(Moore for the use of Moore, v. Kerr and others, surviving executors of Kerr, who was surviving executor of Moore.) suits, why the executions should not be set aside, 1st, because interest was charged on a legacy previous to the demand thereof; 2d, because there was a deficiency of assets, and all the legacies ought to abate proportionably. Afterwards, on motion, it was referred to the prothonotary, to ascertain and report what sum of this, and of the other suits brought under the will of James Moore, deceased, was chargeable on the lands in the possession of John and James Moore. A report was filed, finding the sum of £ 86 13s., due in this suit when judgment was entered, and chargeable on the said lands. Satisfaction was afterwards entered by John Moore for the debt, chargeable on the lands of the deceased only. A fi. fa. was issued for the residue which was returned nulla bona, and afterwards an alias and pluries fi. fa. were issued; to the latter the sheriff returned a devastavit. The present suit was in debt for £94 17s., upon the former judgment, in which Nancy Moore, for the use of John Moore, was plaintiff, against Robert Kerr, William Kerr, and John Elder, surviving executors of Robert Kerr, who was surviving executor of James Moore, deceased. The declaration stated the former judgment for £181 10s., "to be levied of the proper goods and chattels which of the said James Moore at the time of his death, in the hands of the said Robert Kerr, as executor as aforesaid to be administered, if he had so much thereof in his hands to be administered, as by the record and proceedings thereof," in the said court might more fully appear, which judgment was in full force, &c. It then recited the fi. fa., and levy on land and inquisition and venditioni, satisfaction as to £86 13s., the fi. fa., alias, and pluries, and returns of nulla bona, and suggested a devastavit by Robert Kerr. The defendants pleaded nul tiel record, and nil debent, and the court gave judgment for the defendants, on the former plea, and filed these reasons for their opinion. 1. The judgment must be presumed to have been taken by consent. For no declaration is filed, and there is no rule of court, or proceeding in law, by which such a judgment could have been adversely obtained. 2. There is an appearance upon the record, and a special condition annexed to the judgment, from which we must infer, that it was a judgment by consent. 3. It is not only a judgment by consent, but it is a judgment on special terms specified on the record. 4. It can have no effect by implication beyond the terms specified by the parties. 5. A judgment de bonis, by the practice in Pennsylvania, means a judgment de bonis testatoris, and is put in contradistinction to a judgment de bonis propiis. 6. In this case, the judgment is to be levied on the lands of the testator to the whole amount, and when execution issued, by (Moore for the use of Moore, v. Kerr and others, surviving executors of Kerr, who was surviving executor of Moore.) consent, a rule was entered to ascertain the real amount, which the plaintiff was to recover out of defendant's lands, and, consequently, the real amount of the plaintiff's judgment, which was liquidated at about £ 86, which sum has been levied and satisfied. 7. There is, therefore, no such judgment as the plaintiff has set out in his declaration, and any judgment he had has been satisfied of record. Dunlop and Crawford, for the plaintiff in error, now insisted that the prior judgment was a general judgment de bonis of the testator, and was properly declared upon as such. The entry that it was to be levied of the lands of the testator did not alter its effect, if the lands proved insufficient, and was, moreover a misprision of the prothonotary, as it did not appear to have been directed or authorised. Chambers and McCullough, contra, argued, that both parties having appeared, it was manifestly a judgment by consent, and was entered on terms, namely, to be levied of the lands of the testator only, and not of his goods. The judgment declared on, therefore, is not the same which appears in the record. The entry of the latter is, to be levied on the lands: but the declaration states a judgment to be levied of the goods. The court below was, for this reason, right in deciding, that there was no such record as that declared upon. The opinion of the court was delivered by GIBSON, J. Where the personal assets are exhausted, the plaintiff, if there be no defence on the merits, may take judgment for the debt or damages to be levied of the decedent's land; and such judgment is therefore no admission of personal assets, but it is on the contrary, so far, an admission that there are none. Here, however, the judgment is said to be de bonis testatoris, with a stipulation by the plaintiff, that he will take execution only against the land, and therefore, that the judgment is conclusive of the existence of personal assets in the hands of the executors. If the judgment should be considered to have been taken by confession, the consequence would not follow, as has just been decided in Hussey v. White. But it stands indifferent whether it be considered as a judgment by confession, or not. The entry is in these words: "Judgment de bonis, execution to be levied of the lands of the decedent, for the sum of, &c." Now the meaning of a judgment de bonis testatoris is, that the plaintiff recover his debt or damages to be levied of the goods and chattels of the testator in the hands of the executor; and it is so expressed where the record is made up at length. The words de bonis, therefore, as they stand in this entry, are insensible and void, the latter clause being explanatory of the first, and demonstrating an intention to sign judgment de terris. They no doubt crept in, under a supposition that as, by the (Moore for the use of Moore v. Kerr and others, surviving executors of Kerr, who was surviving executor of Moore.) act of assembly, lands are in all cases assets for the payment of debts, they are necessarily assets in the hands of the executors; and that those words are requisite to prevent the judgment from operating against him personally: whereas the distinction between assets in the hands of the executor and assets in the hands of the heir, is as distinctly marked here, as it is in England; the only difference being in the manner of getting at them, as by the custom of the state, (and a very bad custom it is,) the action is in all cases, brought against the executor, and the real assets levied in the hands of the heir. Where the executor has pleaded plene administravit, and the plaintiff is satisfied that the personal assets are fully administered, the practice is to confess the matter contained in the plea, and pray judgment of the land; but he could not after such confession pray judgment of both goods and land; and fix the executor with a devastavit by concluding him from contesting the existence of personal assets. The entry here, although informal, is therefore to be taken as a judgment de terris; and the court was right in holding that the plaintiff had failed in producing such a record as is set out in his declaration. Judgment affirmed. [CHAMBERSBURG, OCTOBER 21, 1823.] CRAIGHEAD and Wife against GIVEN administrator cum testamento annexo of SEMPLE. IN ERROR. Testator ordered the residue of his real and personal estate to be sold, and out of the moneys arising therefrom, after the payment of debts and certain legacies, gave legacies to his seven children and grandchildren, and directed that if the money should not be sufficient, to pay the legacies bequeathed, then the last mentioned legacies to his children and grandchildren should abate proportionably, but if it should be more than sufficient, then the residue should be divided amongst the last mentioned legatees proportionably. One of the last mentioned legatees died in the lifetime of the testator; held, that this legacy was lapsed. A case was stated for the opinion of the Court of Common Pleas of Cumberland county, to which this writ of error, was directed, in an action for a distributive share, brought by Thomas Craighead and Martha his wife, against James Given, administrator, cum testamento annexo of Joseph Semple, deceased, which it was agreed should be considered in the nature of a special verdict. The court below entered judgment for the defendant. Joseph Semple, the defendant's testator, died in December 1811, leaving issue, four children, namely, Martha, intermarried with Robert Beatty, David Semple, Joseph Semple, Jane Semple, and two grandchildren, namely, Martha Sterrett and Elizabeth (Craighead and wife v. Given, administrator cum testamento annexo of Semple.) Sterrett, children of John Sterrett and Sarah his wife, which said Sarah died in the life time of her father the testator. By his last will and testament in writing, duly executed, and bearing date the 14th July, 1810, after bequeathing certain legacies he directed as follows. And as touching all the rest, residue, and remainder of my estate, real and personal, of what kind or nature soever the same may be, in the county of Cumberland, or elsewhere, I direct the same to be sold by my executors hereinafter named, in such manner as they may think best, and if practicable within one year after my decease; but if not practicable, then as soon after the expiration of one year as it may be possible to dispose of the same to advantage. For which purpose I do hereby empower my said executors or the survivor of them to sell and dispose of the same, and also to execute all such deed or deeds of conveyance to the purchaser or purchasers of my real estate as may be necessary for securing to him, her or them the right in fee simple. And the money arising from the sale thereof, my just debts, funeral expenses, and the above mentioned legacies being first paid, I give and dispose of the same in the following manner, to wit: To my daughter Martha Beatty 1533 dollars, to David Semple 2044 dollars, to my son Joseph Semple 4089 dollars, to my two daughters Jane and Eliza Semple each 2044 dollars, and to my two grandchildren Martha Sterrett and Elizabeth Sterrett, children of my daughter, the late Sarah Sterrett, deceased, each 311 dollars. If the money arising from the sale of my estate shall not be sufficient to pay the above mentioned legacies, then, and in that case, the deficiency shall be deducted from the legacies bequeathed to Martha Beatty, David Semple, Joseph Semple, Jane Semple, Eliza Semple, and my two grandchildren Martha Sterrett and Eliza Sterrett, each in proportion to their respective legacies; but if the money arising from the sale of my estate shall amount to more than what is sufficient to pay the above mentioned legacies, then and in that case, the residue shall be divided, amongst the said Martha Beatty, David Semple, Joseph Semple, Jane Semple, Elizabeth Semple, and my two grand children Martha Sterrett, - and Eliza Sterrett, in proportion to their respective legacies. And it is also to be understood that the legacy bequeathed to my son David Semple, is in addition to what I have already given him before the first day of June in the year of our Lord, 1810; but whatever I shall have given him after the first day of June, 1810, shall be a set-off in said legacy. And lastly I nominate, constitute, and appoint my son Joseph Semple, and James McCormick, esq. to be my executors. After the date of the will and before the death of the testator, his daughter Eliza Semple, a legatee in the will, died unmarried without issue. After the death of said testator, his grand-daughter, Martha Sterrett, intermarried with Thomas Craighead, who (Craighead and wife v. Given, administrator cum testamento annexo of Semple.) with his wife, were the plaintiffs in this action. Thomas Craighead and Martha his wife had received payment in full of the specific legacy bequeathed to the said Martha. And both the cxecutors named in the said will, had, since the decease of said testator, died intestate, and letters of administration of the goods and chattels of the said testator, which remained unadministered, by the said executors, with a copy of the said will and testament annexed, had been granted in due form of law to the defendant James Given. The question submitted for the opinion of the court, was, whether the legacy of 2044 dollars bequeathed by said testator to his daughter Elizabeth, who died in his life time, lapsed by the death of the said legatee, and since the death of the said testator, remains subject to distribution between the children and grandchildren of the said testator, according to the act of assembly, regulating the distribution of intestate's estates; and also, whether, in case there is a surplus arising from the sale of the testator's real estate, after paying the specific legacies, Elizabeth's share is also lapsed and subject to distribution. If the court shall be of opinion that the said legacy of 2044 dollars, did so lapse, and is subject to distribution as aforesaid, then judgment quod computet to be entered, and auditors to be appointed by the court, to ascertain and report the sum due to the said Thomas Craighead and Martha his wife in right of the said Martha, as one of the heirs and distributees of the said testator, out of the said legacy, or sum of 2044 dollars. But if the court shall be of opinion that the plaintiff's are not so entitled, then judgment to be entered for the defendant. The opinion of the court was delivered by DUNCAN, J. That a legacy lapses by the death of the legatee in the life time of the testator, is a consequence known to few testators. It is an event rarely contemplated by any, and seldom provided for. But even the most explicit declaration that the devise shall not lapse, is not sufficient to prevent it: there must be either survivorship, as in a joint devise, or limitation over. The testator Joseph Semple on the 14th July, 1810, after the bequest of certain legacies, directs, that his estate real and personal should be sold by his executors, and after the payment of his debts and legacies, the moneys arising therefrom should be divided in the following manner, to wit, to his daughter Martha Beatty, 1533 dollars, to David Semple, 2044 dollars, to his son Joseph 4089 dollars, to his two daughters Jane and Eliza, each 2044 dollars, and to his two grand children Martha Sterrett and Eliza Sterrett, children of his daughter Jane, deceased, each 311 dollars. The property being principally real, there would be an uncertainty, whether, on its sale, it would produce the amount he had bequeath.ed, or exceed it, and either the one or the other must have been 2 Y VOL. X. |