Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1900-01-18

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the answer and there is not the slightest
= proof of It..
The bill cannot be maintained for sew.
r eral reasons:
, |. The complainant has not brought he.
fore the Court the personal representa-.
l ives OF the testator. Whether the Ian
= guagc of the will does or does not impose
: charge upon the realty, II Is very plain
that the personally Is the primary fund
for the payment of legacies and that a
personal representative of the deceased
must be before the Court, 1t Is alloeed
, in the bill that Parse, tho New Jersey
executor, is dead and that Or. Leonard
, Marsh. who proved the will in New York.
Is also dead. This only shows the necos-
sity for the appointment of an admins
traitor with the will annexed, If no ono
has yet been appointed Dodd VS. Lindslev
|, Dick. co. Dodson VS.. Sewers s Dick. AS.
, Z. 1t Is charged in the bill that by the
eject of the rcsduary clause, complain
ants legacy Is chargeabe on tho land
This Is so, if there be no personal estate
ont of which TO pay. The established rule
, Is that personally Is the primary fund
fer the payment of leEacics. The real
estate is not chargoable until the personal
estate is exhausted. In fact the rule goes
further. johnson W. Pouson Stew 800.
There is no evidence that the personal es-
tate is oShlusted. The proof is that IT
amounted 10 $212.A. OF this s52l67 was
used to pay funeral expenses. nursing and
/, the costs of administration in New jersey
what was done with the money which
went to the New York executor who was
also residusry legatee, does not appear:
ne may have used 1t in whole or in part
10 satisfy debts of the estate or he may
have taken it as residuary legatce. 1t
does not appear that the testator died
indebted. lie save no legdcieS except the
500 legacy and complainart's legacy of
SlWC which was substituted for 1t on the
contingency mentioned. He did indeed di-
rect the removal to Har.fo of the re-
mains of two of his brothers from Gree l.
wood cemetery and of a third. who had
resided in Wisconsin, If he could be found I;
but there is not the least evidence of what
this cost. Ot the proof II may be said
as was said in johnson vs.. Poulson, that
IL does not establish satisfactorily the in
suficicncv of the personal estate to pay
the legacy
/ 3. But assuming that by reason of the
exhaustion of the personal assets the
church became entitled to have the leg
acy of $1,000 charged on the land, the
question arises whether the complainant
is not barred by LAPSE of time Twenty
eight years have elapsed between the tes-
tators death and the iiling Of the bill
AS Courts of Equity act in analogy to
the statute Of Linn ta.tions, 1t is settled
law that presumption of payment Of
legacy arises after the expiration Of
twenty years from the time Of the ac-
crual of the !ight to II. Campbell vs..
Graham Russ and NY. 453: Magee VS.
Bradley % All. Rep 1o3; Blue vs.. Everett
ii Dick. ij5. Since the decision of the
case last named, it is at least arguabe
that. as against one who may, like the
defendants In the present case, be said 10
hold adversely the presumption Is conclu-
siNe. II is not necessary however. to
express an opinion on this question as
under less straight rule, the complain
ants claim cannot he sustained The only
reason assigned for taking the case out
of the operation of the rule is that com.
pla'nant was ignorant that the gift had
been made until shortly before the suit
commenced. Now as against bona iide
purchasers for value, so long in possess
sion. without notice that the exccut ors had
not performed their duty ii seems to me
that very satisfactory proof Of ignorance
should be required. The proof stands
thus: Noah Il. Hazen who was treasurer
in 1869. Ephraim Morris who was clerk
and treasurer from 1870 to 1892. and Hor-
ace G. Pease and Samuel f. Pingry. mem
bers of the congregation. testify that they
first heard of the legacy in 1895. Edward
w. Morris, who was its treasurer from
/ lSS9 to 1883, in answer to the question.
when he first learned that the church WAS
beneficiary said that it was four or five
years ago; that he might have heard of
II incidentally at the tire. ON cross en-
ter over there is an impression on my
mind that l might have heard something
about II before-a sort of dim recollec-
ton" iona han Bugbee said that he had
been 'on The committee" (by which | ui-
dcrstand him to mean, the committee Of
the society mentioned in Mr.. Hazen's tea-
tmony, which attended to the temporal
affairs of the church and that he had
hcard, at the time, that Mr.. Marsh had
Wliled so much to the cemetery. and
part for the church" some here about
$1,000 for the whole" Now on this cvi-
dence ii seems to me to be inaccessible 10
assert that it Is satisfactorily proved that
the complainant; corporation had no nc
tice of the legacy 1t IL said that, so long
time having elapsed, it il impossible to
prove ignorance more certainly. i}ut the
impossibility of obtaining satisfac tory
Proof after a lapse of twenty years Was
the main reason for passing the statute
and the main reason why Courts of Equity
act in analogy 20 it. Most Of the gentle
men who testified as above were connect
ed with the Cemetery company. which
had beel organized shortly before MI
Marsh's death and which had perhaps
without legal authority, taken charge of
TIE ground in which the Narsh's family
were buried They all knew of the legacy
of Si00. DR. Leonard Marsh, who lived in
tic same State, had entered into core
spondcnce with them about it, with the
ltSlAt, do II WOuIu SetNh lHdt the CeiNt-
tory company declined to accept it. Be
sides, this, in re-interring The testator
and his brothers in the burying ground,
which was regarded as the church bury
ing ground. DR.. Marsh must have found
II necessary to make one or more visits
to White River Village, and to have con-
versed with the pastor and other members
of tho congregation. 1t is quite within
the bounds of possibility that in the
course of these conversations he may have
spoken of the complainants legacy tol
some of its officers. The testimony of Mr..
BuEbee and OF Mr.. Edward Morris APP
pears to indicate this A. all events there
Is no satisfactory proof that he did not.
think. therefore. that ignorance not be
ing satisfactorily made out, there is no
reason shown for disr, gardng the bar.
If ignorance had been clearly proved,
l should still doubt whether il would avail
as against persons standing in the posi-
ton of defendants These defendants are
neither trustees nor voiunt GERS. nut pur-
Chasers for value. on the assumption of
ignorance, the executors failed in the per-
fcrnance of their duty to complainant,
by failing to notify 1t of its legacy, but
they equally failed in the performance of
their duty to the defendants by failing to
pay compaiuant's legacy when it appears
beyond all controversy that they had
funds to pay the same-funds derived eth
er from the personal estate or from the
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