Montgomery against Cook, 6 Watts 238

The opinion of the Court was delivered by Kennedy, J. The first point made by the plaintiffs in error, who were the defendants below, and submitted by their counsel to the court for their advice and direction thereon to the jury, we think was rightly answered; Cook and wife being still alive, the suit could only be maintained in their names; and notwithstanding it was stated on the record to have been brought for the use of Alexander M’Elroy, it is clear, that under the state of the pleadings in the cause, it was unnecessary to prove that he had any interest in, or claim to the subject matter in controversy.

It was all sufficient to show that Cook and wife had a good cause of action, and that they were entitled to. recover. In the answer, however, of the court, to the second point, submitted on the part of the plaintiffs in error, we think there is error. According to the tenor of the will, we are inclined to the opinion that the testator only intended to charge his. daughters, Elizabeth and Rachael, severally, with their respective proportions of the 800 dollars, which he directed they should pay to their sister, Sarah, one of the plaintiffs below.

By that part of the will, out of which the claim arises here, the testator devises one undivided third part of the remainder of a plantation, therein previously described, and in part disposed of, to his daughter Sarah, then intermarried with Thomas Cook, the other plaintiff below, in fee; but in case she should have no issue living at the death of the testator, he then gives the said undivided third part of the said remainder of the said plantation to her two sisters, the said Elizabeth, then intermarried with James Montgomery, and the said Rachael, then intermarried with David Greer, “ they paying to her, the said Sarah, in lieu thereof, the sum of 800 dollars, equally between them, the said Elizabeth and the said Rachael, only that the said Rachael shall pay of this sum of 800 dollars, the amount of a note, she holds on me, (amounting as is said, to 163 dollars, or thereabouts,) more than her sister, the said Elizabeth, and that the said 800 dollars shall be paid by them in four equal payments, of 200 dollars each, to the said Sarah; each of which payments, of 200 dollars, to be made every eighteen months; and the first payment shall be made one year after my decease.” Sarah having no issue at the death of the testator, Elizabeth and Rachael, by their respective husbands, thereupon took possession of the third part of the remainder of the plantation, under the will.

Rachael and her husband, David Greer, afterwards, sold and conveyed then interest and estate therein, to David Brandt, against whom this action was instituted, in the court below, conjointly with Elizabeth and her husband, James Montgomery, by Sarah and her husband, to recover 400 dollars, of the 800 dollars, being the second and third instalments thereof.

Now it is clear, from the will, that the testator did not intend that the 800 dollars should be wholly paid by either Elizabeth or Rachael; nor yet by them either jointly or severally in equal portions; for he has expressly directed, that Rachael shall pay the amount of a note she held against him, that is, 163 dollars more than Elizabeth; thus making Elizabeth’s proportion of each instalment, 79 dollars 374 cents, and Rachael’s 120 dollars 624 cents.

But it is argued that the whole 800 dollars are charged by the testator, against them jointly, according to the express terms of the will, which are, “that the said 800 dollars shall be paid by them in four equal payments, of 200 dollars each, to the said Sarah.” And it is contended, that the previous clause, “ they paying to her, the said Sarah, in lieu thereof, the sum of 800 dollars, equally, between them, the said Elizabeth and the said Rachael, only that the said Rachael shall pay of this sum of 800 dollars, the amount of a note, she holds on me, more than her sister Elizabeth,” was introduced, merely to establish the proportion that each should contribute, when they should come to settle and adjust the payment of the whole sum between themselves, and not to limit and apportion the sum that Sarah should have a right to demand from each of them.

It is material here, to know and bear in mind, that Elizabeth and Rachael took, if not by the terms of the will itself, at least by the act of assembly, of 1812,“ concerning joint tenancy,” a tenancy in common in the third of the remainder of the plantation devised to them, upon which the 800 dollars were to be paid. Each acquired, thereby, a separate estate of freehold in the land, for which Rachael was to pay 163 dollars more than Elizabeth.

Now, if the testator intended to charge Elizabeth and Rachael, jointly, to Sarah, with the whole of the 800 dollars, and to make the interest of each in the land liable, not only for her proportion thereof, but for the whole amount, to Sarah, some reasonable motive for doing so ought to be discoverable. He, no doubt, intended that Sarah should be paid the 800 dollars, at all events; and that it should be made perfectly secure to her. But was it necessary, in order to effect this, that the testator should charge the estate of each of the devisees in the land with the whole amount.

Had the right of survivorship existed between them, there might then have been some reason for doing so; but as this was and could not be the case,' it can and is not pretended, that the separate estate or interest of each in the land, was not an ample security for the payment of her proportion of the 800 dollars, in any event that could occur. Why, then, should the testator embarrass or incumber Elizabeth with the payment of Rachael’s proportion of the whole sum of money, which exceeded, by 163 dollars, what he required her to pay for her interest in the land?

Or rvhy put it in the power of Sarah or her husband, unnecessarily to sell and sacrifice Elizabeth’s interest in the land, on account of the delinquency of Rachael or her husband, while Rachael’s estate remained amply sufficient to satisfy and pay her portion of the money.

To suppose that the testator intended thus to place Elizabeth at the mercy of Sarah or her husband, without the least apparent reason for it, would seem to be contrary to those feelings of equal kindness and favour, which parents generally entertain for their children and totally incompatible with those discovered by the testator in this respect, throughout the rvhole of his will.

He knew his daughters were all married, and that though they would never be likely to act either unkindly or unfairly towards each other, yet he most probably had seen enough of the world, to know that it might not always be the case with their husbands, who were to become the masters of their rights, and to have the charge and management of their estates.

It would, therefore, seem to be unreasonable to give a construction to the will that would render Elizabeth and Rachael, or their respective estates liable to pay money for each other, that might again produce suits between them, when he had given to each a fund much more than sufficient to enable her to pay all that he required of her, unless the will were couched in such terms as to leave no doubt upon the mind, but that such was the real intention of the testator.

We, however, think that a different intention maybe very fairly collected from the face of the will; and that the testator thereby intended to make Elizabeth and Rachael, each, liable only to pay her proportion of the 800 dollars, and that their respective interests in the land devised to them should be bound for that and no more. If this be not the true construction of the will, then it may be a question, whether Elizabeth could have elected to take her interest in the land, under the will, without the consent of Rachael, who might have refused to join in taking it.

And is it not certain that Elizabeth, at most, could only in such case, have taken and held her interest, by paying the whole amount of the 800 dollars; without having it in her power to have contribution from Rachael? It is very difficult to believe that this could have been the design of the testator.

So far also as the policy of the law is concerned here, it would seem to be in favour of the construction, which we think ought to be given to the bequest in question; as it will leave each liable only for the payment of her own proportion, without jeoparding or prejudicing the rights of Sarah, in the least degree, and prevent circuity of action, which, under a different construction, might become necessary, in order to obtain contribution by one, who had been compelled to pay more than her due proportion from the other.

This suit, then being brought against Elizabeth and her husband, jointly, with David Brandt, the alienee of Rachael and her husband, cannot be sustained. Judgment reversed.