#### Joseph Swasey, Administrator, *versus*Josiah Little *et al.*

A testator devised lands to each of his five children, and also bequeathed an an. nuity to his wife for her life in lieu of dower, charging the estatus of each of hh children with the payment of one fifth part of the annuity. After his death the widow accepted the annuity, which was paid to her for some years, and then discontinued until her death. Parcels of the land devised to one of the sons were taken during the widow’s life and sold by order of court to pay the debts of the testator. They were sold subject to the annuity, and the deeds to the purchasers also stated that the lands were “ subject to certain incumbrances charged in the will ” oí the testator. During the widow’s life, several creditors of the same son severally levied executions which they had obtained against him, on the remainder of the lands devised to him ; the appraisers, in estimating their value, taking into consideration the annuity and the amount in arrear. The administrator of the widow brought assumpsit for one fifth of the arrear of the annuity against all the purchasers of the devised land and all the creditors to whom land was set off as above mentioned, having previously made a demand on them while they were tenants of the land. *Held,*that the action for the annuity might be maintained, and that all the defendants were properly joined.

This was *assumpsit*for an annuity given by the will oí Joseph Stanwood to his widow, the plaintiff’s intestate. The case was submitted on the following statement of facts agreed by the parties. Joseph Stanwood, among other things, be queathed to his wife the following legacy, for one fifth part of which this action is brought: — “ Six cords of wood annually, to he hauled up to the door and cut up suitable for a fire ; also 250 dollars in money to be paid her yearly and every year during her natural life, to be paid by my heirs, the first payment to be made at the end of one year next after my decease, and the provision thus made to be in lieu of dower.” The testator also devised to his son Benjamin several parcels of land in Newbury, concluding the devise in these words : — “ All which estate above bequeathed to my said son Benjamin, is charged with and subject to the payment of one fifth part of 250 dollars annually, to be paid to my said wife as hereinafter provided. And it is also my will, if my said wife Sarah shall accept the provision herein above made for her, then and in such case the six cords of wood herein above provided for her annually, shall be a general charge upon my estate; and the severa] legatees above named, to wit, my said sons, Joseph. *303William, and Benjamin, with the children of my said daughter Mary, and the children of my said daughter Sarah, shall be charged with one fifth part each of said expense of providing and cutting the same.”

*Nov. 7th.*

The testator died February 1, 1812. His widow accepted the provisions of the will, and the annuity was paid to her to February 1, 1824. She died October 25, 1827, and the plaintiff, as her administrator, now claims the arrears of the annuity from February 1, 1824, to the time of her death.

In April, 1827, the administrator *de bonis non*with the will annexed of Joseph Stanwood, sold under a license from the Court of Probate a part of the estate given to Benjamin Stan-wood, for the payment of debts, and gave deeds of the lands containing this reservation, £c subject to certain incumbrances as charged in the will of said Joseph, deceased.” The land was advertised as subject to such incumbrances, and notice of the same was also given at the auction, and of the amount in arrear.

Some of the defendants, *viz.*Josiah Little, M. Newell, A. Greenleaf, J. Goodrich and N. Hills, severally purchased parcels of the land at the auction, of which they respectively received deeds as above mentioned.

At the June Term of the Court of Common Pleas, 1827, the other defendants, *viz.*S. Bayley, S. Noyes, B. Noyes and W. Thurlow, severally recovered judgment against Joseph Stanwood and Benjamin Stanwood, and levied their executions on the residue of the real estate devised to Benjamin. The appraisers, in valuing the lands, took into consideration the annuity charged on them by the will, and the amount in arrear.

A demand was made upon the defendants before action brought, and at the same time they were tenants in possession.

The defendants were to be defaulted or the plaintiff to become nonsuit, according to the opinion of the Court.

Moseley, for the plaintiff.

At common law, it is admitted, a suit would not in general lie for a legacy. But there are some exceptions, as where the executor makes an express promise to pay the legacy. And the statute of this State, *3041783, *c. 24,*authorizes a suit at common law and does away aH the difficulty. The provision made for the widow was a legacy. *Farwell*v. *Jacobs, 4*Mass. R. 634 ; *Baker*v. *Dodge, 2*Pick. 619. No express promise is in this State necessary in order to support this action ; and if it were necessary, the defendants’ having purchased the .land subject to the annuity, is equivalent to an express promise. A person to whom a legacy is given out of land may bring an action for it at common law against the terre-tenant. *Ewer*v. *Jones, 2*Ld. Raym. 937 ; *S. C.*6 Mod. 26 *; S. C. 2*Salk. 415. The same principle is fully supported in *Livingston*v. *Livingston,*3 Johns. R. 189 ; *Beecker*v. *Beecker,*7 Johns. R. 99 ; *Van Orden*v. *Van Orden,*10 Johns. R. 30.

*Saltonstall, contra,*

contended that no action could be maintained at law against these defendants ; and that if any action would lie, they ought not to be all joined. The statute of 1783, c. 24, provides only for an action against the executor ; and no action like the present is known to the common law. The cases of *Beecker*v. *Beecker, 7*Johns. R 99, and *Livingston*v. *Livingston,*3 Johns. R. 189, show that such an action cannot be maintained on an implied promise. The only case in which such an action was supported was on an express promise by the devisee. The case in 10 Johns, was against the devisee himself. The case of *Pelletreau*v. Rathbone, 18 Johns. R. 428, is in point to show that this action cannot be brought against the terre-tenants.

The defendants are improperly joined, as they claim under different titles. 1 Chit. PI. 8, 31. The proper remedy is against the executor ; or by bringing all the parties into a court of equity. If a judgment is now recovered against all the defendants, and one is compelled to pay the whole, what remedy has he against the others for a contribution ?

*Moseley,*in reply, observed,

that no action could he brought except against all the defendants jointly, as the plaintiff could not tell for what proportions each would be liable. The liability of the defendants arises from the. operation of law. They are liable as tenants of the lands, the holders of the fund out of which the legacy is to he paid. Their liability is the same, whether one or twenty. This annuity was like a *305covenant running with the land, in which case the assignees in possession are liable.

The opinion of the Court was afterward drawn up by

Wilde J.

By the common law no action could be mainained for a legacy except on an express promise. *Atkins*v. *Hill,*Cowp. 284 ; *Hawkes*v. *Saunders,*ibid. 289; and since the decision in the case of *Deeks*v. *Strutt,*5 T. R. 690, it seems doubtful whether in England an action can be sustained at law, even on an express promise to pay. The usual remedy is either in the ecclesiastical court or in equity. It is true that in the case of *Deeks*v. *Strutt*it was admitted that the executor never made any express promise to pay. but it appeared that he had sufficient assets, and that he had for several years paid the annuity for the arrears of ¿which that action was brought; which circumstances were held in the case of *Van Orden*v. *Van Orden,*10 Johns. R. 30, to be equivalent to an express promise. The case of *Deeks*v. *Strutt*therefore seems to be opposed to the current of the authorities. In the case of *Ewer*v. *Jones,*Lord *Holt*held that a devisee might maintain an action at common law against a terre-tenant for a legacy devised out of the land. But whatever doubts may have existed on this point, they have been removed by the statute of 1783, *c.*24,1 which provides expressly that any person having a legacy given in any last will, may sue for and recover the same at common law. It has been argued that this provision was intended to apply only to actions against executors, but the language of the statute is general, and there is no reason why it should be restrained to actions against executors rather than to actions against devisees. The only question is, whether the legacy is due ; for if it is, it may be recovered in an action at the common law by the express words of the statute.2

That the legacy in the present case is due, appears from .he will, which charges the land now in the possession of *306the defendants with the payment of the legacy, and from the circumstance that the defendants purchased the land subject to charge. So that this action may be well maintained, orovided the defendants are liable in a joint action.

The general doctrine is, that where lands are charged, the tenants of the lands are jointly liable. If there is a cove • nant running with the land, the heirs and devisees of the covenantor are jointly liable to an action for a breach of the covenant committed in their own time. Chit. PI. 39, 40. So if any one acknowledges a recognizance, or suffers judgment to go against him, and afterwards dies, *scire facias*shall go against his heir and the tenants of the lands, and in such case the heir is only liable as he is tenant of the land descended to him from bis ancestor. 2 Wms’s Saund. 7, note 4 ; *Panton*v. Hall, 2 Salk. 598 ; *Proctor*v. Johnson, ibid. 600. And all the tenants of the land must be joined in the suit. And the reason is, because all the lands are jointly bound by the judgment or recognizance. The same reason applies to the case under consideration. All the lands in the possession of the defendants were charged with the payment of the annuity bequeathed to the plaintiff’s intestate. And although the defendants are purchasers of portions of the land charged, in severalty, yet all these purchases were made subject to a joint charge on the whole land ; and as the whole land is equally charged, so all the tenants are equally liable, according to their respective portions ; and if one should eventually be compelled to pay the whole, he will be entitled to contribution from the other tenants. And the same principle would apply, if the charge were such as would amount to a condition. No one could save his portion of the estate, without paying the whole annuity or the arrears of it, and his only remedy would be by calling on the other defendants for contribution. According to the agreement of the parties the defendants must be defaulted.

*Judgment for the plaintiff.*

1

 Revised Slat. *c.*66, § 16.

2

 See Chitty on Contr. (3d Am. ed.) 218, note 1; *Chapin*v. *Hastings,*2 Pick. (2nded.) 362, note 1.

In a suit to recover a legacy charged on land, it is not necessary, in order to maintain the action, to prove a demand of the. legacy, nor a promise on the part of the defendant to pay. *Pickering*v *Pickering,*6 N. Hampsh. R. 120.