
    Ida E. Damuth, Plaintiff, v. Jennie M. Lee and Jessamine Lee, Defendants.
    (Supreme Court, Lewis Trial Term,
    May, 1897.)
    • Will — Direction to devisees to pay legacy, with conditional devise.
    The will of the father of the parties gave his homestead farm .to the defendants, share and share alike, and directed them to pay to the plaintiff $3,000 in yearly payments of $500, and in default of such payments, or any of them, devised sixty acres of said farm to the plaintiff during her natural life, and on her death gave all the real and personal estate she received under the will to the defendants. The defendants being unable to make the first payment, notified the plaintiff that she could take the sixty acres as provided by the will. Held, that the defendants were not personally liable for the payment of the legacy to the plaintiff, unless they retained the whole farm; that the devise of the sixty acres was not intended as a penalty, but as a provision in lieu of the legacy, and that, under the circumstances, an action to recover an installment of the legacy could not be maintained.
    Action is-brought to recover the sum of $500 as an installment of a legacy for the payment of which to plaintiff it is claimed the defendants have become personally charged in connection with the devise to them of certain real estate.
    Thomas F. Kearns, for plaintiff.
    Charles S. Mereness, for defendants.
   Hiscock, J.

Lafayette Lee had a wife and three daughters, two of them, the defendants, by said wife, and one of them, the plaintiff, by a former wife. On or about February 14, 1896, he died leaving the real estate hereinafter mentioned and also a last will and testament which was thereafter admitted to probate, and the sixth clause of which read as follows: “I give, devise and bequeath to my daughters Jennie M. Lee and Jessamine Lee my homestead farm on which I now live, situate in the town of Martins-burgh, Lewis county, H. T., consisting of about two hundred ..and fifty-four acres of land, to be equally divided between .them, share and share alike, and I direct that said Jennie M. Lee and Jessamine . Lee shall páy to Ida E. Damuth, three thousand dollars to be paid in five hundred dollar yearly payments, the first payment to be made one year from the time of 'my death, and in default of such, payments or any of them, I give and devise to said Ida E. Damuth' sixty acres of said homestead farm on the north side of said farm and next to Martin Sheldon’s farm and to be wide enough to contain sixty acres of land to run the whole length of said farm to have and to hold the same during her natural life, and after her death I give, devise and bequeath to the children all the real and personal property that said Ida E. Damuth receives from my estate to be equally divided between them, share and share alike.”

Before the date when the first installment of said $3,000 became .due, defendants in substance notified plaintiff that they could not pay said sum' and that she could take the sixty acres of land as' provided in said clause. Defendants, with their mother, entered into the occupation and possession of the farm mentioned in said clause except said sixty acres of which they did not take possession.

It is claimed by plaintiff that by this devise and by defendants’ acceptance of said portion of said farm they became personally and irrevocably charged with the payment of said sum of $3,000, and ' that in addition thereto if they made default in the payment of any installment they were to lose said sixty acres of land by its passage under the terms of said will to plaintiff and her children.

There is no dispute between the parties about the general doctrine of charging the payment of a legacy upon the real estate devised or upon the devisee thereof personally, or, as I understand it, that this clause and the acceptance by said, defendants of said devise in whole or in part would accomplish such result, except for the latter part of the clause providing certain results in case defendants made default in the payment of the legacy. It is urged by defendants that the fan construction and meaning of this whole clause taken together is that if defendants retained the whole farm then they were to pay plaintiff the. sum mentioned as a fair equivalent of what otherwise might be her natural interest in the land, but that on the other hand they were not to be personally charged with such payment, the remedy and compensation to plaintiff for their failure to malee it being furnished in the then

transfer of nearly a quarter of the real estate to her' in lieu of the money. I believe that this is the reasonable interpretation of the clause. Ordinarily where a legacy is charged upon a devisee personally, the very act which makes him so chargeable likewise vests in him the title to the real estate, and the result of his default to pay is a liability to proceedings to enforce such payment. He is not by such default divested of his title to the real estate. The same act which makes him liable to an action for the legacy does not at the same time deprive him of the estate which furnishes the compensation and consideration for his liability. The only theory upon which plaintiff seeks to sustain her theory of this case is that the last provision of the clause in question providing for a transfer of the title of the sixty acres from defendants to plaintiff in case the former did not pay the legacy, was intended to provide a penalty for the failure to pay. That is, if defendants paid five of the six installments provided and should be unable to pay the latter they were to be punished for such failure by losing the entire sixty acres. This construction, and interpretation as stated does not seem to me so reasonable as that urged by defendants. The spirit of the law is against penalties and forfeitures and there must be found a very clear intention to exact and impose them which I do not think is expressed by the clause in question.

Evidence has. been given with reference to some of the surroundings of the parties, with reference to the value of the real estate, etc., but none which in my judgment is sufficient to overthrow the views above expressed. It is urged by plaintiff that the provision of the clause which says that “ all the real and personal property ” that said plaintiff might receive from the testator should be equally divided between her children sustains her view of this case that she was not only to hold the defendants liable personally for the payment of the $3,000, but also in a certain contingency to receive the real estate. The words in question, however, if as important as claimed by plaintiff, do not require her construction. They would be as well satisfied by the happening of a contingency that defendants having paid plaintiff one or two installments might be unable to pay the remainder and keep the real estate, in which case the plaintiff would have received from the testator’s estate both personal and real estate.

The complaint is, therefore, dismissed, with costs, and findings may be prepared in accordance therewith.

Complaint dismissed, with costs.  