
    Brown and others against Furer executrix, &c.
    In Error.
    
      Wednesday, May 20.
    WRIT of error to the Court of Common Pleas Dauphin county. of
    An action to recover a legacy charged upon real essupported1 & aSlunst the dere-tenants of promise to
    It seems, ‘j“^(]ebactl011 brought eSorfor'and ment should as to charge the tad only persons of the defendants*
    Xn the Court below it was an action of debt brought to May Term, 180/, by Agnes Furer, executrix and residuary legatee of Agnes Brown9 to recover a legacy of one hundred pounds bequeathed by one Daniel Brown, to her and charged upon a tract of land, of - which one of the defendants was devisee and the rest terre-tenants.
    The declaration set forth, that Daniel Brown being seised of a certain tract of land, (describing it,) on the 15th day of January, 1/80, made his testament and last will, by which he devised the said tract of land to his son John, charged with the payment of one hundred pounds to his mother, the wife of the testator; that John Brown accepted the lands so devised to him, and entered and took possession of the same, and afterwards, to wit, on the 23d February, 1/91, conveyed them to a certain Peter Ebersole, in fee simple, who entered and took possession thereof, and continued in possession until the day, &c. when he died, leaving Elizabeth Ebersole, 
      who intermarried with Michael Cassel, John Ebersole, Christina Ebersole, who intermarried with John Smith, Barbara Ebersole and Catherine Ebersole, his children and heirs at law, an(q Barbara Ebersole his widow, who entered and took possession of the said lands and tenements, and continued in pos- . . ’ _ . . , . 1 session thereof until the impetration or the writ in this case; the said legacy and every part thereof being unpaid. The declaration then stated, that Agnes Brown, on the 16th January, 1803, made her testament and last will, and set out that part of it which bequeathed the legacy in question to her daughter, Agnes Purer, the present plaintiff, and made her the residuary legatee, and sole executrix of her will. It then concluded in the common form.
    The defendants pleaded in abatement, that another suit was depending for the same cause in the Circuit Court of Dauphin county, to March Term, 1804, to which the plaintiff replied, that that suit was abated by the death of Agnes Brown and Peter Ebersole, and that the present action was brought by the legal representative of Agnes Brown. To this replication the defendants demurred, and on motion of the plaintiff’s counsel, the Court dismissed the plea in abatement, because it was not verified by affidavit.
    The defendants then pleaded non debent, and payment with leave, &c. on which issues were joined, and the cause was tried on the 15th December, 1815, when a verdict was found for the plaintiff.
    On the trial, the defendant’s counsel requested the Court to charge, the jury on five points, which they stated. The charge was against the defendants on the first four points, and the last the Court declared to be immaterial in the cause.
    1. That an action of debt, being a personal action, wili not lie against a devisee of land charged with the payment of a legacy, the suit being sustainable against the executors only, Under the act of assembly.
    2. That such suit will not lie against terre-tenants.
    3. '- That if it could be sustained against the devisee,it could only be sustained during ownership of the land, and that a sale and delivery of possession of the land would be a bar to such a suit.
    4. That the plaintiff having sued all the defendants, except 
      fohn Brown, as the widow, children, and heirs at law, of Peter Ebersole, and averred their entry and continuance in possession to the commencement of this suit as such, she could neither claim nor give evidence against them in any other character and as five of the defendants, are the grandchildren, and not the children of Peter Ebersole, the plaintiff could not recover.
    The charge of the Court on these points, and their order to strike off the plea in abatement, were now contended to be erroneous by Elder and Hopkins, who relied upon the act of 21st March, 1806.
      Travers v. Buckley.
      
       1 Com. Dig. 2. Abatement, C. 1. 29th Rule of Common Pleas. Act of 13th April, 1791. Act of 21st March, 177Z.
      
       Livingston v. Livingston.
      
       Beeckerv.Beecker.
      
       Jeffersonv.Morton.
      
       Livingston's exr’s. v. Tremper.
      Gilb. Hist, of C. P. US 5. Jackson v. Shaffer. 1 Cromp. Pr. 134.
    
      Godwin and Duncan, for the defendant in error,
    cited Paschalv. Keterich.
      
       3 Com. Dig. Debt, A. Ewer v. Jones.
      
       Short v. Coffn.
      
       Rapp v. Elliott.
      
       1 Com. Dig. 39. Abatement, H.Í. Douglas v.Beam.
      
       1 Cromp. Pr. 136. Nichols v. Postlethwaite.
      Phelps v. Holker.
      
       Vass v. Smith.
      
      Act of 4th April, 1798. 8 Co. 162. Black v. Wistar.
      
       Thompson v. Musser.
      
       Tuttle v. Love.
    
    
      
      
         4 Sm. L. 330.
    
    
      
       1 Ves. 386.
    
    
      
       S Sm. L. 30.
    
    
      
      zZ) 1 Sm. L. 383.
    
    
      
       3 Johns. Rep. 189*
    
    
      
      
         7 Johns. Rep. 105.
    
    
      
      
         2 Saund. 7. note 9.
    
    
      
      
         It Johns. 101.
    
    
      
      
         11 Johns. 513.
    
    
      
       2 Lay. 151.
    
    
      
       2 Ld. Ray. 937. 6 Mod. 27. S. (?.
    
    
      
       5 Burr. 2730.
    
    
      
      
         2 LaU. 184.
    
    
      
      
         2 Binn. 78.
    
    
      
       2 Loll. 131
    
    
      
      
         1 Lull. 261.
    
    
      
      
         6 Crunch, 226.
    
    
      
       3 Sm. L. 331.
    
    
      
       4 Dali. 267.
      
    
    
      
       1 LaU. 458.
    
    
      
      
         7 Johns. 470.
    
   The opinion of the Court was delivered by

Tilghman C. J.

Daniel Brown deceased, devised a tract of land of which he died seised, to his son John Brown, one of the defendants in fee, charged with a legacy of 100/. bequeathed by the testator to his wife Agnes, who died without having received the said legacy, having made her last will and testament, and constituted Agnes Purer, the plaintiff, the executrix thereof. John Brown, after the death of his father Daniel, entered into the land devised to him, and conveyed the same to Peter Ebersole deceased. Peter Ebersole died sejse(j Gf the saj¿ leaving Elizabeth Ebersole, (married to Michael CasseL one of the defendants.) John Ebersole, ' '* Christina Ebersole, (married to John Smith, another of the defendants,) Barbara Ebersole, and Catherine Ebersole, his children and heirs, and Barbara Ebersole his widow, all of whom, after the death of the said Peter Ebersole, entered into the said tract of land, and became seised thereof. This action was brought, for the recovery of the said legacy of 100/. by Agnes Purer, the executrix and residuary legatee of Agnes Brown, against John Brown the devisee of the said land, and the widow and children of Peter Ebersole, who purchased it of the said John Brown, in the Court of Common Pleas of Dauphin county, and judgment was rendered for the plaintiff against all the defendants jointly. This judgment may be executed not only on the land charged with the legacy, but operates equally and personally on all the defendants. Their property of every kind, may be levied on; their bodies may be imprisoned. It violates the principles of law and equity. Neither John Brown the devisee, nor any of the other defendants ever made a promise to pay the legacy. There is no reason, therefore, why they should be personally liable to the payment. The land is the fund to be looked to, in whatever hands it may be. A legacy charged on land, is a good consideration to support an assumption to pay it, by the devisee, or terre-tenant. But, where there is no express assumption, there is no personal obligation to pay. This distinction was taken by the Supreme Court of New York, in the cases of Livingston v. Livingston's exr's. 3 Johns. 189, and Beecker v. Beecker, 7 Johns. 99. But suppose there is no assumption, how is the legatee to recover ? In those states which have courts of chancery, there is no difficulty. On a bill filed by the legatee, there will be a decree for the sale of the land. But we have no court of chancery. It is necessary, therefore, that remedy should be had in the courts of common law. There was a period, when in England, legacies were recovered in the common law courts. During the time of the Commonwealth, the ecclesiastical courts were abolished, and chancery had not then taken jurisdiction in cases of legacy. I believe, Lord, Nottingham Was the first chancellor, who assumed that jurisdiction. To prevent a failure of justice, therefore, the common law courts permitted suits for the recovery of legacies. This appears in the case of Nicholson v. Shirman, 1 Sid. 45, and T. Ray. 23. Lord Holt, indeed, is reported to have said, in the case of Ewer v. Jones, 2 Ld. Raym. 937, that a legatee might maintain an action of debt against the terre-tenant, for a legacy charged on land. But we have no record of any judgment at common law for a. legacy, since the time of the Commonwealth. It sufficiently appears, however, that the English courts of • common law, have, in cases of necessity, taken jurisdiction in matters of legacy. And upon the same principle, our Courts ought to assume the same jurisdiction. Where there is a right, we must not suffer it to be said, that there is no remedy. Now the remedy, where there is no express promise to pay, should be against the fund which the testator has designated; this is agreeable to reason and justice. The only question then is, against whom shall the action be brought. This case does not fall within the provisions of our act for the recovery of legacies. In order to do complete justice, it would seem right, that the terre-tenants should be called on, because they have the immediate interest in the land. There is great reason also, for including the executor, in the action, because, by our law, all the lands are liable to the payment of the testator’s debts, and may be taken in execution on a judgment against the executor. It is proper, therefore, to afford the executor an opportunity of shewing, that the land is not more than sufficient to discharge the debts, in which case the legacy must fall. One of the plaintiff’s counsel cited a precedent, from a manuscript book of entries of the late Judge Yeates, of a declaration in' debt, for the recovery of a legacy charged on land, against the executors and terre-tenants, in the case of Patton v. M'Cawley's exr's. in the year 1782, in Lancaster county. This declaration appears to have been drawn by Mr. Edward Burd, the late prothonotary of this Court, who, I know, had access to the book of precedents of the late C. J. Shippen. Mr. Ship-pen had been long prothonotary of this Court; and had copied the precedents in the book of his father-in-law, Tench Francis, who, about the middle of the last century, was the attorney-general of Pennsylvania; so that we have great reason to suppose, this form of action may have been devised in early times. I know of no other form, better calculated to do justice, always remembering, that judgment is to be entered, so as to charge the land, and not the persons, of the jefencjantSt Without absolutely committing myself, therefore, on the opinion now thrown out, as to the form of action, j say5 that according to my present ideas, the proper parties to be made defendants, are, the executor and terretenants. But I am clearly opinion, that judgment rendered in this action was erroneous, and should be reversed.

Judgment reversed.  