Levi Woodbury

“ And if no implied promise could be raised to recover rent, when the occupation is adverse, and no express one is pretended to exist, the executor could not legally set off this claim against their legacies. ”

“ If, then, the Misses Mandeville entered on the premises under color or claim of title, and held possession adversely to their uncle for so long a period, with his knowledge, and without any attempt on his part to eject them, it gives them good right and title under Virginia law, and is a complete bar to a possessory action, although it might not be against a writ of right, founded on the seizin of the appellant's devisor or testator, for in Virginia it has been decided that a devisee, like an heir, may maintain a writ of right. ”

“ The exception, if sustained, might, by a future proceeding on the part of the appellant against the executor's legal representative, tend to defeat, at least in part, the commission allowed Mandeville's executor by the Orphans' Court aforesaid, and which could only have been done, in the first instance, by an appeal, alleging and proving fraud in its procurement. ”

“ Ellen Mandeville, who intermarried with Joseph Smith pending the suit, was a legatee under that will for $3,000. One of the clauses of the will was this. 'If my personal property should not cover the entire amount of legacies I have or may give, my executors will dispose of so much of my real estate as will fully pay them.'
Mandeville, the testator, died in July, 1837. ”

“ In the case of specific legacies, the trouble and risk are as great, if not greater, than in moneyed legacies, and it would be difficult to find elementary principles to justify commissions in one case, and withhold them in the other. ”

“ As to the seventh and eighth exceptions:--
1. A joint demand cannot be set off against a several demand. 2 Story Eq. Jur., § 1437.
2. Credit for the whole sum is claimed against each legacy.
3. It does not appear that any such sum is due as claimed, no tenancy being proved, and, on the contrary, an adverse occupation being expressly reported.
Mr. Justice WOODBURY delivered the opinion of the court.
The original proceeding in this case was a bill in chancery instituted in September, 1839, in the Circuit Court for the District of Columbia, sitting for the County of Alexandria. ”

“ It does not appear ever to have been returned and filed in court, nor to have been confirmed or adopted by the court or parties. No judgment was entered on it. It does not appear even to have been read before the jury. ”

“ The realty as well as personalty being liable, under the will and law, to both debts and legacies, it is immaterial to the residuary devisee and legatee to which object the personalty is applied. Tayloe v. Thomson, 5 Pet., 367; 5 Geo. II., ch. 7 (1732) ; Silk v. Prime, 1 Dick., 384; 1 Bro. C. C., 138, n; 2 Stat. at L., 103, 104, §§ 1-756, § 4.
2. Had the executor sold the specific legacy for payment of debts, the legatee would have been substituted to the creditor's rights against the realty ”

“ West, being residuary legatee, took a leading part in conducting the defence in the Circuit Court, and made the appeal to this court. Various answers were put in by the respective respondents, several depositions filed, and some documentary evidence. From these it appears, that proceedings had for some time been instituted in the Orphans' Court for the County of Alexandria, for the purpose of settling the estate of Joseph Mandeville. Most of the debts had been adjusted, and some of the legacies ”

“ The appellant was made a party defendant on the 8th of June, 1842, and although Commissioner Eaches made his report on the 31st of May, 1839, the appellant never filed exceptions thereto until the 3d of October, 1846, long after the death of Mandeville's executor; and having so long failed to do so, it is submitted whether the court will now entertain the same. 2 Robinson's Pr., 214, 383; 3 How., 691; and the same remarks apply to Commissioner Green's report.
(Mr. Neale then went into an argument that the statute of limitations did not apply.) ”