
    * Patton, Administrator of Page, v. Williams and Wife.
    Argued Dec. 20th, 1811.
    i. Wills — Construction—What Constitutes a Legacy— Case at Bar. — A testator bequeathing to the executors of his daughter’s husband, to be divided among her children by him, a sum of money, it was considered as a legacy to them from their grandfather, and not assets belonging to the estate of their father; notwithstanding the object of the bequest was, in the will, stated to be to make up their mother’s fortune; part of which was not paid in her lifetime, nor to her husband, after her death.
    
    z. Legacies — Interest on. — If a testator “desire that no interest shall be demanded on a legacy, but that the executor will pay it off as soon as money can be raised by selling certain property,” no interest is to be demanded until a reasonable time for raising the money shall have elapsed; after which, if the executor improperly withhold payment, he is chargeable with interest.
    3. Wilis — Fund Appointed for Payment of Debts — Effect. — A fund appointed by a will, for payment of debts and legacies, must be considered sufficient, unless the contrary be proved.
    4. Executors — Parol Agreement to Pay Legacy from Individual Estate — Validity.—A parol agreement, by an executor, to pay a legacy out of his own estate, is not void under the act to prevent frauds and perjuries, if a decree was previously obtained for the legacy to be satisfied out of certain property appointed by the testator; for part of which property the executor was accountable under the decree, and responsible de bonis propriis; and such agreement was made in consideration of forbearance to enforce the decree. 
    
    Mann Page, the elder, by his last will and testament, dated the 7th of November, 1780, directed certain lots, laid off for a town in Hanover County, to be sold to pay his just debts and legacies.
    Another clause in the said will was as follows: — “As it has pleased God to deprive me of my daughter Judith Burwell, I give to the executors of Lewis Burwell five hundred and seventy pounds current money, to make up her fortune fifteen hundred pounds; to be divided between his two daughters Judith and Alice; having paid Mr. Burwell eight hundred pounds on his marriage, and, about five or six years past, one hundred barrels of corn, and a negro man Jack, value one hundred and thirty pounds; and I imagine there are some articles still to be carried to my credit.
    *The testator, also, “desired than no interest should be demanded for the legacies left, but that his executors would pay them off as soon as money could be raised by selling what was directed to be sold.”
    The real and personal estates devised by the will to the widow and children of the testator were very considerable.
    William C. Williams, having married Alice Grymes Burwell, one of the said legatees, and as agent for Judith C. Bur-well, the other applied to John Page, the only surviving executor of Lewis Burwell, for payment of the said 5701. who, in a letter dated February 15th, 1795, informed him that, “no doubt, the executor of Mann Page, as soon as they could ascertain what proportion of his debts was to be paid by each of his sons, would cheerfully pay the legacy according to the will; but perhaps the creditors of Lewis Burwell might claim it as a debt due to him, because, in his books, he had charged it as such; and that the claims against his estate were large enough to consume all the assets, including that sum.
    A suit was thereupon brought in the late high Court of Chancery by the said legatees against Mann Page, the only acting executor of the said Mann Page, deceased, and the said John Page, surviving executor of Lewis Burwell, to recover the legacy in question; and the plaintiffs prayed that Page’s executor (having used the estate of his testator, and not paid the money as early as it ought to have been) might be decreed to pay the same with interest.
    Page’s executor, in his answer, stated that a part of the estate, appointed in the will to be sold for the payment of the debts and legacies, remained unsold, and submitted to the Court whether he was bound to pay the legacies from any other fund than the one pointed out by the will. But he did not state whether the fund so provided was sufficient or not; — or how much thereof remained unsold; or assign any reason for having failed to apply it sooner to the objects for which it was intended.
    *No answer was filed by Burwell’s executor; and no depositions were taken. The cause was heard on the bill, answer of the defendant, Mann Page, and exhibits, and, on the 7th October, 1799, the Chancellor (Wythe) decreed “that, unless the defendant, Mann Page, do pay unto the plaintiffs, William C. Williams and Alice his wife, (in right of his said wife,) and Judith Carter Burwell, five hundred and seventy pounds, current money of Virginia, being the amount of the legacy left them by his testator, with interest thereon from the first day of January, 1783, and their costs, out of the fund appropriated by his testator for the payment of his legacies, on or before the first day of December next ensuing the date of the decree, certain commissioners, after advertising, &c. should expose to sale the lots laid off by the testator for a town, (except a square devised by him to his son Matthew Page,) and, out of the proceeds thereof, pay to the plaintiffs their demand: and, in case the defendant, Mann Page, shall have sold the said lots, that he render an account thereof, with the application of the money, and an account of the profits of the lots since the death of his testator, which accounts were also directed to be made up before the same commissioners.
    This decree was affirmed by the Court of Appeals, the 9th of November, 1801.
    On the 3d of July following, a letter was addressed by the plaintiff, Williams, to the defendant, Mann Page, enclosing copies of the decrees, and declaring his willingness to receive interest annually, if the defendant would secure the payment of the principal, in any reasonable time, by a mortgage on property; and that he would take upon himself to pay the other legatee ; — observing that, if the defendant would not accede to this arrangement, “he supposed the account must be settled according to the decree.” What answer was returned to this letter does not appear. But it seems that before the 6th of December, 1802, the defendant had, by parol agreement, assented to the said proposal; for on the last-mentioned day, *the plaintiff sent him another letter enclosing a statement of the claim, and a blank mortgage, in which he requested him to put such property as he pleased, and to make the time of payment agreeable to himself. These papers were delivered by a certain John W. Green, who afterwards stated, on oath, “that Mr. Page then appeared languid and indisposed, and said he had been very unwell for several days; that, after having examined the papers, he returned the whole of them (except the letter) to the witness, saying they were all right, and that, when he came to town, he would fill up and execute the mortgage, or to that effect, appearing only averse to finishing the business, at that time, on account of his then indisposition.”
    The defendant failed, however, to execute the mortgage, and departed this life, some time in the year 1803, after making a will, dated March 16th, and recorded October 13th, in which he subjected all his estate, both real and personal, to the payment of his "debts', bequeathing to his executors all his property, of what nature soever, in Hanover Town, the town of Bath, in Berk-ley County, and the State of Tennessee, together with his personal property, to be by them applied, in the first place, to that purpose.
    On the 19th of January, 1807, George Miles, who had married the plaintiff, Judith C. Burwell, by a writing under his hand, “in pursuance of an agreement heretofore made, and mone3r received, and a settlement this day made, assigned, transferred, and made over, to William C. Williams, his moiety of the said legacy.”
    On the 1st of May, in the same year, a bill was filed in the Superior Court of Chancery for the Richmond District, by the said Williams and wife, and in his own right as assignee of George Miles, against Robert Patton, administrator, with the will annexed of the said Mann Page the younger, and also against his devisees; setting forth the circumstances above stated, and praying a decree against his estate for the amount due on account of the *legacy on the 3d day of July, 1802, with interest on that sum till payment, according to the agreement aforesaid. The plaintiffs urged, moreover, that the said Mann Page, ‘ ‘considering the property decreed to be sold for payment of the legacy, as completely his own by the said contract, had actually devised the same as his own property.”
    The defendant, Robert Patton, in his answer, said, that the lots in Hanover Town were, under the will of Mann Page the elder, chargeable, in the first place, with his debts; and the defendant would be able to prove that those debts greatly exceeded in amount the value of the said lots; that the legacies were chargeable on no fund, except the possible residuum of the sales of those lots, after paying the debts; and, of course, were not chargeable upon the testator’s representatives, or upon any existing portion of his estate: that, if any such agreements were made as those stated in the bill, they were without consideration valid in law or equity, and therefore void: that under the act to prevent frauds and perjuries, Mann Page, the executor, could not charge himself individually with the payment of the legacy, or with any debt of the estate managed by him, without a note or memorandum in writing; which act of assembly the defendant relied on as fully as if he had pleaded the same. ‘ ‘How far the said executor had committed himself on this subject by his own will, this defendant submits to the Court: being informed, that if it contained an assumption of a right of property, such assumption is void, and probably grew out of that general ignorance of the state of his own affairs by which he was uncommonly distinguished.”
    Mann Page, one of the devisees, filed an answer, merely referring to, and adopting that of Patton. The other devisees never answered.
    A written agreement between the plaintiff and the counsel for the defendant was filed as an exhibit, in the following words: “It is agreed that, if the Court should be of opinion, that the amount of the debts, chargeable by the will of the testator on the Hanover lots, should be of ^importance to be ascertained: or if the proportion which those debts would bear to the value of the lots should be important in the decision of the claim, '.hen, in either of those oases, a commissioner may be directed to take an account of those debts, and of the value of the said lots, to be evidence in the cause.”
    May 20th, 1807, the cause came on to be heard, as to the defendant Patton, by consent of parties, on the bill, answers, exhibits, and examination of John W. Green, the witness aforesaid; on consideration whereof, the Chancellor (Taylor) “was of opinion that the testator of the defendant, by his agreement with the plaintiff, was bound for the legacies, (to recover which the former suit was instituted,) as, thereby, the plaintiffs in that suit forbore to proceed under the decree; and the plaintiff William C. Williams hath, also, conformably to the said agreement, paid to George Miles the one half of the legacy aforesaid, to which he was entitled in right of his wife, who was a plaintiff in that suit; -and that the statute for the prevention of frauds and perjuries is no bar to the plaintiff’s demand, as, in this case, there is a sufficient consideration to support the promise.” He therefore adjudged, &c. that the defendant, Patton, out of the estate of his testator in his hands to be administered, do pay unto the plaintiffs nine hundred and sixty-five pounds seventeen shillings and three pence three farthings, with lawful interest thereon from the third day of July, 1802, till payment, and the costs expended by them on this occasion, in full satisfaction of the decree above referred to.”
    Prom this decree the defendant Patton appealed.
    
      
      See monographic note on “Legacies and Devises” appended to Early v. Early, Gilm. 124.
    
    
      
       In this case there was no proof of a marriage contract; — the charge in Burwell’s books not being evidence in his favour, and the words of the will being uncertain in that respect: since the testator might have intended to make up his daughter’s fortune, 1B0C1. without binding himself to do so. But quaere, if such contract had been proved, would not the decision have been different? — See Chichester’s executrix v. Vass’s administrator, 1 Munford, p. 98, pi. 4, 5.— Note in Original Edition.
    
    
      
      See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       The executor being required by the decree to render an account of the money he had received, for such of the lots in Hanover Town as he had sold, and also for the profits of them all, since the death of his testator, would have been liable, de bonis propriis, by the final decree, for the balance which might have been struck against him on that account. See Barr v. Barr’s administrator, 2 H. & M. 26; and Moore’s executrix v. Ferguson, 2 Munford, 421. Of course, if the lots remaining unsold were insignificant in value, (which probably was the case,) the greater part of the claim of the plaintiffs might be considered as due from himself personally. His agreement, then, was, in a great measure, not to make good, out of his own estate, a deficiency of assets, but to pay his own debt to the estate of his testator. — Note in Original Edition.
    
   Saturday, Nov. 2d, 1811, the president pronounced the opinion of the Court that the decree be affirmed. Afterwards, viz. December 20th, the cause was reconsidered on Botts’ motion, and argued by him and Williams; but on Wednesday, the 19th of February, 1812, the decree was again affirmed.  