
    John G. Zweigle, Resp’t, v. Maria Hohman et al., Resp’ts. Otto Beck, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1894.)
    
    1. Will—Charge.
    The acceptance of a devise, made on condition that the devisee pays certain legacies, renders him personally liable, and and action therefor is not on a sealed instrument.
    
      2. Same—Limitation.
    The six years’ limitation applies to such action.
    Appeal from a judgment in favor of defendants Hohman on issues between defendants.
    
      F. F./Iurlc, for app’lt; Wile & Qoff, forresp’t Zweigle; William Q. Jerome, for resp’ts Hohman.
   Bradley, J.

The provision in the will to the effect that the testatrix gave her property to the defendants Hohman upon the condition that they paid the legacies there mentioned did not create a condition precedent to the vesting of the estate in them. They, on acceptance of the devise, were seized, in fee of the premises, and became personally liable to pay the legacies; and, by reason of the condition so expressed in the will, the legacies were made a charge in equity upon the land. Loder v. Hatfield, 71 N. Y. 92. The testatrix was mother of the legatee Otto Beck, then an infant, and in loco parentis to him; and for that reason, and because no other provision was made for him, he was entitled to interest upon his legacy from the time of her death. Brown v. Knapp, 79 N. Y., 136. And the charge of it upon the premises was superior to the lien of the mortgages in question, and was in due time available as such, unless reasons existed which would have enabled the mortgagees to insist, if necessary for their protection, that payment of the legacy should first be sought from those who were personally and primarily liable to pay it. Dodge v. Manning, 1 N. Y., 298. Whether that could have been required of the legatees of the will in question, if they had proceeded in equity to enforce the lien against the realty devised, we are not advised by the evidence, nor is it necessary, in the present case, to consider that question. It may here be assumed that the remedies at law and in equity were concurrent. In such case the statute limiting the time for the commencement of the action at law is applicable alike to both remedies. This was so before there was any statute in that respect relating to suits in equity, and the provisions of the Revised Statutes applying to the latter the same limitation of time for their commencement (2 Rev. St., p. 301, §49) was declaratory of the law as it then existed, (Borst v. Corey, 15 N. Y., 505.) The statute of limitations applicable to an action at law against the devisees of the will to recover the legacy was alike available as a defense to a suit in equity founded upon the charge of it as a lien upon the land. In re Neilley, 95 N. Y., 382, 390; Butler v. Johnson, 111 N. Y., 204, 217; 19 St. Rep., 85. The limitation of six years is alleged by the defendants Hohman as a bar to the charge founded upon the legacy made by the legatee in his answer. His cause of action accrued when he arrived at the age of twenty-one years in 1883—nine years before this action was commenced. Although the will was sealed with the seal of the testatrix, an action to recover the legacy would not be one on a sealed instrument, within the meaning, of the statute. It would be founded upon the implied promise of the devisees to pay, arising from their acceptance of the devise. American Bible Society v. Hebard, 61 Barb., 552; 41 N. Y., 619 ; Loder v. Hatfield, 71 N. Y, 92, 104. Hor is the statutory limitation of ten \ ears (Code, § 888) applicable to an action by the legatee to enforce it as a charge upon the land. That provision is applied only to cases exclusively within equity jurisdiction, and in which there is no concurrent remedy at law. Butler v. Johnson, 111 N. Y., 204; 19 St. Rep., 85.

It follows that the six-years’ limitation statute is applicable to the claim made by the defendant Beck, and, as it does not appear that any partial payments were made upon his legacy within that time next preceding the commencement of the action, it was a bar to relief in his behalf in the action. The question of the alleged payment of it is not here for consideration. Upon that subject there was a conflict in the evidence, and the trial court did not find what the fact in that respect.

The judgment should be affirmed.

All concur.  