
    ANN H. & EMILY ELLIOTT v. THE UNITED STATES.
    [No. 14331.
    Decided May 11, 1885.]
    
      On the Proofs.
    
    Land in South Carolina is devised to seven children, hut charged with a legacy in favor of the claimants. After the death of the testator, it is sold under the Direct Tax Acts, and a surplus is paid into the Treasury. Subsequent to the sale, a court having jurisdiction decrees that the legacies be a charge and lien upon the land sold.for taxes.
    If a legacy has been decreed by a court of competent jurisdiction lobea charge and lien upon land which was sold for taxes prior to the decree, the lien was transferred from the land to the proceeds thereof; and the legatee, the legacy remaining unpaid, may maintain an action for a surplus in the Treasury as “ owner,” within the meaning of the Direct Tax Aels 1862, 1863 (12 Stat. L., pp. 292, 690).
    
      The Reporters’ statement of tlie case :
    The following are the facts as found by the court:
    I. William Elliott, father of the claimants, was, August 5, 1861, and up to February 3, 1863, the day of his death, the owner in fee-simple of three tracts of land in Saint Helena Parish, Beaufort County, South Carolina, to wit: “ Cedar Grove,” consisting of 350 acres 5 “ Shell Point,” consisting of 330 acres; and “ Ellis Place,” consisting of 66 acres. After the death of said Elliott, and at the date of the sales hereinafter mentioned, these tracts of land formed a part of his estate.
    II. Under the provision of the laws for the collection of the United States direct tases,.a tax to the United .States of $28 was assessed against the said tract of land known as “Cedar Grove,” and át the time of the sale hereinafter mentioned the sum of the said tax, the penalty and interest thereon, and all charges was $46.01; a tax of $26.40 was assessed against the said tract of land known as “ Shell Point,” and at the time of the sale hereinafter mentioned the sum of the said tax, the penalty and interest thereon, and all charges was $43.42 ; and a tax of $5.28 was assessed against the said tract known as “ The Ellis Place,” and at the time hereinafter mentioned the sum of the said tax, the penalty and interest thereon, and all charges was $8.67. March 13, 1863, the said tracts of land were sold to satisfy the taxes and charges, and were bid off as follows: Cedar Grove, by Mrs. Jane A. McCreary, at $655; Shell Point, by John & A. E. Conaut, at $305; Ellis Place, by the United States, at. $150.
    III. William Elliott died February 3,1863, as aforesaid, leaving his last will and testament in force, wherein, among other things, he devised as follows :
    “ I will and direct that the rest and residue of my estate (excepting such portion as I have already devised or shall hereafter devise), whether consisting in houses, lands, slaves, bonds, notes, stocks, monies, boats, horses, mules, cattle, plantation stock, and chattels of every description, not already devised as aforesaid, shall be appraised on oath by seven impartial persons (each of my seven children interested therein having a voice) and distributed at such valuation among my then remaining children, Anne, Caroline, and Emily, share and share alike, to them' and their heirs forever, until the share of each of the above-named Anne, Caroline, and Emily shall have reached the amount of sixteen thousand ($16,0*00) dollars aforesaid. The balance accruing from the rest and residue of my estate to be distributed equally among my seven children hereafter named, to wit: Mary, Harriet, William, Kalph, Anne, Caroline, and Emily, or among such of them as may be living at the time of my death, or, being- dead, shall have married previously thereto and left legal representatives to inherit their share.”
    Testator’s daughter Caroline died during her father’s lifetime, without having married.
    1Y. In an action in the court of common pleas for Beaufort County, to which all the heirs of said William Elliott were parties, July 23, 1883, it was adjudged and decreed that the legacies given to the claimants were specifically charged upon all the real estate of the said testator not otherwise so devised by him as to vest in devisees named in his will, and the proceeds of the sale of all such real estate were directed to be applied to the payment thereof. The claimants have each received since said decree $654 on account of their legacies, and the sum still due thereon far exceeds the amount of the claim in this case.
    Y. The surplus of the sale of the three tracts, after paying-all taxes and charges, amounted to $1,011.87, no part of which has been paid to any person, and no demand upon the Secretary of the Treasury therefor has been made except by the claimants. A short time before the bringing of this suit, in 1884, the claimants made a demand upon the Secretary of the Treasury for this surplus, and payment was refused.
    
      Mr. James Lowndes for the claimants:
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
   Scofield, J.,

delivered the opinion of the court:

During the years 1862-’63 three several tracts of land in Beaufort County, South Carolina, owned by William Elliott, were duly assessed with direct taxes under the provisions of the Act August 5,1861 (12 Stat. L., p. 292), and March 13, 1863, were duly sold. One of the tracts was purchased by the United States and the other two by third parties.

The whole purchase-money amounted to $1,110, and the taxes, cost, and charges to $99.53, leaving a surplus of $1,011.48.

William Elliott died February 3,1863, more than a month before the sale.

No demand was made upon the Secretary of the Treasury for the surplus purchase-mouey until 1884, when the same was demanded by the claimants and payments refused.

Under the provisions of said act there is no doubt that the proper party is entitled to claim this surplus. (Taylor's Case, 14 C. Cls. R., 339; 104 U. S. R., 216; Lawton’s Case, 18 C. Cls. R., 595; 110 U. S. R., 146.)

Are the claimants the proper party ?

Prior to the sale the ownership of the land passed, under the will of William Elliott, deceased, to his seven children, but charged, in connection with other property, with a legacy to the claimants, amounting to $16,000 each. Owing to losses and depreciation of property by the war, no considerable portion of said legacies has been paid by the estate.

By a decree of the court in South Carolina, having jurisdiction in the premises, the claimants’ legacies were decreed to be a charge and lien, under the will, upon the land sold for taxes.

Under this state of facts the court holds that the lien of the claimants was transferred by the sale from the laud to the proceeds thereof. The claimants are therefore entitled to demand this surplus, the same, when paid, to be credited upon their respective legacies.

Judgments will be entered for each of the claimants in the sum of I505.93J, amounting for both claimants to $1,011.87.  