Secrist against Secrist, 6 Watts 79

The opinion of the Court was delivered by Huston, J. It is of ordinary occurrence that a testator writes a will or directs one to be written, under an idea that, after he is gone, every thing will be done by his executors and devisees in a certain way — and if all was so done by all concerned, no dispute or difficulty would arise in carrying the will into effect. In this case, if John and Solomon had held the mill and farm jointly, until the 3207 pounds 13 shillings and 4 pence, were paid in yearly instalments to the other children, nothing could have been plainer than this will. .

No sooner had the property become disposable by the youngest child arriving of age, than it was appraised and immediately taken, at the amount at which it was appraised, 4810 pounds, by John and Solomon, who at once divided the property, but the division was not into equal parts. The part which John took was valued at 2S00 pounds; the part of Solomon at 2010 pounds — and thus, in paying the 100 pounds per year, John must pay for his proportion about 58 pounds 4 shillings 3 pence, and Solomon about 41 pounds 15 shillings and 9 pence.

Matters stood thus for three years, until the spring of 1812, when three instalments were paid or had become due, and the case does not state whether John had paid up to that time or not. The

article of 1812 seems to be founded on the understanding that Solomon had paid nothing either to the legatees or widow. By the will the interest of one third of the sum of which the property was valued, was to be paid annually to the widow — that is, John would be bound to pay about 56 pounds, and Solomon to pay her about 40 pounds per year.

But as John’s share was valued at 800 pounds more than Solomon’s, of course, to equalise them, the above proportions to be paid by each must be changed, and Solomon would have to pay about 100 dollars towards the 100 pounds annually to the devisees, and about the same sum to the widow. The case stated renders it unnecessary to go more minutely into these calculations, for it finds, “that under the agreement of the 7th of April 1812, John has paid or his estate is liable to pay, 3222 dollars 224 cents, for Solomon Secrist, to the legatees of said will, inclusive of the widow.

This left a balance of 777 dollars 774 cents, of the purchase money, under said agreement of the 7th of April, 1812, to be paid by John Secrist or his estate to Solomon Secrist.” The dispute is, when this 777 dollars 774 cents became, or is to become due and payable to Solomon; and in the argument the claim of the widow and the time of her death, (April 1S23,) have been introduced as affecting the question.

The case states, “soon after the agreement of 1812, John Secrist paid some money to his mother, on account of his interest under the will, but that John got the same money back again, and the said John Secrist has not since paid any money to the said widow on account of her dower or interest, nor have his representatives paid any. The widow died in April 1823, having made a will.

The said widow did not in her lifetime, nor has her executor since her death claimed any thing on account of her interest under said will from John Secrist in his lifetime, nor from his administrator since his death, and no such claim will be made, nor is the estate of John Secrist liable to the estate of the widow for such-claim.” It is evident the demand by the widow or the release or forgiving her demand had a great effect on the interest of John and Solomon. To have paid 96 pounds from 1809 yearly till 1823, the estate would have cost 1300 pounds more than it has now cost.

The more immediate benefit of her forgiving or releasing her claim, was to John, who thus was liable for only 100 pounds each year; but it resulted to the benefit of Solomon also, if she had demanded her money.

The 4000 dollars which John was to pay Solomon would have been diminishing at the rate of about 200 dollars per year, and 2800 of it would have been paid at the widow’s death in 1823; the remaining 1200 would have been all required to pay the legacies to the children, and at 100 dollars per year would have been all exhausted in 1835 — nothing of this 4000 dollars worrld would have been left for Solomon, and he would still be liable for a portion of the legacies until the last payment fell due in 1841 or 2. Solomon has received his full share of the kindness of the mother in renouncing or releasing her claim.

This leaves him entitled to receive his 777 dollars 77 cents, when the legacies are all paid, instead of being liable to contribute to the payment of them after 1835. No time is mentioned in the

article of agreement when this is to be paid, but as the 4000 dollars are to be applied “to pay the parts of the legacies that Solomon is behind, and so on every year as they become due,” the balance will not become due until the last of the legacies is paid or is due, and then the whole balance will be due to Solomon. The last

article is not so full and expressive as it might have been; it directs payments of parts of legacies as they become due, to be paid until the full sum of 4,000 dollars is paid; admitting the sums falling due to the widow are called legacies, still the payments to be made to her would depend on the length of her life, or as in this case, on her kindness to her sons. Solomon, as we have seen, will receive his share of that kindness, but it cannot hasten the time of payment to him, which cannot arrive until the last of the legacies falls due, and a part of it must be applied to pay each instalment as it falls due.

It is possible, the kindness of the mother may have resulted in greater advantage to John or his heirs, than to Solomon; we have no authority to alter the contract of the brothers on that account; perhaps, if we were to attempt it, we might do what she did not intend, what she would not have done; nay, it is possible, her whole benevolence was intended exclusively for John; she may have supposed John would not be able to pay 200 pounds per year, and forgiven her half of it, to enable him to pay 100 pounds yearly to his brothers and sisters, and may not have even foreseen the benefit which has resulted to Solomon.

There is nothing which shows any intention on her part to hasten the time of John’s payment to Solomon, and it must remain as the parties agreed to it. It was understood, that if this court settled the principle on which the claim was to be adjusted, the parties and their counsel would make the calculations; we are of opinion, that the balance' which Solomon will be entitled to, will be due, and all due, when the last payment of the legacies is made, or when it falls due an'd ought to be made. Judgment reversed.