could have taken steps to secure the payment of the legacies in relief of the share devised to him. As the residuary devisees could take nothing except what might remain after paymefit of the legacies, the legatees could safely repose upon the ample security of the real estate. It may be added that most of the legatees were, and still are, minors. 4. The exceptants, however, contend that in no view of the case should the fuul be charged with more than two-fifths of the legacies. the other shares of the testator's residuary estate being answer-
able for their proportions of this common burden. But the legatees were not parties to the partition of the real estate, and never acceded to any apportionment of the legacies. Without their consent part of the real estate, which is their security, has been converted into money by a judicial sale, and thereby their lien, which is paramount, has been transferred to the fund. Their legal right to the fund is complete, and neither the etceptants nor those under whom they claim have superior equities. Neffs Appeal, 9 Watts & S. 36; Arna's Appeal, 65 Pa.St. 72. To the payment of the legacies the fund must therefore go, and, the exceptants must seek Bubrogation and indem.nity in a different. proceeding. ld. The other devisees are not· before the court'. We are not advised as to their equities, and cannot actin respect to them. And now, July 15, 1882, the exceptions to the report of the auditor are overruled, and the distribution made by him is confirmed absosolutely.
.THOMAS and others v. ABMSTBONG and others.
WlreuI' Oourt, W. D. M1880Uri, W. D.
May Term, 1882.)'
ESTATES OF DECEASED-DESCENT AND DISTRIBUTION.
Where a second wife recovered judgment against a railroad company for the death of her husband by its negligence, and invested the proceeds thereof for thehenefit of her children and SUbsequently died, her heirs hold the estate iIi trust for themselves and the heirs of their father by a prior marriage, and the property or the proceeds thereof should be divided equally among the two sets of heirs. 2. SAlliE-RIGHTS OF HEms BY FIRST MARRIAGE. Where heirs of a first marriage were in some way induced to believe that they were not entitled to any part of their money coming from their deceased father's estate until the youngest came of age, their delay unti.1 that time to assert their claims is not such laches as will deprive them of their rights.
In Equity. French Dunlap, for complainants. Jenkins 'Twitchell, for respondents. KREKEL, D. J. The controversy in this case is between two sets of children of Michael Armstrong, who at the time of his death resided in the state of Pennsylvania. He was killed in that state by the Catawissa Railroad in 1862. Armstrong was married twice: first with Mary A. Armstrong, of which marriage there are three children, tho present plaintiffs, and next with Margaret Armstrong, of which marriage there are also three children, the present defendants.