HELLMAN for the use of MILTENBERGER Trustee of HELLMAN against HELLMAN and Others, 4 Rawle 440

The opinion of the Court was delivered by Kennedy J. The first error in this case is an exception to the opinion of the court in which it was tried, admitting the defendants to read in evidence to the jury a certified copy from the recorder of the county, of a release purporting to have been executed and given by John Heilman, the plaintiff, to Abraham Heilman, one of the defendants, for the legacy, to recover a part of which this suit was brought.

The release of which the certified copy was given in evidence, appearing from the face of the copy not to “ have been executed before at least two competent subscribing witnesses,” is clearly not within the provisions of the act of assembly of the fifteenth of April, 1828, and therefore the certified copy of it from the recorder of the county was not admissible in evidence under that act. But it has been contended that it is embraced by the previous acts of assembly, providing for the recording of deeds and conveyances, or writings made of and concerning lands lying within the state.

The act of 1715, which is the first on the subject, declares that “ all bargains and sales, deeds and conveyances of lands, tenements and hereditaments, in this province may be recorded,” &c. after having been acknowledged or proved in the manner therein prescribed. Theact of 1775, directs the recording of “ all deeds and conveyances, which from and after the publication thereof shall be made and executed within this province of or concerning any lands, tenements or hereditaments in this province, or w'hereby the same may be any way affected in law or equity." And by the sixth

section of this act, the recorder is directed to make an entry in a book which he is required to keep for that purpose, “of every deed or writing brought into his office to be recorded,” showing here by the use of the term “ writing,” as I apprehend, that it was not intended to confine or restrict the meaning of the term “ conveyances” used in the first section, which 1 have recited in part, to deeds, so that conveyances, although not made under the hands and seals of the parties respectively executing the same, “ of or concerning any lands, &c. or whereby the same may be any way affected in law or equity,” may be recorded after having been proved or acknowledged in the manner prescribed by any of the various acts providing therefor, and copies thereof certified under the seal of the recorder’s office, according to the fifth

section of the act of 1715, “ shall be allowed in all courts where produced, and are thereby declared and enacted to be as good evidence, and as valid and effectual in law as the original,” &c. Besides it is the more reasonable to give this construction to this act, making it embrace writings not under seal as well as those that are; for only three years before the legislature passed the act against frauds and perjuries, which makes a writing signed by the party though not under his seal, sufficient to pass his interest in lands.

From these acts of the legislature taken collectively, I think it is pretty evident that the “ deeds and conveyances, or writings” therein mentioned and authorised to be recorded, must be understood to mean such as pass or create an interest or right of some kind in land, unless indeed it be mortgages, which are expressly mentioned in other parts of the act of 1715. But a release or an assignment of a mortgage I do not consider as embraced.

This presents then the question, is a release of a pecuniary legacy charged upon land, such a deed, conveyance or writing as passes or creates any right or interest in or to the land upon which it is charged 1 It does not consist of land, nor call for it; it is a certain amount of money, and cannot without consent or agreement be paid or satisfied in any thing but money. It is to be sure charged upon land in this case, which was devised by the testator to Abraham Heilman, one of the defendants, whom he directed to pay the legacy in question. It is therefore only at most a lien upon the lands.

Now a lien even upon personal property is said to be neither a jus ad rem nor jus in re although it gives the party a right of retaining the goods until his demand shall be paid. Meany v. Head, 1 Mason’s Cir. Court Rep. 319. If this proposition be true in respect to goods, as no doubt it is, its truth as to lands is still much more apparent, where it does not even give a right to hold or retain the possession of them.

No one ever supposed that the release of a judgment which was a lien upon the land of the releasee, or that the receipt -of the plaintiff therein given to the defendant for the payment of it came within either the letter or meaning of our recording acts; yet the legatee has no more right to, or interest in the land upon which his legacy is charged, than the plaintiff in the judgment has to or in the lands of the defendant bound by it.

And that such had ever been the universal understanding of the meaning of the recording acts until the fifteenth of April, 1828, when the legislature passed the act already mentioned, is shown very clearly by the terms of it.

This act directs that “ any release or other instrument in writing being evidence of the payment or satisfaction of any legacy charged upon lands, tenements or hereditaments, and also any release or other instrument in writing, given to any executor, administrator, assignee, trustee or guardian, whether relating to real or personal estate, if such release or other instrument in writing, shall be under seal, and shall have been executed before at least two competent subscribing witnesses, •and shall also have been acknowledged, or the execution thereof proved, in the manner provided by the existing laws for the acknowledgment or proof of the execution of deeds and conveyances of lands, tenements and hereditaments, in order to authorize the same to be recorded, may in case such release or other instrument in writing, relates to real estate, be recorded in the office far recording of deeds in ■the county where such real estate may be situate, &c. and copies or exemplifications of such releases or other instruments in writing under seal, acknowledged or proved and recorded as aforesaid, being examined by the recorder, and certified under the seal of the proper •office, which the recorder or keeper thereof is thereby required to do, shall be allowed, as well in all courts where produced as elsewhere, and are thereby declared and enacted to be as good evidence, and as valid and effectual in law as the original releases, or other instruments in writing under seal would be, if duly proved by the subscribing witnesses thereto, and the same may be shown, pleaded and made use of accordingly.” The passage o'f this act so far as it relates to the releases of legacies charged upon lands, would have been unnecessary had 'they been included in the recording acts passed previously ; and had it been then understood that they were embraced, they would no doubt have been omitted.

Seeing that the copy •of the release given in evidence in this case, is not embraced and provided for by any of our recording acts, it is manifest that it was not admissible in evidence upon any principle of the common law. The court were therefore wrong in receiving it.

The second error is an exception to the opinion of the court, in admitting to be read in evidence the record of a judgment and the proceedings thereon at the suit of ¡¡Vichólas Mütenberger against Abraham Heilman, one of the defendants in this case, and the devisee of the land charged with the legacy in question, showing that the land had been taken in execution and sold as his property by the sheriff, in the month of January, 1823.

That this judgment, and the proceedings under it, including the ■sheriff’s sale of the land charged with the payment of the legacy in 'this case, were admissible and competent evidence, cannot, according to the doctrine laid down and established by this court in Barnet v. Washebaugh, 16 Serg. & Rawle, 410, and M‘Lanahan v. Wyant, 1 Penn. Rep. 95, be doubted; and ought not now to be questioned.

It was evidence of the highest character to show that there had been a judicial sale of the land, and therefore not liable to the objection that it was not the best evidence that the nature of the thing admitted of; and in the next place, according to the cases cited, went to show that the land was thereby discharged of the legacy, and therefore not liable for the payment of it in the hands of J. C. Becker, one of the defendants in this case and the purchaser at the sheriff’s sale; which proves the pertinency and the important bearing of it upon the issue as respected Becker.

It is said that the legacy in this case had not become payable at the time the land was sold by the sheriff, and therefore it was unlike to the cases cited. One hundred dollars however of it, according to the plaintiff’s own statement o,f the case, had become so, and another hundred dollars within a few days of it, so that as to one hundred dollars of the plaintiff’s claim, there is not even the shadow of a difference, which is sufficient to make the evidence competent and admissible.

But it appears to me, that the whole of the legacy charged upon the land in this case, falls within the principle decided in the cases of Barnet v. Washebaugh, and MLanahan v. Wyant. By the terms of the will, I consider it in effect a bequest of two hundred pounds to John Heilman, to be paid to him by Abraham Heilman, the devisee in fee of the land, in instalments of one hundred dollars each; the first instalment to be paid in three years after the death of the testator, and the like sum of one hundred dollars every five years thereafter, until the whole of the two hundred pounds should be paid.

It is not like the case of an annuity, or rent charged upon land during the life of the party, or for any other indefinite period, which has been spoken of, and about which 1 give no opinion. The amount of the bequest in this case is certain, and the times of payment became fixed immediately upon the death of the testator. The amount or value of the legacy was therefore capable of being reduced to a sum certain at any intermediate time before it became payable, that a judicial sale might happen to be made of the land.

It is evident from the face of the will, that the remoteness of the times fixed thereby for the payment of the legacy, was done for the accommodation and benefit of the devisee of the land, who was to pay it; and that it was made a charge upon the land, for the-better security and advantage of the legatee.

I can perceive no essential difference between the legacy charged in this case upon the land, and the case of a judgment bond, had it been given by Abraham Heilman and been entered up against him, so as to become a lien upon his land, by which he had bound himself to pay to John Heilman one hundred dollars on the first of April, 1818, and the further sum of one hundred dollars every five years thereafter, until the full sum of two hundred pounds should be paid.

This latter case must have occurred frequently in principle, and, as I apprehend, in no case of the kind has it ever been determined that the lien of the judgment was not discharged by the judicial sale of the land, although made before the money became payable upon the judgment. Wherever the real amount or value of the lien or charge upon the land is capable of being reduced at any time to a gum certain in money by mere calculation, and is of a pecuniary character, I can perceive no sufficient reason for distinguishing it from the case where it is a sum certain and payable at or before the time of sale.

If it were to be held that lands about to be sold under judicial process, must be sold subject to all liens upon them which have not become payable at or before the sale, it would not only be attended with great inconvenience, but would very much depress the prices that will be given on such sales, which everybody knows will continue to be sufficiently low at the best.

If such a doctrine were to be established, a lien having only a single day to run at the time of the sale, would not be discharged by it; for there is no principle by which we can distinguish between a day and a year, or between one and ten years, in such cases.

The third error is, an exception to the opinion of the court in admitting to be read in evidence the record of a judgment obtained against Abraham Heilman, for two hundred dollars, upon a bond in favour of John Heilman, bearing even date, as appeared from a recital of it in the declaration, with the date of the release, as appeared from the copy thereof given in evidence.

If the original release itself had been produced and given in evidence, after having given evidence of its execution, the record of this judgment might, perhaps, have had some bearing upon the cause, in order to support the release, by showing the consideration given for it, as it appeared to be a transaction of the same date.

Judgment having been rendered, I think the record of it was not only evidence of the fact that the judgment was had, but also of its amount, and of the consideration or cause of action for which it had been rendered, which, as appeared from the declaration which formed a part of the record of the judgment, was a bond. I am therefore not prepared to say, that there was any error in admitting this judgment to be read in evidence to the jury, had the original release been properly given in evidence.

The fourth error is an exception to the answer of the court to the first point submitted by the plaintiff’s counsel, upon which the court was requested to instruct the jury, “ that thelegacy was a charge upon the land, and that the sheriff’s sale, under the conditions on which it was sold, did not divest the lien.” In reply to this the court told the jury, “ that the sheriff’s vendee took the land discharged of the lien of the legacy, unless it was sold subject to the lien ; and in the opinion of the court there was no exception as to this lien in the conditions of sale.” That the court below was right in directing the jury that the sheriff’s sale of the land discharged it from the lien'of the legacy has been already shown in what I have said upon the second error; and as to the conditions upon which sheriffs shall make judicial sales of land, 1 will merely observe, that so far as the rights and interests of the parties concerned therein are connected with the terms and conditions upon which such sales are to be made, and may be affected by them, the law has prescribed the terms and conditions, and it is not in the power of the sheriff, without the consent of all the parties concerned, to alter or change them, to the prejudice of any.

The sheriff of himself has no power or authority to say that the land shall be sold subject to one lien and discharged from another. The rights and preferences of the lien-creditors are all established by law, and each has a right to require payment of his demand from the sheriff, out of the money arising from the sale according to the seniority of his liens. In what I have just said, I do not include mortgage-creditors who are placed on a footing peculiar to themselves by a late act of assembly.

The fifth error, whieh is the only remaining one that has been insisted on, is an exception to the charge of the court to the jury, on the second point submitted by the plaintiff’s counsel; which was, to charge the jury, “ that John Heilman was incompetent to release the legacy given by the will of Christian Heilman, deceased, more especially as Abraham Heilman was one of the executors, and bound to guard the interests of the legatees.” To this the court answered, “ that John Heilman had a right to receive what his father had left to him, and he had a right to discharge his interest under the will in this case, if he was capable of managing his affairs.” From the terms in which this second point is drawn up by the plaintiff’s counsel, it seems to me that the only question involved in it, was one of fact, proper to be left to the jury to be decided by them, that is, whether John Heilman possessed sufficient strength and soundness of mind to enable him to release his right to the legacy; and that the court below might have contented themselves in their answer, with leaving it as such to be settled by the jury.

It is probable, however, that the discussion before the court and jury in regard to this point, took a much wider range than is expressed in it as reduced to writing, for the court in their answer speak of the nature of the legacy, and say that John had a right to receive it, and could therefore release it, if capable of managing his affairs. And in the argument before us, the character of the legacy has been introduced and objections made to John’s being able to release it on account of its peculiar nature.

If the legacy be vested as the court below, from their answer must have considered it, then these objections are clearly groundless. That it is vested, and was so intended by the testator, is sufficiently manifest from the terms and whole tenor of the will itself. It appears from the will, that the testator had six children, who are all mentioned by name in it.

To his son Abraham he gives certain specific articles of his personal estate, and the whole of his real estate, out of which he directs Abraham to pay one thousand pounds, to his other five children, John (the plaintiff), Catharine, Magdalene, Elizabeth and Rachel, in the following manner: “to Catharine one hundred dollars one year after my death ; to Magdalene one hundred dollars two years after my death; to John (the plaintiff) one hundred dollars three years after my death; to Elizabeth one hundred dollars four years after my death ; to Rachel one hundred dollars five years after my death; the above payments to be yearly paid till they amount to one thousand pounds, to be paid the above legatees.” And in a subsequent independent clause, the testator adds, “ It is fuither my will and desire, that my son John (the plaintiff) receive no principal, but receive the interest as it becomes due.” To Abraham it is a specific bequest of certain articles of the testator’s personal estate, and a devise of the whole of his real estate, minus one thousand pounds; and to his other five children it is in effect a pecuniary bequest of two hundred pounds to each of them, to be paid by Abraham, in instalments of one hundred dollars each, commencing with the payments thereof at the times respectively appointed for the payment of the first hundred dollars to each respectively, and to be followed by a payment of one hundred dollars to him or her every five years thereafter, until each shall have received his or her two hundred pounds.

And the subsequent clause in the will, expressing the will and desire of the testator that John should receive no principal, but the interest as it became due, is not to be construed as curtailing or lessening in amount the legacy previously given to John, putting him barely upon an equal footing with his sisters, but as cautionary and directory to Abraham, the devisee, to withhold payment of the principal, under circumstances that would be likely to make it of no benefit to John to receive it.

The plain intent of the testator appears to have been, that Abraham should pay one thousand pounds to his other children, and that each of the latter should receive equal portions of it. Why should we nullify the express previous bequest of the principal to John, by the subsequent clause? For if the testator had not intended that John should have the benefit of the two hundred pounds for himself and his children, as well as each of the daughters, why has he expressly declared that he should, and pointed out so expressly the different periods at which it should be paid?

I do not consider the subsequent clause so completely incompatible with the payment of the principal to John, and his representatives, as to overthrow it, for, generally, where the interest of a legacy is given to or in trust for the legatee, without any qualification, the principal will be considered as bequeathed also. 2 Roper on Leg. 331. In the case of a devise of realty, words of limitation must be added to give more than an estate for life; but in the case of personalty, words of qualification are required to restrain the extent and duration of the interest.

Prima facie, a gift of the produce of a fund, is a gift of that produce in perpetuity ; and is consequently a gift of the fund itself, unless there is something upon the face of the will, to show that such was not the intention. Adamson v. Armitage, 19 Ves. 416.

Now even according to this rule, the payment of the interest to John not being restrained to any particular duration of time by the subsequent clause, amounts to a gift of it in perpetuity, which carries with it a gift of the principal itself I cannot perceive the slightest indication of intention on the part of the testator, from his will, that Abraham should have the principal at John’s death, which would be the inevitable consequence if it be not given by the will to John, It however has been contended, that inasmuch as the legacy here is charged upon land, until the time appointed for the payment of it by the will had arrived, and the legatee was found to be then living, it was not vested but contingent, and uncertain whether it ever would become payable: for if John, the legatee, had died before 1818, the time fixed for the payment of the first hundred dollars of the legacy, the whole of it would have sunk into the land or real estate devised to Abraham for his benefit, and the representatives of John would never have become entitled to receive any part of it; and therefore, at most, it could be released no further by John than it had become payable at the time of giving the release; and as the release alleged to have been given by him appears to have been made in May 1815, and as no part of the legacy became payable till April, 1818, it is no bar to the plaintiff’s recovery.

It is true, (hat a distinction has prevailed between a legacy bequeathed to a legatee that is to be paid out of the personal estate, and one that is charged upon and to be paid out of the real estate, at a future day, to which the payment in either appears to have been postponed on account of the age of the legatee.

The first has been held vested, in conformity to the rule of the civil law, which was adopted by the ecclesiastical courts, where cognizance was first taken of testamentary matters, and for sake of uniformity observed by courts of equity when they came to exercise a concurrent jurisdiction afterwards. 1 Roper on Leg. 376. But the second case never having fallen within ecclesiastical jurisdiction as it concerned the real estate, has been considered conditional or contingent, according to what was' deemed to be the rule of the common law. 1 Roper on Leg. 432, et seq.

If, however, the payment of the legacy-charged upon real estate is not postponed on account of the age of the legatee or child, but in regard to the convenience of the person or circumstances of the estate charged with ■it, the legacy will be considered vested, and not conditional. 1 Roper on Leg. 436, et seq.

Now it is impossible to avoid seeing, that the payment of the legacy in question was postponed exclusively for the convenience and advantage of Abraham, the devisee of the land, who is charged with the payment of it, which gives to it the character of a vested legacy; so that it never can sink into the land, but must be paid, in any event, either to the legatee himself, or to his assignees or representatives in case of his dying before the time appointed for payment. What then was there to prevent his releasing it at any time, if he were of sound mind and discretion ?

It would scarcely seem to comport with free agency, to force a benefit upon a party against his will. There may be vested rights so completely personal as not to be assignable either in law or equity, but still they may be released. Indeed, I apprehend there are few if any vested rights that cannot be released by the person entitled to them.

The circumstance of the release having been given (o Abraham Heilman, who by the will would seem to have been vested with the exercise of some discretion in regard to paying the principal of the legacy to John, but as he might seem to require it, is not of itself sufficient to set aside the release and render it inoperative, though it may be a reason why the jury should be satisfied that it was fairly obtained.

Abraham Heilman was at liberty to pay to John the principal as'well as the interest of his legacy as it became payable ; or before, if he chose, because it was clearly to favour him that the time of payment was postponed.

I have left out of view all that is said in the will of the three hundred pounds, the interest of which is directed to be paid by Abraham to the widow during her widowhood; and have declined to consider it as a part of the one thousand pounds ordered to be paid to the five children; because if such were the intention of the testator, it is not expressed with sufficient clearness to afford any certainty of it; and ought not therefore to be permitted, upon mere conjecture, to interfere with and to change what is clearly expressed.

The judgment is reversed for the first error assigned, and a venire facias de novo awarded.