
    MARY E. COLE, Executrix, etc., of EDGAR B. COLE, Deceased, Respondent, v. JOHN M. NILES and another, Executors, etc., of DAN NILES, Deceased, and another, Appellants.
    Legacy, given to discharge debt of testator, does not la/pse by death of legatee.
    
    Defendant’s testator bequeathed to one Cole the sum of $1,500, upon condition that he should not render any account against his estate. The legatee died before the testator, who was at the time of his death indebted to Cole’s estate to an amount less than $1,500. The plaintiff notified the defendants of her acceptance of the legacy. Held, that the legacy did not lapse by the death of , Cole; that upon its acceptance by the plaintiff, a contract was completed by which she became entitled to the legacy, not as a bounty, but as the purchase-price of the claim which was thereby canceled or abandoned.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury. Dan Niles, the defendant’s testator, left a will, bearing date April 6, 1870, which contained among others, the following provision : “ I will and bequeath to my son-in-law, who married my daughter Wealthy, now deceased, of Waterford, the sum of $1,500, to be paid to him at my decease by my executors, upon the express condition that the said Edgar Cole shall not render any account against my estate.” Edgar B. Cole, the person referred to in this provision of the will, died November 10, 1871, not being a child or other descendant of the testator, and leaving no child or other descendant him surviving. Dan Niles died in the month of December, 1871, leaving an estate exceeding the sum of $10,000, and more than sufficient to pay all the legacies. Edgar B. Cole was, at the time of his death, a creditor of the said Dan Niles to an amount not exceeding the sum of $1,500, and no account has ever been rendered or presented therefor against the estate of said Dan Niles. The plaintiff, as executrix of Cole’s estate, in due time demanded- payment of the bequest from the defendants, as executors of the estate of Dan Niles, which was refused, and the defendants have since settled and distributed the entire estate. The plaintiff then brought this action against the defendants, as executors, and the residuary legatees, to recover the amount given in the will, and recovered a personal judgment therefor against the executors, who appealed to this court. No questions were raised as to the form of the action, or on the practice pursued.
    
      John Gadman, for the appellants.
    
      E. IF. Paige, for the respondent.
   Countryman, J. :

This legacy must be regarded as lapsed, unless it can be sustained' as a provision for the payment of a debt due from the testator to the deceased legatee. As it does not fall within the exceptions created by the Revised Statutes, saving certain classes of legacies from lapsing, the question must be determined under the rule at common law. The provision in question is, in terms, a mere proposition to adjust a claim held by the legatee against the testator, upon the' basis of the legacy, which is directed “to be paid * * * upon the express condition "that he shall not render any account against the estate.” From the facts found below, it appears that the testator was indebted to the legatee in an amount not exceeding the legacy; that the estate has been settled and distributed, and no claim presented to the testator’s estate on behalf of the estate of the legatee; and that due notice was given by the plaintiff, before the final settlement, to the defendants of the acceptance of the legacy, and a demand made for its payment. The legacy was given on condition that it be accepted in payment of the claim held by the legatee against the testator, or as a satisfaction of the debt. Payment of the claim could have been enforced against the testator or his estate, as well by the personal representatives of the legatee after his death, as by the legatee in person if alive, and the representatives could also as well adjust the claim by accepting the proposal of the testator and receiving the legacy in payment. The reason of the rule for a lapse in the case of an ordinary legacy — that there is no one in whom the legacy can vest at the time of the testator’s death—has, therefore, no application, as it was not intended that the bequest should vest; and it would not have vested in this case, if the legatee had survived, except upon the condition that it was accepted in absolute payment. And, as already stated, this acceptance could be given" as effectually by the personal representatives of the legatee after his decease, as by him in person during his life. Where it is the intention of the testator that the legacy shall be deemed a satisfaction of a pre-existing debt, the acceptance of the legacy will extinguish the debt. The legacy is the price, or value, put by the testator upon the opposing claim, which is submitted for acceptance at his decease. The final, acceptance of the proposal involves the relinquishment of the claim, and forms a good consideration for the legacy. A contract is thus completed by which the-legatee or his representatives become entitled to the legacy; not as a bounty, but as the purchase-price of the claim which has been canceled or abandoned. This exception to the ordinary rule, that a legacy must lapse whenever the legatee has died before the death of the testator, has been repeatedly recognized in the English courts; and provisions of this character have invariably been sustained. It is, doubtless, true that the legal definition of a legacy embraces “a thing given either as a gratuity or as a recompense,” and therefore includes “ as well one made in lieu of dower and in satisfaction of an indebtedness,” as one which is wholly the bounty of the testator. But it is equally true that different rights attach to these different classes of legatees, both as between themselves and with reference to the estate. In case of a deficiency of assets, legacies founded on a previous indebtedness or other valuable consideration, do not abate ratably with other general legacies, but must be first paid in full. These legatees take their legacies as purchasers, and they are only liable to abatement as between themselves. TTpori the same principle such a legacy must be enforced when accepted by the representatives 'of a deceased legatee, notwithstanding his death occurred before the death of the testator. The judgment of the Special Term must be affirmed, with costs.

Present — Boceles, P. J., Land on and Countlryman, JJ.

Judgment affirmed, with costs. 
      
       3 Rev. Stat. (5th ed.,) 116, § 52.
     
      
       Williams v. Crary, 4 Wend., 444.
     
      
       Williamson v. Naylor, 3 Younge & Collyer’s R., 208; Philips v. Philips, 3 Hare’s Ch., 281; Turner v. Martin, 7 De Gex, McN. & Gor., 429; In Matter of Trustees of Will of Peter Somerby, 2 Kay & Johns., 630.
     
      
       Orton v. Orton, 3 Keyes, 486.
     
      
       Wood v. Vandenburgh, 6 Paige, 278; Williamson v. Williamson, 6 id., 298.
     