Luckenbach's Estate

Citations

• 170 Pa. 586
• 37 W.N.C. 146
• 33 A. 121
• 1895 Pa. LEXIS 1439

Syllabus

<p>Executors and administrators — Legacies charged on land — Sale—Act of February 24,1834.</p> <p>An executor has nothing to do with legacies expressly charged on land, either primarily, or as part of the residuary estate of testator, and such legacies can only be enforced in the orphans’ court by the legatee.</p> <p>Testator gave a dwelling house to his wife for life, but directed that if it should prove that she should find it necessary or more convenient to make sale thereof, for her maintenance and well-keeping, his executor should sell the house and invest the proceeds, the interest of which, and the capital if necessary, to be used for the maintenance of the widow, and whatever should remain of his estate after the death of the widow, to be left to his three children, share and share alike. After testator’s death his son moved into the house, and the widow lived with him, being supported by the son. Several years after testator’s death a contract was entered into between the son and his mother by which she agreed to pay him a certain amount per week from the death of her husband for maintenance, and to make no charge for the rent of the property. Three years after this she gave her son an order on the executor of her husband to sell the property, which order she afterwards revoked. The executor proceeded to make sale, but his attempt to sell was resisted by the other children, and pending the litigation which ensued the mother died. Subsequently the son recovered a judgment against his mother’s administrator for the amount due him for her support. On this judgment he issued attachment execution against the administrator of his mother and also against the executor of his father and summoned them as garnishees. The latter made no defense, and judgment was taken against him. The son then presented a petition to the orphans’ court averring his substitution to the rights of his mother as legatee, and praying for a sale of the homestead property to satisfy his judgm