Snively v. Beavans

Tuck, J., delivered the opinion of the court. Robert W. Watkins died in the year 1845, leaving a ²²⁰ widow and two sons. The appellant and Greenhury M. Watkins, obtained letters testamentary on his estate. Ellen, his widow, died in 1846; Thomas, one of the sons, in 1847 ; and Edgar, the other, in 1849; both of them unmarried, without issue, and under the age of twenty-one.

The appellant took out administration on the estates of Ellen and Thomas; and James and Thomas Beavans, two of the appellees, were appointed administrators on the estate of Edgar. The administrators of Edgar, and the brothers and sisters of Ellen filed their petition against the appellant, as administrator of Ellen, for an account, and praying that he might be required to charge himself with certain property, as part of her estate; the petition, answer and exhibits, present the questions on which we are called to pass our opinion in reviewing this pro forma order of the orphans court. The order requires the appellant to charge himself with one-third of the real and personal estate of Robert W. Watkins, exclusive of his claims against the canal company, and Subject to a deduction for rent of the land during the time it was in her possession. The administrator of Ellen Watkins had no concern with the real estate.

In this respect, therefore, the order is erroneous; and also in charging him with one-third of the personal estate of R. W. Watkins. His duty was to administer the assetts of Ellen Watkins ; that is to say, all her personal estate at the time 'of her death. According to this order, he might be charged with one-third of the estate of her late husband, although she may have received and disposed of the same in her lifetime. The order should have confined the account to the personal estate of Ellen.

It is the duty of an administrator to make return to the orphans court of all the personal property of the deceased. Mrs. Watkins was entitled, under the will of her husband, to one-third of his claims against the canal company; to a watch; to a legacy of two hundred dollars ; and to another of one thousand dollars, upon the contingency therein mentioned. The petition seeks to charge the administrator with ²²¹ these items. It; is no answer to say (as to the canal bonds,) that they have never been sold by order of the orphans court.

The will does not provide that they shall be sold, but that they shall not he sold belovj par, except by the order of the court. The appellant might have applied to the court to have these bonds sold or divided, so as to have obtained the proportion coming to his intestate. It may be that her distributees prefer to have them divided and not sold. The will directs that when sold the proceeds shall be divided between the wife and sons.

But they may he sold at any time by direction of the court; and as the death of these parties has, perhaps, caused a greater necessity for a sale, the court would no doubt exercise the discretion reposed in them by the will: or divide the bonds specifically among the parties interested ; and they could then be sold if deemed expedient, as part of the estates of Ellen, Thomas and Edgar. There is nothing in the record to exempt the appellant from the legacy of $200, and the value of the watch. The latter had been delivered to Mrs. Watkins, though she had not received the former. It appears by the account and distribution of R. W. Watkin’s estate, that it is sufficient for the payment of debts and legacies.

The answer states that “the watch was delivered to the guardian of the two sons, not being a proper subject of sale; and that the $200, were left in R. W. Watkin’s estate; it making no difference to the sons whether they received the same under the father or mother.” The watch of a deceased person is made assetts by the act of 1830, chapter 17. The delivery of it to the guardian, discharges the administrator pro tanto, but still he must bring it into the estate. It may make no difference to the parties interested, how they receive the benefit of these legacies, but the law prescribes the channel through which the title must pass; and the distributees may insist on having the estate settled according to its requirements. If necessary, the accounts in R. W. Watkin’s estate can be corrected so as to ascertain the proportions of each person claiming under his will. ²²² The legacy of $1000, presents a question of right, in which Greenbury M. Watkins is concerned; and although he is not a party to these proceedings, we must express our opinion upon the clause of the will in relation to it, to ascertain whether the appellant has any interest in this amount or not.

The will gave to Mrs. Watkins all the land he purchased of the canal company, for her life, and at her death to go to the two sons. In the event of the sons’ death, without issue, before their mother, she was to have the power of disposing of all she took under the will: and the will then says, “I will and devise, in the event of the death of my sons Thomas and Edgar, before they are twenty-one years of age, that my brother Greenbury M. Watkins, shall have their whole estate, by paying to my wife Ellen, one thousand dollars.” It is well settled, that an executory interest of this kind is transmissible, and will go to the representative of the legatee, if he dies before the contingency happens. 2 Fearne on Rem., 529. It is a contingent interest which vests in right, though not in possession. Barnes vs. Allen, 1 Bro.

C. C., 181. 1 Roper on Legacies, 401, 402. But the appellant insists that this is of that class of bequests which are considered personal to the legatee, and therefore determine with his life ; and that it merged in the real estate for the benefit of the devisee, Mrs. Watkins having died in the lifetime of the sons. The law is said to favor the vesting of legacies, and hence to defeat a bequest of this kind, it