
    Andrew Mahaney v. Cornelius Mahaney, Jr., et al.
    [Decided March 29th, 1920.]
    1. Where ¡a testator- devised real property .to his son, subject to a charge of $100 each to his two 'brothers, the son by renouncing cou'ld not entitle himself to a. third share in1 Itlhe real 'estate dm common with his brothers free of the charge, on the theory that the result of his renounc-, ing the devise was that the testator died intestate. Such legacies are equitable lienis on the real estate in whomsoever the title may be, and the renunciation relieves ¡the devisee of persona! liability only; and the lien :of the brothers may be foredoised by ¡Sale of the land.
    2. Such renunciation having been mlade under ia misunderstanding as to the devisee’s rights, land not having changed the situation, but only injured himself, forfeiture of the surplus which may ¡arise on foreclosure of the equitable liens, will mot be enforced.
    3. The devisee of land subject to charges loin legacies was entitled to possession otn prdblafle ¡of the will, 'and the lauds were ¡Hable foa- the testator’s debts for one year after his dieath, the legacies being payable within a year from the .probate ¡of the will, and. interest running ¡on them from that date.
    4. If one of the legatees, whose legacy was madia ia change on the land, dies before the legacy was .paid, the legacy Itlo him wias vested in him' at his death, ‘and is to be considered ¡as personalty for distribution1.
    On bill, &c.
    
      Mr. Martin B. O’Keefe, for tbe complainant.
    
      Mr. Howard F. Barrett, for the defendant Cornelius Mahaney, Jr.
   Fielder, V. C.

Cornelius Mahaney died leaving a will admitted to probate in Morris county, June 4th, 1917. He left him surviving his three sons, Andrew, Cornelius, Jr., and William. By his will he gave certain articles of furniture to one son and directed that the balance of his household goods should be divided equally among the three sons, expressing the wish that these things should not he sold or given away by his sons, hut kept in remembrance of Mm and their mother. He also' made the following devise:

“I give and devise to my son Cornelius Malianey tlie house and lot where I mow reside, to him ¡and Ms ihieiais, providing, (however, that he pay to my sons Andrew amd Wiiliiam the sum of «rae ithouisairud dollars oaeh.”

Cornelius, Jr., accepted his share of the household goods, hut he has not taken possession of the house and lot. On December 14th, 1918, he filed with the Morris county surrogate a writing signed by him, wherein he renounced and gave up said devise.

William, one of the sons, died October 30th, 1917, intestate, survived by a widow and four minor children.

Complainant filed his hill against Cornelius, Jr., and the widow and next of kin of William, praying that Cornelius be decreed to pay his legacy with interest and costs, or that the same be decreed a lien upon the land in question, and that the land be sold for the pa3anent thereof. He praj^s for alternative relief in the nature of a hill for partition.

Cornelius, Jr., answered claiming that he was not hound to accept the devise and pay the legacies and he joins in the prayer for a partition of the lands. It is his theory that the result of his refusal to accept the devise, is that the testator died intestate as to the house and lot and that the three sons became seized thereof as heirs-at-law, as tenants in common.

1 think there can he no doubt but that under the will, Cornelius, Jr., would take an estate in fee in the house and lot, subject to the charge of the legacies to his brothers. It is not necessary to consider whether inr his written renunciation he could divest himself of title; neither is it necessary to consider the question whether he is not now barred from setting-up a claim adverse to the will because he accepted a bequest of personalty under it, for the reason that I consider the legacies to his brothers as equitable liens on the real estate in whomsoever the title may he, which Cornelius, Jr., cannot defeat by any act of his. I must give effect to the testator’s plain intention that Andrew and William should first be paid $1,000 each out of the house and lot before Cornelius could take anything. The most that can be said of the latter’s refusal to accept the devise is that it will relieve him of personal liabiblity for the payment of the legacies.

In the event that Cornelius should continue to decline to accept the devise and pay the legacies, the lien of the legatees should be foreclosed by sale of the land and this presents the question whether in view of his refusal to accept the devise, he is not estopped from claiming the surplus which may arise on the sale, and whether it should not be determined that the testator died intestate as to such surplus and that the same should go to the testator’s heirs-at-law as real estate, or to his next of kin as personal property. I think that Cornelius’ dissent to accept the devise was made under a misunderstanding as to his rights and since his refusal has not changed the situation and no one but himself has been injured by it, it would be inequitable to enforce a forfeiture of what the testator intended he should receive under the will.

Cornelius, Jr., was entitled to possession upon the probate of the will and the lands were liable for the testator’s debts for one year after his death. I shall hold th^t tire legacies were payable within one year after the probate of the will and that interest will run on them from June 4th, 1918. I shall advise a decree that Cornelius, Jr., pay the costs of this suit and be given an opportunity to pay the legacies with interest and in case of his failure to do so, that the house and lot be sold under the direction of a special master, to raise and pay the aforesaid amounts, and if suffidenlti money should not be raised by the sale to pay both legacies, the proceeds to be applied to them proportionately. If there should be any surplus it will be paid to Cornelius, Jr.

To dispose of all questions which now occur to me, I will add that the legacy to William was vested in him at his death and is to be considered as personal property for distribution among his widow and next of kin.  