
    (75 Hun, 377.)
    ZWEIGLE v. HOHMAN et al.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    1. Limitation oe Actions—Concurring Law and Equity Jurisdiction.
    The acceptance of a devise on condition that the devisee pay a certain sum to a third person imposes a personal liability on the devisee and creates a charge in equity on the land, the remedies for which are concurrent, and the 10 years’ limitation (Code Civil Proc. § 388) does not apply, as it relates only to cases exclusively within the jurisdiction of equity.
    
      3. Same—Promise Implied from Acceptance of Devise.
    Where a will under seal is conditioned that a devisee pay a certain sum of money to a third person, the liability of the devisee to pay such sum is founded, on a promise implied from the acceptance of the devise, and an action therefor is not an action on a sealed instrument
    Appeal from Monroe county court.
    Action by John G. Zweigle against Maria Hohman, Henry Hohman, and others. From a judgment in favor of defendants Hohman on issues between the defendants, defendant Otto Beck appeals. Affirmed.
    The action was for the foreclosure of two mortgages made by the defendants Hohman,—one to the plaintiff, of date July 1, 1878, to secure the payment of $350; the other, of date January 1, 1879, to John Burger, to secure the payment of $500, and by the latter assigned to the "plaintiff. The defendants Beck, who are husband and wife, alone defend. They allege an estate of inheritance in an undivided one-third of the premises in the defendant Otto Beck, founded upon the following facts: In.May, 1876, Margaretha Beck made her will, whereby she gave to the defendants Hohman all her property, real and personal, upon the condition that they pay to each of her children, Ludwina Beck, Balthazar Beck, and Otto Beck, $300, on the arrival of the latter at the age of 21 years, except as to Ludwina, whose legacy was to be paid when she arrived at age. The testatrix soon after died seised of the premises in question, and the will was admitted to probate in February, 1877. The defendants Hohman went into possession of the premises immediately after the death of testatrix. The defendant Otto Beck was then 14 years of age. He alleges that no part of his legacy has been paid to him. The defendants Hohman, by their answer, alleged that the legacy to the defendant Otto Beck has been paid to him, and, further, that the cause of action did not accrue within six years before the commencement of the action. It was begun in April, 1892. The trial court directed judgment of foreclosure and sale, in favor of the plaintiff, and, upon the issue between the defendants Beck and Hohman, directed judgment for the latter.
    Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
    E. F. Turk, for appellant.
    Wile & Goff, for respondent Zweigle.
    William G, Jerome, for respondents 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 tq the vesting of the estate in them. They, on acceptance of the devise, were seised 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 Ottc- 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. Knapps, 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, provision 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, 18 N. E. 643. ’ 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 21 years, in 1883,—nine years before this action was commenced. Although the will was sealed with the seal of the testatrix, an ac tian 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. Society v. Hebard, 51 Barb. 552, 41 N. Y. 619; Loder v. Hatfield, 71 N. Y. 92, 104. Yor is the statutory limitation of 10 years (Code, § 388) 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, 18 N. E. 643.

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 was in that respect. The judgment should be affirmed. All concur.  