#### JAMES R. PHILLIPS & OTHERS *vs.*LOT S. HUMPHREY & AL.

A testator bequeathed and devised to each of his five children a large amount of personal and real estate “ subject to the payment ®f one hundred dollars, each to A. B., when she should arrive at the age of eighteen. *Held,*that the duty of paying these sums of one hundred dollars to A. B. was not imposed on the executor, but was a trust to be performed by the children respectively:

When C. D. purchased some of the land and jnegroes so bequeathed and with notice, he is liable, in default of the legatees and devisees, to pay to A. B. the proportion of her legacy which the legatees or devisees, from whom, he purchased, were bound to contribute respectively, the legacy to A. B. being a lien on such property.

Cause removed by consent from the Court of Equity of Onslow, at the Spring Terr». 1851.

*207The facts were as follow: Lot Humphrey by his last will and testament devised and bequeathed to each of his five children a large amount of real and personal estate, and in each clause of devise and bequest were contained the following words, “ subject to the performance and payment of one hundred dollars to the direction of the subsequent part of this will.” In a subsequent clause of his will he directs as follow: “ I will that my executors apply . one hundred dollars to the schooling and support of Juliann Lit-tleton. I now will and direct my five children as herein-before reserved and provided at the arrival of the said Juli-ann to the age of eighteen years, that the first four named children pay and deliver over unto her one hundred dollars cash as her legacy herein by me provided and willed’, and that the other (naming her) at her own arrival at twenty-one years of age, pay and deliver over to said Juliann one hundred dollars as part of her legacy as before provided as aforementioned.” The executors paid over to Juliann the hundred dollars- directed to be paid by them for her schooling &c., and delivered to the legatees their respective’legacies.

William Humphrey, one of the defendants, pu: chased from some of the children parts of the property so devised and bequeathed, with full knowledge of the directions contained in the Will.

The prayer of the Bill, which was filed by Juliann, was for a recovery from the children of her legacy; and, in case of their default, from the defendant, William Humphrey.

*J.*W. *Bryan,*for the plaintiff,

submitted the following argument:

1. In the cáse of debts and legacies charged upon lands, it seems that no rule of construction has been adopted in the brie case, which does not apply to the other, and that *208the real estate lias been charged with *legacies*by words not stronger than those used in relation to debts. *Clowdsley*v *Pelham,*1 Vern. 4LÍ, *Alcock*v *Spanhaw,*2 Vern. 228. The legacy to the plaintiil' is a charge upon the estate given to the defendants. . *Smith v Wiseman,*6 Ire. Eq. 540, *Glenn*v *Fisher,*0 Johns. O. R., 34, and the plaintiffs are entitled to interest thereon, from the time the legacy became payable without a demand, &c.

2. William Humphrey was both *executor and purchaser*of the estate given under the will of the testator ; he had therefore, express notice of the charge and incumbrance upon the estate so purchased by him. He who purchases a title under a will by which a trust is created, and has notice of the will must, at his peril, take notice of the operation and construction of the law upon - it. *Bovey*v *Smith,*1 Vern. 84, 144, reversed in Ho. of Lords, S. C. 2 Chan. Gas. 125, *Moore*v Bennett, 2 Chan. Cas. 246, 2 l’owel on Mortgages, 505, *Thomson*v *Blair,*3 Murph. R. 591.

By notice of a deed a purchaser will not only be deemed to have notice of its contents, but also of the performance or non performance of the stipulations and agreements contained in that deed ; for, having notice of the covenants, he should enquire whether they have been satisfied, or .remain to be executed. Thus, no claim can be maintained by a husband under his marriage agreement, while the terms on his part are not fulfilled; *Mitford*v *Mitford.*9 Ves, 87. And, therefore, a purchaser from him of the subject which was settled on the part of the wife, with notice of the deed, will be bound by the- same Equity as the husband was subject to. *Harvey*v *Ashley,*2 Sch. and Lef. 328, cited in *Hamilton*v Royse, &c., *Howleti v Thompson,*1 Ire. Eq. R. 369, *Christmas*v *Mitchell,*3 Ire. Eq. 535.

3. The voluntary conveyance of the’lestator to bis children, admitting the same to be operative, cannot help them, or the defendant, Humphrey. They have made their elec-*209lion to take under the will, and Humphrey is bound thereby and cannot be permitted to claim under the will without, giving full effect to it, in every respect, so .far as they are concerned; *2*Roper on Legacies, 378, *2*Schoale and Lel'roy 266, *Noys*v *Mordant, 2*Yern. 581, 9 Yes. 516, 10 lb. 609, *Streatfield*v *Streatfield,*1 Swan. 436, 447. No man, says Ch. Baron Eyre, shall be allowed to disappoint a will, under which he takes a benefit; *Blake*v *Bunbury,*Yesey, Jr., 523.

4. As against the defendants, the personal estate is not the primary fund for the payment of these legacies, for the *whole estate*given to these defendants is charged with these legacies, and the plaintiffs are not compelled to rely upon one fund alone for the payment of the same, or the adjustment of the different funds liable for their satisfaction. The real and personal estate is an entire fund,, and the law does not separate the same; *Atkins*v *Kron, 2*Ire. Eq< 66„ lb. 5 Ire Eq. 216.

Pearson, J.

It is admitted, that the sum of $100, which the testator directed his executor to pay to the plaintiff, Juliann, has been paid. This sum, therefore, is out of the case.

The defendants Lot S. Humphrey, Penn and his wife Eldah, Jacob Doty and his wife Minerva, Samuel Doty and his wife Susan, and William Pollock and wife Olive, are respectively liable and must be decreed to pay to the plaintiffs the sum of $100 each, and the four first named are to pay interest on the said $100, from the time that the plaintiff, Juliann, arrived at the age of eighteen years. The defendants Pollock and wife must pay interest upon the 'said $100 from the time the said Olive arrived at the age of twenty one years.

The next question is, as to the secondary liability, in the event that the amount cannot be made out of the parties above named*

*210*First:*It was insisted, that the defendant William Humphrey was liable, because it was his duty not to pay over the legacies, until the said sums of $ 100 were paid by the legatees respectively. We do not think this duty was imposed on him by the will. The testator gave' the several legacies to his children and imposed *on them*the trust or charge of paying to the plaintiff, Juliann, the said sum of $100 each, when she arrived at the age ot eighteen years* with the exception of Olive, who was to pay the $100 charged on her legacy, when she arrived at the age of twenty one. The only duty imposed on the executor in this be. half was to pay the $100, which, it is admitted, he has paid.

*Second:*It was insisted, that the defendant William Humphrey washable, because he had purchased *with notice*some of the negroes and land of the legatees and devisees, charged with the trust of paying the $100. No question can be made as to his having notice. As to the *$100 and*interest payable by Jacob Doty and wile Minerva, he is .clearly liable. He admits he has a contract for the land devised to the said Minerva; and Owen Huggins proves, that he purchasedfrom Jacob Doty and'wife two of the negroesj which they took under the will; and the $100 w,as a ■charge upon the land and negroes. As to the $100 and interest payable by Lott S, Humphrey, this is a- trust and charge' upon all the land, which the said Lott S. took under the will of his father, and which he conveyed to the defendant Williams. ' But in 1820, Lott Humphrey; Sr., made: a deed of gift of certain land to the said Lott S. By his will in 1823, he confirms this gift, subject to the charge, and as it appears from the face 'of the will, devised to him certain other land acquired after the making of the deed of gift. : If this land, acquired after the date of the deed of gift, 1st January 1820, is of value sufficient to pay the $100 and interest, fh!d defendant William- Humphrey, to whom-it has been transferred, is liable for the amount; and. .the enquiry. *211whether he is chargeable by reason of the land contained in the deed of gift of 1st of January 1820, will be unnecessary.

The'canse upon this point will, therefore, be reserved for further directions; and there must be an enquiry as to the value of the land devised, which is not included in the deed, of 1st of January 1820.

Per Curiam. Decree accordingly.