
    Levi Bartholomew, as Adm’r of Sarah A. Bartholomew, Dec’d, Resp’t, v. Robert J. Adams et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1889).
    
    Legacy—When vested.
    One M., by his will, gave all his property to his wife, with a provision that she pay $1,000 to plaintiff’s intestate at any time she chose to do so; but in case of the wife’s death before such payment, such sum to be paid out of the personal property if sufficient, and if not, to be a charge on the real estate. The legatee died before the widow. She was of weak intellect, but capable of working, and assisted the widow as long as she lived. After her death the widow conveyed the premises, with a reservation of possession during her life. Held, that the legacy to plaintiff’s intestate vested at the death of testator, and was a charge on the real estate and was not affected by the deed, and that, under the circumstances of the case, payment thereof by the board and support of intestate would not be presumed.
    Appeal from judgment in favor of plaintiff, entered on the decision of the court after trial without a jury.
    Action to charge real estate with the payment of a legacy, and for a sale thereof for that purpose.
    The court below delivered the following opinion:
    Tappan, J. Plaintiff seeks to recover a legacy to Sarah A. Bartholomew under the will of James H. Martin. The will was executed February 11, 1865. The testator died in March, 1868, and his will was probated, and the executrix qualified on the 1st day of June, 1868. After providing for the payment of the testator’s debts, the will read as follows: “ I give and bequeath to my dear wife, Docia Ann Martin, all my real and personal property of every name and nature whatsoever, with this provision, however: My said wife is to pay to my niece, Sarah A. Bartholomew, the sum of $1,000, without interest, at any time when my said wife chooses so to pay the same; but in case of the death of my said wife before the payment thereof, then, and in that case, the same is to be paid out of the personal property, if there shall be sufficient for that purpose, and if not sufficient personal property, then the sum remaining unpaid thereof is to be paid out of the real estate. My said wife is to have the power to will, sell and convey the property of which she will become seized by this will (said $1,000 to be paid as above provided, however), and the avails thereof in case of sale is to be used or disposed of as my said wife may choose.
    “ It is my intention to give the whole of said property to my said wife, with power to control, sell and convey, trade or transfer said property wholly as she chooses with the provision as to the said $1,000.” When such will was made, testator was very sick, and did not expect to survive but a few hours; he left no children. His family then consisted of his said wife and the said Sarah A. Bartholomew, who was then between sixteen and seventeen years old, who had resided with him since she was seven years of age. He then owed debts exceeding the amount of his personal property; he was seized of the land described in the complaint, about nineteen acres in the town of Whitehall and owned no other real estate. Said Sarah A. Bartholomew -continued to reside in the family of the testator until he died, and afterwards with the said Docia Ann Martin, as a member of her family until the time of the death of the said Sarah A., September 15, 1872.
    During her whole life she was of feeble intellect, not qualified to do business, or to have the control or management of property independent of others; but she was of robust health, knew how to do the work required to be done in a house, and about a barn and farm, and was kind and obedient.
    Said Docia Ann used and occupied the said property devised and bequeathed to her by said will until her death, August 15, 1888. After the death of said Sarah A., and on the 25th of March, 1873, she conveyed said premises by warranty deed to the defendants, Asbury Merriam, William J. Wood and Bishop Merriam, which deed recited a consideration of $2,500, and contained a reservation of the possession of said property during her life to the said Docia Ann, and provided that at her decease the said parties were to have full possession.
    At the time this deed was executed said parties executed to her a life lease of said premises, which contained a covenant by the lessors that in case the said Docia Ann should need, for her use, support and comfort, more than the annual rents and profits of said property, then said lessors, on request, would pay to her such sum or sums, and at such time and times as she should require and request, for her comfort, use and support. No consideration in money or property was paid upon the making of said deed or said lease; said Docia Ann was in possession of said property, under said will, at the time the said deed and lease were made, and so continued up to the time of her death, August 15, 1888.
    The object of said deed and said lease was to perfect the title of said premises in said grantees and lessors upon the decease of the said Docia Ann, and the only actual consideration therefor was the said covenant in said lease. Said Docia Ann left a will whereby she devised and bequeathed all the remainder of her real and personal property, after payment of her debts and liabilities, to the defendants, Bobert J. Adams, Betsey Ann Eeed and Bachel A. Weaver; and the defendant, Asbury Merriam, is named in said will as sole executor thereof. Under the will and said deed, defendants claim interest adverse to the plaintiff. It is contended by the defendants that the legacy was paid by board, care and clothing furnished to said Sarah A. from the time of the death of the testator, in March, 1868, to the time of her death, September 15, 1872.
    During that time she resided with said Docia A., as a member of her family. It was not claimed that any agreement was made by said Sarah, or- any one having authority in her behalf, to pay for board, lodging or clothing. She had money from her father’s estate that was sufficient to pay for her clothing, that was probably used for that purpese. She performed work about the house, which was of some value.
    
      Under the circumstances the law does not imply an agreement to pay, because it is not presumed that one party expected to charge, or the other to pay, for what was furnished.
    The defendants have the burden of showing payment, and have failed to show that what Sarah A. received was of more value than her labor and services rendered for and while she was a member of the family of said Docia Ann. No claim was made by the defendant that payment of the legacy had been made in any other way.
    It is contended by defendants, however, that the legacy was only to be paid to Sarah A., either during the life of Docia A. Martin, in case the latter should choose to pay, or in case said Sarah A survived her, then it was to be paid out of the personal property of testator, and in case of deficiency, then out of the real estate; that Sarah A. having died before said Docia A., before the legacy was paid, and before it was due, it was merged and did not pass to the plaintiff as administrator; it is argued that it is to be fairly inferred from the mental condition, age and relationship of said Sarah A. to the testator and his wife, that the legacy was intended for her personal use and protection only, and the postponement of its payment was in her interest, for her benefit, and. not for the benefit of testator’s wife, or of the estate given to her.
    The wife is given property with the provision and condition attached, that she is to pay the sum of $1,000 to Sarah A. Having received the property, she became liable to fulfill the condition attached to its devise to her. 79 N. Y., 136; 28 Hun, 195 ; 7 Paige, 421.
    Postponement of payment operated to increase the amount which she would receive to an amount equal to the interest of $1,000, which would have belonged to Sarah A had the legacy been payable immediately.
    There is no condition or provision as to how the legacy was to be used, as would have been the case if it had been intended for support and maintenance only; neither is there any condition as to payment; no contingency which would excuse payment. Care seems to have been taken to preserve the lien upon the testator’s property for the payment of the legacy, and allow Docia A., the widow, to dispose of the property in any manner, at any time, sub' ject to such lien. For these reasons, I think the legacy vested upon the death of the testator, and was then a charge upon the real estate, payable upon the death of the widow; that the deed and lease do not in any manner affect such lien. Patterson v. Ellis, 11 Wend., 259 ; Marsh v. Wheeler, 2 Edw. Ch., 156; Birdsall v. Hewlett, 1 Paige, 32; Loder v. Hatfield, 71 N. Y., 93 ; Bushnett v. Carpenter, 92 id., 270.
    The defendant’s title is referred to the will, and is subject to its provisions. Harris v. Fly, 7 Paige, 421. A decree should be entered that plaintiff is entitled to receive said legacy, and that the same is a lien upon said premises; that the same be sold and the proceeds be applied to pay plaintiff’s costs, and the expenses of sale, and the said sum of $1,000 and interest, from August 15, 1888, and directing the surplus, if any, to be paid to the defendants, the grantees in said deed.
    
      A. D. Wait, for app’lts; J. Sanford Potter, for resp’t.
    Judgment is ordered accordingly.'
   Judgment affirmed on opinion of the court below.

Learned, P. J., Landon and Ingalls, JJ., concur.  