Ewell v. McGregor

McSherry, C. J., delivered the opinion of the Court. The bill of complaint in this case was filed to enforce the payment of a legacy bequeathed by a certain Nathaniel M. McGregor to his grandson, Jesse Ewell. McGregor made his will in January, eighteen hundred and sixty-nine and died in the following year. By his will he gave all of his property of every kind and description to his wife during widowhood, with remaining at her death to his children “to be divided into six equal parts or proportions and distributed among six children” who were named “share and share alike with the following exceptions, that is to say: I desire that my executor hereinafter named before making the distribution hereinbefore directed shall pay unto my daughter, Susan E. McGregor, in addition to her said property the sum of six hundred dollars, to be deducted out of the property due my daughter, Mary Eliza, and also four hundred dollars out of the property so due my daughter, Mary Eliza, unto my grandson, Jesse Ewell.” Roderick M. McGregor was appointed executor, but was given no power to sell the real estate and there is no direction that the realty should be sold by any one.

In eighteen hundred and ninety-four the widow of the testator died. Proceedings were subsequently instituted for a partition of the real estate of which the testator had been seized at the time of his death ; commissioners were appointed to make the partition and their report, wherein they awarded a parcel of land designated lot number five to Mary Eliza McGregor, one of the daughters, was finally ratified by the Circuit Court for Prince George’s County. The legacy of four hundred dollars to Jesse Ewell has never been paid, and it is alleged that there is no personal estate of the testator with which to pay it. The bill of complaint charges that in these circumstances the legacy is a ³⁵⁹ charge and lien upon lot number five so awarded to Mary Eliza as her interest in her father’s estate; and the relief prayed against the executor and Mary Eliza McGregor is a sale of lot number five under a decree, so that out of the proceeds the legacy and accrued interest thereon may be paid.

To this bill Mary Eliza McGregor demurred. The Court below sustained the demurrer and dismissed the bill. From that order the pending appeal was taken. The single question is this: Is the legacy of four hundred ■dollars a charge or lien upon the share of the testator’s estate devised to his daughter Mary Eliza, as that share has been partitioned and awarded to her ?

If the legácy was not made by the will a charge or lien upon the real estate of the testator* then no part of that real estate can be sold for its payment, and consequently the portion acquired by the daughter would not be chargeable with it. So the whole controversy resolves itself into the inquiry : Is the legacy a charge upon the real estate devised? The will was made and became operative before the Act of 1894, ch. 438, was adopted. That Act provides that the real estate of a testator, not specifically devised, shall be charged with the payment of pecuniary legacies when. the personal estate is insufficient to satisfy them, unless a contrary intention shall clearly appear.

By the explicit terms of the statute the enactment is not applicable to wills made before it went into effect. It must, therefore, be laid out of view in considering the question now before us. How stood the law when the will