
    Alexander Fuller v. James McEwen.
    I'. Where a devisee or legatee accepts a devise or bequest charged by the will with the payment of the debts of the testator, the law imposes on the devisee or legatee a personal obligation to pay such debts; and in an action to enforce suet personal obligation, tbe fact that tbe devisee or legatee is or is not also executor of the will, makes no difference in the case.
    .2. In such a case, the statute limiting actions against executors and administrators to four years, does not apply.
    .3. The action in the case being founded on an implied personal promise of the devisee or legatee,'the statute of limitations would begin to run in his favor only upon his acceptance of the devise or bequest.
    *Error to the district court of Trumbull county.
    November 6,1862, McEwen filed his petition against Alexander Fuller, in the court of common pleas, to recover the balance due on & note executed May 18,1854, by Davis Fuller, at Youngstown, •Ohio, for $195.42, at ninety days, to the order of James McEwen & ■Co., at the Mahoning County Bank, indorsed with a. payment of «100, May 3, 1855.
    In his petition, McEwen states that he is the owner and holder of the note; that it was not paid at maturity, though duly presented’; that the maker, Davis Fuller, died testate; that his will was duly admitted to probate (a copy of the will is made a part of the petition) ; that Alexander Fuller was made sole executor of the will, and received letters executory June 1, 1855, and entered upon ■and continues to discharge the duties of executor; that previous to the settlement of the estate, and the payment of the legacies in the will, the executor was notified of the existence of the note by the plaintiff, as a-debt and claim against the estate. That the will gives the residue of the estate and property of the testator, after the. other legacies and costs of administration and debts are paid, to the said Alexander Fuller, and that such residue was specially charged, by the will, with the payment of the testator’s debts, which were thereby made a lien and charge, upon such residue. That the said residue, which the defendant, Alexander Fuller, took and retains possession of as his own, is more than sufficient, after paying all the legacies, costs, and other debts, and which have been paid, to pay the debt due the plaintiff. But that the defendant refuses to pay, etc.
    The first item of the will reads thus: “ It is my will, and I direct, that all my just and lawful debts and liabilities be first paid.”
    Item ten reads thus: “ I give and bequeath to my son, Alexander Fuller, all the residue of my property, both real and personal, out of which it is my will that he pay all my just debts,” etc.
    This is all the will says about the payment of debts.
    
      The answer of Alexander Fuller sets up the probate of the ♦will, the filing of his bond as executor on June 6, 1855, and the publication, on the 13th, of due notice of his appointment; and that, within four years after the date of the bond, he collected all the assets of the estate; that the plaintiff did not bring this suit within that four years; that defendant had no notice of any such note or debt as set up in the petition, u,ntil the fall of 1861, more than six years from the date of the bond; that the claim was never presented to the defendant, and that he was never requested to pay the same.
    The plaintiff demurred to the answer on the ground that it does-’ not state facts sufficient to constitute a defense to the action.
    The demurrer was sustained and judgment entered on the petition for plaintiff.
    The district court affirmed this judgment on proceedings in error.
    To reverse this judgment of affirmance, the present petition in. error was filed.
    
      Geo. M. Tuttle, for plaintiff in error:
    As a debt against the executor, as executor, it is clear that the claim sued upon was barred by the lapse of four years. 1 S. & C. Stat. 585, 586, secs. 103-105.
    This statute applies to the executor as devisee. Ang. on Dim. (3 ed.), secs. 169, 170; Clyde v. Simpson, 4 Ohio St. 445, 455, 456;, Id. 512 et seq.; Id. 519.
    The provisions in question are borrowed from Massachusetts. Per Brinkerhoff, J., in Paine v. Mason, 7 Ohio St. 198, 207.
    The authorities of that state, therefore, have a peculiar importance. See Brown v. Anderson, 13 Mass. 201, 203; Thompson v. Brown, 16 Ib. 172, 180; Davis v. Shedd, 15 Ib. 6.
    The liability of the devisee is but the incident to the liability of the estate, and is collateral to it. Such being the case, it can last no longer than the principal liability. Ohio v. Blake, 2 Ohio St. 147, 149; 18 Ohio, 234.
    This result is a necessary inference from the further provisions of the statute. Part 9, secs. 1 and 2 (1 Curwen, 753).
    *The limitation of suits against executors to four years is intended for the benefit of those interested in the estate; and he-needs the protection most, who, by accepting a supposed bounty • of the testator, becomes liable, when liable at all, not for the mere amount of property received, but for all the debts of the estate.
    
      F. E. Hutchins, for defendant in error:
    • The question presented is whether, upon the facts, the plaintiff in error was liable, at the commencement of this action, to pay the debts of the testator, either as executor or as residuary legatee.
    "Without admitting that he was not liable as executor, notwithstanding the expiration of four years from the date of the bond, yet this action is predicated upon his liability under the will, as residuary legatee.
    
    The defense set up in the answer, if it be a defense at all, is so only as to the liability of plaintiff in. error as executor. It is simply a plea of the statute of limitations applicable to actions against executors, as such. It .does not attempt any defense to his alleged personal liability.
    By the terms of the will, and by his acceptance and enjoyment of the property, the plaintiff in error was personally charged, and the property given to him was also charged with the payment of all the debts of the testator, including that due to the defendant in error.
    My proposition is this: Where a testator devises the residuum of his estate, directing the devisee to pay his debts or legacies, and the devisee accepts and takes and enjoys the property, he is personally bound for the payment of the debts or legacies, and the same are also a charge upon the property devised. The devisee in such case takes the property cum onere, and his acceptance is an implied promise to pay as directed. He can not enjoy the benefits and. repudiate the obligations of the devise. Williard’s Eq. 487-489 ; 7 Paige, 421; 11 Id. 334; 15 Conn. 534; 22 Id. 602; 27 Id. 530; 24 N. Y. 130; 9 Mass. 510; 2 Comst. 501; 3 Gray, 516; 4 Ohio St. 445; 3 N. Y. Dig. (Abbot’s), 693; 6 Id. 201, 588.
    The jfiaintiff in error having thus become personally bound *for the payment of the debt, there is nothing in his answer to show that his liability has ceased.
    There is no plea of the general statute of limitations; only that relating to executors as such.
    There is neither authority nor reason for the assumption that this personal liability of the devisee, is but the incident to the liability of the estate, and collateral to it. The liability of the plaintiff in error being personal, it is no more affected by the four year’s limitation applicable to claims against executors, than would be any other personal demand against him.
    Part IX of the administration act has no application to the present case.
   Brinkerhoff, J.

The case made by the record brought under review before us, is, in brief, this :

Alexander Fuller, plaintiff in erz’or and defendant izz the original action, is executor of his father’s will. By the terms of that will he is made the residuaz’y devisee and legatee of his father’s estate, ■and out of such residuary devise and legacy he is directed to pay .all the testator’s just debts. He took possession of, and retains as his own, all the property covered and passing by that legacy, and which is sufficient to pay all the debts of the estate. At the time of the testator’s death, he.was indebted to the plaintiff below on a promissory note, of which the plaintiff below is still the owner and holder, and the amount of which the defendant below refuses to pay. The claim for the amount due on the note was not presented to the executor for allowance and payment within four years after he was duly appointed and qualified as such executor, nor did the defendant below have notice of the existence of such claim until the expiration of six years after he was duly qualified as executor of his father’s will.

The original action is brought against the defendant below, not in his capacity and character of executor of his father’s will; not for the enforcement of the execution of a trust attaching to property bequeathed to him in trust for the payment of the amouut due on the note remaining in the hands of the plaintiff below; but against the defendant below in his individual ^capacity, ■on his promise implied by, and his obligations resulting from, his acceptance of the residuary bequest charged with the payment of all the debts of the estate.

That the plaintiff below might have maintained an action, if prosecuted in due time, against the defendant below as executor of the will, on the note, is .very clear; and that he could have gone into equity and charged the residuary bequests as being held by the defendant below in trust for the payment of the note, is equally clear. Willard’s Eq. 487-489. And it seems to us to be 'In entire consonance with just principles, and now well settled by authority, that he might well do as he has done — bring his action against the legatee in his individual capacity, on his personal obligation and promise, implied by law from his acceptance of the-bequest charged by the will with the payment of the debts. Gridley v. Gridley, 24 N. Y. 130. And this being the nature of the-action, the statute limiting the commencement of actions against, executors and administrators to four years, has nothing to do with the case, and no other statute of limitation is pleaded. At what, time the action in favor of the plaintiff below did in fact accrue, we are not informed. That would depend on the time when the legacy was accepted.

The fact that the defendant below is executor of the will, as well as residuary devisee and legatee under it, has no bearing on this case. His obligations would be the same whether he were or were mot such executor.

As the case stands, the question whether, if the property passing-by the will to the defendant below were insufficient to pay, in full, the debts of the testator, he would still be personally liable'for the full amount of the debts, is not before us, and, of course, not, decided.

Judgment affirmed.

Pat, C. J., and White, Welch, and Scott, JJ., concurred.  