#### *Thomas &c. vs. Kelsoe.*

Chancery.

Case 106.

Error to the Montgomery Circuit; S. W. Robbins, Judge.

*Assignments. Legacies charged on land. Choses in action of jemes covert. Parties in chancery. Assignment of*error. *Writs of error.*

Will of Benjamin Thomas.

July 2.

Judge Mills

delivered the Opinion of the Court.

Benjamin Thomas departed this life, leaving his widow and eight children, to whom he devised a considerable estate, real and personal, and directed what lands each should have; or how each one’s share was to be laid off. Each child was to receive his or her share at the age of twenty-one years, except his son Marcus, who was to have his *522share immediately *after*the death of the testator. With regard to him, the will contains the following clause.

Clause in relation to Marcus phomas.

'Directions in the will for ■the division •and conveyance of the land-.

Land devised to Marcus.

Writing, given by Hugh-art, husband of one of the devisees, to Kelsoe.

*Kelsoe’a bill*against Hughart and wife and Thomas,

> “Whereas, my son Marcus, will receive by the appropriations in this will more than an equal division of the estate, it is my will that he shall pay over to the other legatees, as they shall *arviveat*age, two hundred dollars each, and that he give security to be accepted by the executors for the payment of the same, before he receive title to the land devised to him in this will.”

To give each a title to their land, it is directed that a commissioner shall be appointed by the county court, to survey and lay *off*the devise in land *to each*one according to the will, and to convey to each devisee according to law, and that is to vest the title in each child.

The land devised to Marcus, is not described by metes and bounds, but the northwardly half of another tract to be laid off in the most convenient .manner, including the buildings and spring.

Jane S. Thomas, one of said devisees, married Edward Hughart, and arrived at the age of twenty one years. Hughart executed an instrument of writing to John S. Kelsoe, the defendant in error, reciting that he was indebted to Kelsoe, in the sum of two hundred dollars, and that to secure and pay the same, he conveyed and sold and warranted to Kelsoe, the legacy of two hundred dollars secured by the will of her father, to be paid by Marcus Thomas, her brother, and authorized him to receive the same.

Kelsoe filed this bill against Hughart and wife, and Marcus Thomas, for payment of the legacy. He alleges, “that the said will of Benjamin Thomas bequeathed the said Marcus Thomas, large real and personal property, *which h& holds by*devise from said ancestor, largely superior in amount, to said sum of $200 which was to be paid to each of the heirs.” Another part of the bill charges that the said Marcus fails to pay said sum, or any part thereof, or to renounce the provisions of said will.

*523Bill taken for confessed, and decree forKelsoe.

Legacy was charged on ty for its payment, accordrele’ase tiie land,

Construction ®r" bill,

Assignee of b“sban<b bequeathed to his wife before covert, *ty'*

in such cases tbe wife m«st *’,e ® p,arty’. be provided for in the decree.

Assignment of errors.

Writ of error-by two, to a in favor of defendant, *524does not reach a decree for one of plaintiff agaiust the other.

*523The defendants fail to answer, and the bill was taken as confessed, and a decree rendered against Marcus Thomas for the two hundred dollars with interest, payable to Hughart and wife from the tun'e that Mrs. Hughart arrived at age. To reverse this decree, the defendants below have prosecuted their writ of error.

It is contended that the bill is defective in its aliegations, in not shewing that the legacy had become due, from Marcus, by his agreeing topay it and give security accepted by the executors. It is evident ihe testator intended to charge the legacy on the land, and Marcus was precluded from obtaining the land till security was given. After that the land would be released, and he and his securities become personally liable.

The allegations of the bill are general, but still as it is asserted that he *holds*a large real estate by the devise, it must follow that he had done, that which is necessary to enable him to hold it under the will, that is that he had come under the proper undertaking to pay, and is liable thereto.

This was a chose in action and the husband could not assign it at law, but he could transfer it in equity, and having done so, it would enable the pure has-er, by making all the proper parties, *to*come at the legacy in the same manner, and to the same extent, as *the*husband.

But it may be insisted, that as the husband ought pot to obtain ai decree till the interest of the wife was looked into by the chancellor, and a suitable provision made for her, before he reduced her estate to possession, so the assignee irom him. ought to be subject to the same rule.

This would be a valid argument against the decree, if it was assigned for error. But it is not.

It is insisted that the court- erred in decreeing the interest of the legacy to Hughart and wife. If this writ of error had been issued by Thomas against Hughart and wife, to get clear of this decree, the objection would be entitled to consideration. But *this**524is a joint writ of error by Thomas and Hughart and wife against Kelsoe, whose decree is several, and' who only has a decree for the legacy, and none of the interest. In short we perceive no error in the decree of the court below.

*Ja. Trimble*for plaintiffs; *Triplett*for defendant.

Decree is affirmed with costs &c.