Parker, J.
Whether the defendant is liable, personally, in an action at law, to the plaintiff for the payment of the annuity is the question in this case.
The bequest to. the plaintiff, in the will of her husband, was of such articles of furniture on hand, at the time of his decease, as she might select, not exceeding in value $100; also an annuity of $63, to be paid by his executor thereinafter named. In a second clause of the will the testator devises and bequeathes all the rest, residue and remainder of his estate, real and personal, after the payment of his debts, and funeral expenses, to his son, James W. Cronkhite (the defendant), to have and to hold the same to his heirs and assigns forever, and in the last clause he appoints his son, James W. Cronkhite, executor of the will.
The defendant proved the will and took possession of the property left by the testator, both real and personal. He went on and paid the debts and funeral expenses, and had a settlement as executor before the surrogate, whereby it appeared and was adjudged that the personal estate of the testator was insufficient to re-imburse defendant for the amount paid by him upon such debts and funeral expenses. He had, prior to this settlement, paid plaintiff three annual payments of the annuity bequeathed to her, as they became due. It also appeared that he had sold and conveyed the real estate devised to him.
Hpon the terms of the will, and these facts, the court, at circuit, held the defendant personally liable for the annuity, and directed a verdict against him for the amount of two years annuity unpaid, and the interest thereon.
This holding, I am inclined to think, erroneous. I am, therefore, ■ unable to concur in the opinion of my brother, Joseph Potter, which sustains it.
Ho personal liability arises from the terms of the will, for the gift therein to defendant is not conditioned upon his payment of the annuity, nor is he personally, or as legatee or devisee, directed to [268]*268pay it. True, the provision in the will is, “ the said annuity shall be- paid by my executor hereinafter named,” and in the subsequent 'clause of the will the defendant is appointed executor. This, I think, is not a direction that James W. Cronkhite, the individual, or the residuary devisee and legatee, as such, shall pay it, but rather an indication that the executor, as such, shall pay it out of the personal estate. There is nothing in any of the provisions of the will authorizing the conclusion that the word “ executor” here is merely descriptive of the person intended.
The case is very different from Larkin v. Mann, 53 Barb. 367, where, there being a similar direction, the court say: “It is'very evident from the provisions of the will that he intended to charge the defendants personally, and that the word executors was merely descriptive.” In that case the legacy was expressly charged upon the lands devised to the persons who were also executors. The court say, “the provisions of the will charging the legacy upon the estate is unequivocal. It not only declares the legacy to the defendants to be a lien and charge thereon, but devises the real estate to the defendants, subject to the payment thereof” and this, the court held, relieved the personal estate, from the payment of the legacy, and showed that the direction that it should be paid by the executors, did not mean by them as such — that is, out of the personal estate — and hence, that the term was there merely descriptive of the persons who were to pay it.
In the case at bar the annuity is not charged upon the estate devised to the defendant, nor is there any thing in such devise indicating that this legacy to the plaintiff is payable in any other than in the- ordinary manner. It is a simple devise of all the rest, residue and remainder of testator’s estate, after payment of his debts and funeral expenses, subject to no condition, precedent or subsequent. In this case, then, the acceptance of the estate given to defendant could create no personal charge upon him, as it would have done, if the devise to him had been conditioned upon his payment of the annuity, or if he had been directed personally or as devisee, to pay it. The case of Gridley v. Gridley, 34 N. Y. 130, does not, I think, sustain the ruling in this case, for there the donee of all the testator’s estate was directed to pay all his debts, and the annuity in question. It was held that his acceptance of the gift made him personally liable to pay the annuity. His acceptance of [269]*269the gift was an assumption of the obligation imposed with the gift, and hence he was personally liable.
In this case no such obligation is coupled with the gift, and defendant’s acceptance, therefore, is not an assumption of such obligation.
The cases of McLachlan v. McLachlan, 9 Paige, 534; Van Orden v. Van Orden, 10 Johns. 30; Harris v. Ely, 7 Paige, 421; Spraker v. Van Alstyne, 18 Wend. 200; Larkin v. Mann, supra; Lord v. Lord, 22 Conn. 602; Olmstead v. Brush, 27 id. 530, cited on behalf of plaintiff, all contain the same element of difference from the case at bar, as Gridley v. Gridley, and do not therefore sustain the decision now under review, and I do not find any case where a mere residuary devise of lands has been held to carry with it a charge, even upon the land, much less a personal obligation on the devisee, for the payment of a legacy, upon the failure of the personal property to satisfy. See Myers v. Eddy, 47 Barb. 263.
The acceptance of a devise by the residuary devisee surely cannot raise any implication of a promise to pay a legacy given in a previous clause of the will, unless there is something in the will in the nature of a condition to pay imposed upon such acceptance. ■ Nothing of the kind appears in the will under review, either express or implied.
The position that a promise to pay the annuity may be inferred from the payment for the first three years, upon which the action for the amount in question, falling due in the two succeeding years can be sustained is also, I think, untenable.
The presumption is, not that the defendant paid in consequence of any personal obligation as legatee or devisee, but as executor, and therefore that such payments were made out of assets in his hands as executor.
The cases cited to sustain plaintiff’s position are cases where the part payment was in consequence of a personal liability to pay. Van Orden v. Van Orden, supra, as already stated was, where the defendants were, in consideration of the devise, expressly charged with the payment of the annuity to the plaintiff, and it was held that an acceptance and enjoyment of the estate, and an actual payment of part of the annuity by the devisees, was equivalent to an express promise by them to pay the annuity. So in Gridley v. Gridley, supra, the defendant in consideration of the devise was expressly charged with the payment of the annuity to the plaintiff.
The law upon this point, as stated in the case, is as follows: [270]*270“ When the devisee is personally charged with the payment of the debts and legacies, and takes the whole fund out of which they are to be paid, and his taking is on condition that he pay all the debts and legacies, if he accepts, his liability is absolute.
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Parker, J.
Whether the defendant is liable, personally, in an action at law, to the plaintiff for the payment of the annuity is the question in this case.
The bequest to. the plaintiff, in the will of her husband, was of such articles of furniture on hand, at the time of his decease, as she might select, not exceeding in value $100; also an annuity of $63, to be paid by his executor thereinafter named. In a second clause of the will the testator devises and bequeathes all the rest, residue and remainder of his estate, real and personal, after the payment of his debts, and funeral expenses, to his son, James W. Cronkhite (the defendant), to have and to hold the same to his heirs and assigns forever, and in the last clause he appoints his son, James W. Cronkhite, executor of the will.
The defendant proved the will and took possession of the property left by the testator, both real and personal. He went on and paid the debts and funeral expenses, and had a settlement as executor before the surrogate, whereby it appeared and was adjudged that the personal estate of the testator was insufficient to re-imburse defendant for the amount paid by him upon such debts and funeral expenses. He had, prior to this settlement, paid plaintiff three annual payments of the annuity bequeathed to her, as they became due. It also appeared that he had sold and conveyed the real estate devised to him.
Hpon the terms of the will, and these facts, the court, at circuit, held the defendant personally liable for the annuity, and directed a verdict against him for the amount of two years annuity unpaid, and the interest thereon.
This holding, I am inclined to think, erroneous. I am, therefore, ■ unable to concur in the opinion of my brother, Joseph Potter, which sustains it.
Ho personal liability arises from the terms of the will, for the gift therein to defendant is not conditioned upon his payment of the annuity, nor is he personally, or as legatee or devisee, directed to [268]*268pay it. True, the provision in the will is, “ the said annuity shall be- paid by my executor hereinafter named,” and in the subsequent 'clause of the will the defendant is appointed executor. This, I think, is not a direction that James W. Cronkhite, the individual, or the residuary devisee and legatee, as such, shall pay it, but rather an indication that the executor, as such, shall pay it out of the personal estate. There is nothing in any of the provisions of the will authorizing the conclusion that the word “ executor” here is merely descriptive of the person intended.
The case is very different from Larkin v. Mann, 53 Barb. 367, where, there being a similar direction, the court say: “It is'very evident from the provisions of the will that he intended to charge the defendants personally, and that the word executors was merely descriptive.” In that case the legacy was expressly charged upon the lands devised to the persons who were also executors. The court say, “the provisions of the will charging the legacy upon the estate is unequivocal. It not only declares the legacy to the defendants to be a lien and charge thereon, but devises the real estate to the defendants, subject to the payment thereof” and this, the court held, relieved the personal estate, from the payment of the legacy, and showed that the direction that it should be paid by the executors, did not mean by them as such — that is, out of the personal estate — and hence, that the term was there merely descriptive of the persons who were to pay it.
In the case at bar the annuity is not charged upon the estate devised to the defendant, nor is there any thing in such devise indicating that this legacy to the plaintiff is payable in any other than in the- ordinary manner. It is a simple devise of all the rest, residue and remainder of testator’s estate, after payment of his debts and funeral expenses, subject to no condition, precedent or subsequent. In this case, then, the acceptance of the estate given to defendant could create no personal charge upon him, as it would have done, if the devise to him had been conditioned upon his payment of the annuity, or if he had been directed personally or as devisee, to pay it. The case of Gridley v. Gridley, 34 N. Y. 130, does not, I think, sustain the ruling in this case, for there the donee of all the testator’s estate was directed to pay all his debts, and the annuity in question. It was held that his acceptance of the gift made him personally liable to pay the annuity. His acceptance of [269]*269the gift was an assumption of the obligation imposed with the gift, and hence he was personally liable.
In this case no such obligation is coupled with the gift, and defendant’s acceptance, therefore, is not an assumption of such obligation.
The cases of McLachlan v. McLachlan, 9 Paige, 534; Van Orden v. Van Orden, 10 Johns. 30; Harris v. Ely, 7 Paige, 421; Spraker v. Van Alstyne, 18 Wend. 200; Larkin v. Mann, supra; Lord v. Lord, 22 Conn. 602; Olmstead v. Brush, 27 id. 530, cited on behalf of plaintiff, all contain the same element of difference from the case at bar, as Gridley v. Gridley, and do not therefore sustain the decision now under review, and I do not find any case where a mere residuary devise of lands has been held to carry with it a charge, even upon the land, much less a personal obligation on the devisee, for the payment of a legacy, upon the failure of the personal property to satisfy. See Myers v. Eddy, 47 Barb. 263.
The acceptance of a devise by the residuary devisee surely cannot raise any implication of a promise to pay a legacy given in a previous clause of the will, unless there is something in the will in the nature of a condition to pay imposed upon such acceptance. ■ Nothing of the kind appears in the will under review, either express or implied.
The position that a promise to pay the annuity may be inferred from the payment for the first three years, upon which the action for the amount in question, falling due in the two succeeding years can be sustained is also, I think, untenable.
The presumption is, not that the defendant paid in consequence of any personal obligation as legatee or devisee, but as executor, and therefore that such payments were made out of assets in his hands as executor.
The cases cited to sustain plaintiff’s position are cases where the part payment was in consequence of a personal liability to pay. Van Orden v. Van Orden, supra, as already stated was, where the defendants were, in consideration of the devise, expressly charged with the payment of the annuity to the plaintiff, and it was held that an acceptance and enjoyment of the estate, and an actual payment of part of the annuity by the devisees, was equivalent to an express promise by them to pay the annuity. So in Gridley v. Gridley, supra, the defendant in consideration of the devise was expressly charged with the payment of the annuity to the plaintiff.
The law upon this point, as stated in the case, is as follows: [270]*270“ When the devisee is personally charged with the payment of the debts and legacies, and takes the whole fund out of which they are to be paid, and his taking is on condition that he pay all the debts and legacies, if he accepts, his liability is absolute. The law raises an implied promise on his part to pay, and no reason exists for ■sending a creditor or legatee into a court of equity to enforce such liability.
In.the case at bar I am very clearly of the opinion that there is, in the fact qf defendant’s payment of the annuity for three years, no ground for raising .a promise to pay the succeeding installments.
I am, therefore, of the opinion that the decision of the court at circuit was erroneous, and that the verdict should be set aside and a new trial granted, with costs to abide the event.
Boardman, J.
There is nothing in this will showing an .intent of the testator to charge defendant personally, and irrespective of assets with the payment of plaintiff’s legacy. The words, “ the said annuity shall be paid by my executor hereinafter named,” impose no duty not imposed by the law in the absence of such words. If this be true, an action at law could not, in any event, be maintained, because the payments made cannot be construed into evidence of an express promise in the absence of any legal or equitable obligation on defendant, personally, to pay plaintiff’s legacy. It is only when such an obligation exists that an express promise, of facts from which it may be inferred, will enable a legatee to recover in an action at law. That is all that is decided in Van Orden v. Van Orden, 10 Johns. 30; Gridley v. Gridley, 24 N. Y. 130; Kelsey v. Deyo, 3 Cow. 133, and kindred cases.
The gift to the defendant is not upon any condition that he shall pay this legacy personally. It is only when the court can see that the gift by the will was intended by the testator as a consideration for payments to be made by the donee, that the donee will be personally charged with such payments upon his acceptance of the gifts. It is not necessary to consider whether -this legacy to plaintiff was a charge upon the real estate devised to the defendant for two reasons.
1. That the form of this action will not enable the plaintiff to recover upon such theory, at least without serious amendments of court.
2. If the action were proper, the accounting of the defendant for [271]*271the assets which came into his hands is a necessary element of investigation, which was entirely disregarded on the trial of this action.
Entertaining these views of the law applicable to this case, I am led to concur in the opinion of brother Parker that the verdict should be set aside and a new trial granted, costs to abide event.