
    John Josias Hanson vs. Samuel P. M. Hanson and others.
    
    June 1846.
    
      H. devised an estate in land to his wife and daughters, for life, with remainder in fee to his son and in the next clause of his will, gave to his son J. a sum of money, to be paid to him by S. in five annual instalments, “the first payment to he made at the end of the first yea.r after he gets possession of the plantation.” The devisees for life having died, some of the heirs at law of S., and the heirs of J., filed a bill, praying a sale of the land, and the proceeds thereof to he distributed among the parties severally entitled thereto. Held : that the legacy when due, was payable to the executors, or administrators, of J., and the bill must bo filed by them.
    The bill could not be filed until the first payment was due, viz., the end of the first year after the devisee in fee got possession.
    It would be no defence to such a bill to object, that before a sale can be made, the estate should be divided among the heirs of the devisor; or if incapable of division, that the heir entitled should have a right to elect.
    Appeal from the Equity side of Charles comity court.
    On the 14th March 1843, S. P. M. Hanson, P. D. G. Hedgeman, next friend of Sam.uel Adams, a minor, William H. Brawner, next friend of his minor children, &c., filed their bill, alleging, that Samuel Hanson, Sen., died sometime in the year 1817, having first executed his last will and testament, by which the said Sam.uel Hanson, Sen., devised to his two daughters, Margaret Beall and Charity Hanson, for and during their natural lives, a certain tract or parcel of land lying in Charles county, called and known by the name of “Hanson Hill;” and after the death of said Margaret Beall and Charity JIanson, the said devisor devised said real estate to his son, Dr. Samuel Hanson, charging the said real estate with the payment of $1250, by his son, Dr. Samuel Hanson, to his son, John Hanson; that Dr. Samuel Hanson died, leaving the following heirs and representatives, to wit: Samuel, Thomas M., William, John Josias, Eliza, who had intermarried with a certain Brands Adams, Charlotte and Maria. Samuel has died, leaving as his heirs and representatives, one of your complainants, Samuel Hanson, and Mary, who intermarried with your complainant, Wm. H. Brawner, and is now dead, leaving two children, both minors, to wit: John James and Mary E. C. Brawner; Eliza, has died, leaving one child, to wit: Samuel Adams, a minor. The remainder of the children of Dr. Samuel Hanson, heretofore named, are yet alive, and all of lawful age; that John B. Hanson died intestate, leaving the following heirs and representatives, to wit: Elizabeth, who has intermarried with Thomas M. Hanson, Drucilla P. Hanson, who has intermarried with William Hanson, and Samuel P. M. Hanson, one of your complainants, all of lawful age. That since the deaths of said Dr. Samuel Hanson and the said John Hanson, the two devisees for life, (to wit: Margaret Beall and Charity Hanson,) of said real estate, called “Hanson Hill,” have both died., the last named, to wit: Charity Hanson, sometime during the year 1842. Prayer, for a decree for the sale of said real estate, the proceeds arising therefrom to be distributed among the parties severally entitled thereto; and that your honors will order subpoenas to issue, commanding said Thomas M. Hanson, William Hanson, &c., and for other and further relief.
    With this bill the complainants exhibited the will of Samuel Hanson, Sen., dated 29th September 1817, which contained, among others, the following clauses :
    
      “I leave and bequeath to my dear and well beloved wife, Sarah Hanson, and my two daughters, Margaret B. Beall and Charity F. N. Hanson, the use of my dwelling plantation, for and during the term they may remain unmarried.”
    
      “Item. — I leave and bequeath unto my son, Samuel Hanson, and his heirs and assigns, forever, my dwelling plantation, after the death or marriage of my said wife and daughters; also my watch.”
    
      “Item. — I leave and bequeath unto my son, John B. Hanson, $ 1250, to be paid him by my son Samuel in five annual payments, the first payment to be made at the end of the first year after he gets possession of said plantation.”
    The will then devised a variety of personal property, slaves, &c., to his wife and children, by name, &c.
    
      “Item. — My will and pleasure is, that at the death of my wife, Sarah Hanson, all the property which I have bequeathed to her shall be divided equally between my four daughters, namely, Margaret B. Beall, Mary Fivall Cawood, E. B. McPherson and Charity F. N. Hanson.'”
    
    
      “Item. — I leave and bequeath unto my three grandsons, Samuel Hanson, Thomas Marshall Hanson and William Hanson, one tract or parcel of land lying in Nanjemony, binding on the Potomac, on which is a herring fishery, called and known by the name of Going near in fee simple. ”
    
    The defendants, Thomas M., William, John Josias and Charlotte Hanson, Elizabeth, the wife of Thomas M. Hanson, Drucilla P., wife of William Hanson, answered the bill, the only material part of which is referred to in the opinion of this court, and is therefore not set forth here.
    On the 1st November 1844, the county court, (0. Dorsey, A. J.,) decreed a sale of the real estate, in the proceedings mentioned, in the usual form.
    From that decree John Josias Hanson appealed to this court.
    The cause was argued before Archer, C. J., Dorsey, Chambers, Spence, Magruder and Martin, J.
    By JIeeder for the appellant.
    By J. Johnson for the appellees.
   Magruder, J.,

delivered the opinion of this court.

Samuel Hanson, senior, by his will, dated 29th September 1817, after devising to his wife and two daughters, for life, the land in the proceedings mentioned, gave the same, in fee, to his son Samuel; and in the next clause, gives to his son, John B. Hanson, twelve hundred and fifty dollars, to be paid him “by my son Samuel, in five annual payments, the first payment to be made at the end of the first year, after he gets possession of the plantation.” The devisees, for life, are dead, and no part of the said legacy being paid, this bill is filed by some of the heirs of Samuel, (the devisee in fee,) and heirs of John B. Hanson, to whom the twelve hundred and fifty dollars are given, asking for a sale of the land, “and the proceeds arising therefrom to be distributed among the parties severally entitled thereto.” The defendants, in their answer, say, that before a sale can bo made, the estate should be divided among the heirs of Samuel, or if incapable of division, the heir entitled should have a right to elect; and it is insisted, that no one could make payment of the legacy until an election.

If this was the only objection to the relief which was prayed, it would not hinder an affirmance of the decree; but there are objections to any relief being afforded in this case, and the mention of which, will enable the persons entitled to claim the legacy, to proceed correctly, if in order to recover the money given to John B. Hanson, it should be necessary to file another bill of complaint. The money, when due, is payable to the executors or administrators of the legatee, and the bill must be filed by them.

Another objection to the decree, which will be noticed, is, that it docs not appear, that the first payment which is to be made, was due at the time that this bill of complaint was filed. The first payment was to be made at the end of the first year, after he, (the devisee in fee,) gets possession of said plantation. The bill, filed on the 14th March 1843, alleges, that one of the devisees for life died, “sometime during the year 1842.” The defendants, in their answer, insist, that the money is not due till “late next fall; the tenant for life, Miss Charity Hanson, not having departed this life till the fall of 1842,” and there is no testimony in the case.

For these reasons, if there be none others, the decree must be reversed, with costs, and the bill dismissed.

decree reversed and bill dismissed.  