
    SAMUEL LANNING v. ISAAC COLE.
    1. S. L. being seized of lauds which were encumbered by mortgage and judgments, made a will devising the same. The lands were afterwards sold under the executions issued on the judgments, and bought at the sheriff’s sale by I. 0. An agreement was afterwards made between I. 0. and S. L. that on S. L.’s paying to I. C. the amount of the purchase money, and interest thereon, in six months, I. C. would convey the premises to S. L. S. L. filed his bill, stating that he had tendered the money required by the said agreement and demanded a conveyance, but that I. 0. refused it, and praying a decree for the performance of the agreement.
    2. An opinion was pronounced in favor of the complainant, but before the decree was signed the complainant died. Leave was given to file a bill of revivor. Held, that the heirs-at-law of S. L. were the proper persons to revive or prosecute the suit; that the executor and the persons interested in the personal estate under the will of S. L. should be made parties.
    3. A, owning land, makes a will devising it. The land is afterwards sold on execution. An agreement is then made between the purchaser at the sale on execution and A, that the purchaser, on A’s paying him what he gave for the property and interest on it in six months, will convey the property to A. A afterwards died. Held, that the interest acquired by A in the land under the said agreement did not pass by the will.
    
      4. A will, as to land, speaks only as of the time of making it; as to personalty, it speaks as in articulo mortis.
    
    In July, 1840, Samuel Lanning exhibited his bill, stating that he was lately seized in fee of lands in the city of Camden, on which he had erected six three-story dwelling-houses, at a cost of ■ $12,000, independent of the value of the laud, and that the same will rent for the interest of $20,000; that he had encumbered the premises by a mortgage of $3500, and that there were other liens thereon, by judgments, exceeding $2000; that executions were issued on the judgments, to the sheriff of Gloucester, and that the said sheriff, on the 3d October, 1839, proceeded to sell the whole of said premises in one parcel, The bill states that the advertisements and adjournments of sale made by the sheriff were irregular, and insists that the whole proceedings of the sheriff were unlawful. That the whole property was struck off in one parcel, and sold to the defendant, Isaac Cole, for $3080. The bill states that Cole, on the day of the sale, circulated divers false representations as to the complainant’s title to the premises, (stating them,) thereby depreciating the-value of the premises, and discouraging persons from bidding. That so flagrant was die conduct of Cole and the sheriff, in reference to the sale, that the complainant resolved to impeach it as fraudulent, and to prevent the delivering of a deed ; and that Cole, being aware thereof, made several proposals to him, and, on the 28th November following, entered into an agreement in writing with the complainant, under his hand and seal, by which he agreed that, the complainant should have six months from the 26th October preceding to raise the amount of t he purchase money paid by Cole, and the costs and expenses incident to the sale, with interest; an;! that on the payment thereof, he, Cole, would convey the premises to the complainant, provided he, the.coinplainant, should raise the money on mortgage of the premises for the term of five years and for his sole benefit, ; the said Cole to have, from the date of the agreement, the possession of the premises, and to receive the rents thereof; and that on the re-payment of the purchase money, &c., as aforesaid, he should account for the rents, after deducting repairs, That on the delivery of the said agreement to the complainant, he permitted Cole to take possession. That on the 25th April, 1840, he tendered to Cole the amount required by the said agreement, and demanded a reconveyance, but that Cole refuses, &c.
    
    The bill seeks a specific performance of the agreement.
    The defendant answered the bill, and depositions were taken; .and the cause was brought to hearing on the pleadings and proofs, before Chancellor Pennington, and at the October term, 1842, the Chancellor pronounced an opinion.
    Oil the 11th July, 1844, on its being made to appear that the complainant had died after the opinion was pronounced, no decree having been signed, and on motion in behalf of Joseph Porter, administrator oum. test, annex, of Samuel Lanning, Chancellor Haines made an order granting leave; to file a bill of revivor, &c., on that day, for the purpose of reviving the suit in the name or names of some proper complainant or complainants, without prejudice to the question of the right of the complainant to file such’bill.
    On that day a bill was filed by Joseph Porter, administrator with the will annexed, stating the filing by Lanning, on the 20th July, 1840, of an original bill against Cole, and referring to that bill for the contents thereof, and the issuing of process thereon ; and that the defendant thereto answered the said bill; and that such proceedings were had iu that cause that at the October term, 1842, of this court, the Chancellor delivered an opinion in favor of the complainant therein; and that the agreement set forth in the said original bill should be specifically performed ; and that it should be referred to a master to ascertain, &e. That after the said opinion was delivered, a dratt of a decree, in conformity thereto, was prepared, (setting forth the draft.) That before the said draft was signed, and on the 10th September, 1842, Lanning died, leaving a will, of which Amos Bullock was thereby appointed executor. That Bullock renounced the executorship, and that on the 6th February, 1843, administration with the said will annexed was granted to the said Joseph Porter. This bill then states that the said Lanning, being seized of the said property at the time of the making and publishing of his said will, and up to the time of the sale thereof by the said sheriff, did, by the said will, give and devise the same to the executors therein named, in trust, until the youngest child of his son Paul shall attain 21 years, to be rented out by his executors, and the rents, after defraying the expenses of repairs, to be disposed of as follows: $50 annually to be paid to his grand-daughter, Mercy Lanning, and $50 a year to eacli of h's grand-children, Charles, Sarah, Hannah, Ann and Samuel Lanning, children of his son Paul, after they shall respectively attain 21 years, until the youngest child of his sou Paul shall attain 21 years; and the remainder of the net proceeds he directed his executors to pay, annually, to his daughter-in-law, Rachel Lanning-, for the purposes therein mentioned, and he directs the executors to «ell the property when the youngest child of Paul shall attain twenty-one years, and to divide the proceeds of the sale into eight equal parts, and to pay one part to the said Rachel, wife of liia son Paul; but if she dies before the sale and division, to pay this share to her children, except the daughter Mary; the will disposing of the other shares among the children of Paul some of whom are minors.
    The bill then states that the said original suit abated by tlw death of the said Samuel Lanning, and that the complainant, Porter, as he is advised, is, as administrator with the will of said Panning annexed, entitled to have the said suit revived against the said Cole, and to have a decree therein perfected and carried into effect, in the same manner as the complainant, Lanning, if living, might have liad.
    To this bill the defendant demurred.
    
      Wm. N. Jeffers, m support of the demurrer.
    
      Abraham Browning and William Pennington,, contra.
    
    They cited Story's Eq. Pl., §§ 354, 356, 626, note 5, 378, 379, 380; 1 Green's Ch. 363.
   The Chancellor.

The question involved in this case mast be decided on the principles which would be applicable to it if Samuel Lanning had never had any interest in this real estate except what Cole's agreement to convey it to him gives. The-sale of the property by the sheriff divested him of the interest he theretofore had in it. No proceeding to set aside the sale was had; and for the purposes “of the present inquiry that sale must be taken to have been valid. The interest which Lanning acquired in the lands under the agreement of Cole to convey the same to him, was a descendible and devisable interest. This interest descended to his heirs; it did not pass by the will he had made and published before he had acquired it.

A will, as to land, speaks only as of the time of making it r is to personalty, it speaks in articulo mortis, though made long before. The fact that at the time he made the will he was the owner of these lands, and devised them specifically, can make no difference in the application of this principle.

All his interest was subsequently divested. It will not be contended that the interest he then had passed by .the will. What interest, then, could he devise? Certainly, only the interest he acquired under this agreement. But that interest was acquired subsequently to the making of the will, and could not pass by it. The equitable interest, then, which Lanning acquired under the agreement, descended to his heirs-at-law; and the heirs are the persons interested in the specific performance of the agreement. The executor should be a party to the proceeding, because, if there be personal property sufficient, he will be decreed to pay the purchase money for the benefit of the heirs. And the persons entitled to the personal estate under the will should also be made parties.

In this view of the case, even if a decree had been signed by the Chancellor, the lands would not have passed by the will. T!he executor of the will, then, is not the proper person to revive or prosecute the suit.

The demurrer must be allowed.

Order accordingly.  