
    Yearly et al. v. Long et al.
    A testator devised all his real estate to his son; he, however, to pay the testator’s daughter a legacy, in annual installments. Held,
    
    1. That the devise did not create a continuing and subsisting trust within, the purview of section 6 of the code, S. & C., 941.
    2. That the legacy was an equitable charge upon the estate devised; and that an action by the daughter to recover the unpaid installments, was barred after the lapse of six years from the time the right of action accrued on said installments respectively.
    Error to the District Court of Licking County.
    Joseph P. Long and others, creditors who held liens by judgments and mortgages, filed their petition in the court of common pleas against Andrew Weiant, Jr. and others who held liens on his lands, praying to have the liens on the land described in the petition adjusted and marshalled, and that said land might be sold to satisfy such liens according to their priority. Emeline Carver who was made a defendant, filed her answer and cross petition, alleging among other things, that her father, Andrew Weiant, died in 1858, seized of the tract of land described in the plaintiffs’ petition as" the sixth parcel, and that she had a lien thereon.
    Andrew Weiant before his death executed his last will, in which, after directing that all his just debts and funeral expenses should be paid out of his estate, gave and bequeathed all the real and personal property of which he might be possessed at the time of his decease to his son Andrew Weiant, Jr., he, however, to pay to the testator’s daughter Emeline Carver the sum of fifteen hundred dollars, in the following manner, to wit: One hundred dollars in one year after the testator’s decease, and one hundred dollars each. and every year after that time, until the full sum of fifteen hundred dollars should be paid. The testator appointed his said son executor of the will, directing therein that he be not required to give bond as executor, nor be compelled to make an inventory and appraisement. The said son accepted the provisions ,of the will — took possession of the property given and bequeathed to him — and after so accepting, paid to Emeline Carver one hundred dollars on the 1st of May, 1860, one hundred dollars on the 1st of May, 1861, and two hundred dollars on the 1st of May, 1864, but thereafter made no other payment on said legacy.
    Emeline Carver in her cross petition claimed, that said sixth parcel of land was charged with the payment of the balance of her legacy; that her lien therefor was the first and best; and though not asking for the sale of the land, prayed that should any order of sale be made, the unpaid installments of her legacy might be paid out of the proceeds of the sale. To the cross petition of Emeline Carver answers were - filed, setting up the statute of limitation of six years. To these answers she demurred, because they did not state facts sufficient to bar her right to recover said unpaid installments. On appeal to the district court, her demurrers to said answers were overruled, and it was held, that her action to recover the unpaid installments of said legacy was barred after the lapse of six years from the time her cause of action accrued thereon respectively. A petition in error filed in this court by Levy N. Yearly, one of the defendants, having been dismissed, the points in controversy arise upon the cross petition in error of Emeline Carver, also filed herein, to reverse the judgme^tf of the district court.
    
      James M. Stariberry, for plaintiff in error.
    The question of law presented is, whether the executor and devisee of Andrew Weiant, Sr., did ’«ot hold this land, charged with an express trust to nay Emeline Carver’s legacy, and if he did, whether che bar of the statutes is pleadable to avoid its payment.
    Section 49?4, Revised Statutes of Ohio, provides: “ Nor shall this chapter apply to the case of a continuing trust, nor to an action by a vendee of real property in possession thereof, ta obtain a conveyance of it.”
    
      If the payment directed by the testator of this legacy comes within the class of continuing and subsisting trusts, which have been defined as express in contradistinction to implied trusts, the limitation statutes as to other actions will not apply.
    The estate devised to the executor is a conditional fee, and he receives it, coupled with the trust of complying with its conditions. The executor and devisee takes the estate with the onus of the legacy, and it does not become perfect in him until its removal, by full payment of the legacy. He holds upon that express condition, and there is no expression in this will, giving to this claim for the legacy, the appearance of a trust resulting from implication. The averments of the cross petition of plaintiff in error disclose the provisions of the will and define the nature of his trust.
    “ The general rule is, that if the testator creates a charge upon the devisee personally, in respect of the estate devised, as if he devised lands to B, on condition of his paying such a legacy, the devisee takes the estate upon that condition, and he will take a fee by implication.” 4th Kent’s Comm., 541; Jackson v. Bull, 10 Johns. R., 148; Jackson v. Martin, 18 Id., 35; Shraker v. Van Alstigne, 18 Wend., 200; Karris v. Fly, 7 Paige, 421; McClellan v. Turner, 17 Maine, 436; 9 Mass. R., 161; 10 Wheaton, 231; 3 Mason, 209, 212; 5 T. R., 558; 4 East., 496; Cruise’s Dig., title Divise, §§ 11, 49, 70; 2 Preston on Estates, 207-250; 4 Comstock, 56 ; 33 Barb., 250; 3 Mason, 178; 1 Ohio St., 66, 80.
    I claim that, Andrew Weiant, Jr., as executor and devisee, holds the land, subject to the lien of the legacy, and so long as he holds thus without disclaimer or without by unequivocal acts by grant or othérwise, with knowledge of the legatee ignoring her claim, it still subsists and continues, or at all events, as a lien in equity, is not barred by the defense pleaded.
    It is not pretended any disclaimer of the trust exists, or that any such acts as would end it have been done by the devisee.to show-that the plaintiff’s legacy is a charge on the land devised. See Nellons v. Truax, 6 O. S. Rep., 98.
    “The executor Andrew Weiant, Jr., need not be first sued and the personal estate exhausted, because the fee of the land was granted to, and vested in him, as devisee, burdened with the discharge and charge of the legacy as upon the estate devised.” 12 Wheaton, 498, 60 and 114.
    “ The language of the devise makes the legacy a specific lien on the real estate,- as well as a charge against the devisee personalty.” - Sugden on Vend., 331 and 332.
    The trust of the executor “ continues and subsists ” so long as the legacy or any part is unpaid, and the bar of the statute does not attach until payment, or unless the trustee can be presumed to have been discharged by some act of adverse possession, or grant, to which the legatee assented.
    
      J. Buckingham, for defendant in error.
    Was Mrs. Carver’s action to enforce her equitable lien on the land barred in six or ten years after cause of action accrued, or is it not barred at all by the statute of limitations.
    It is not true, in any legal sense, that the estate of Andrew Weiant, Jr., was conditional.
    It may be said that it was on the implied condition that he would accept it, and every devise or grant is on that condition; but the devise was not to begin or end on the happening of any other event.
    Nor, as we believe, is it true that it created an express or a continuing trust or any trust at all in the true and legal meaning of the word. It may be conceded that in the opinions in reported cases and in text books, in which such devises are mentioned in connection with express and implied charges of debts and legacies on land, and devises to executors or trustees in -trust to pay debts or legacies, they are spoken of occasionally as implied trusts, but it has been incidentally merely and nothing has been made to turn upon that.
    In fact, so far as I have discovered, all that the courts Lave decided in that regard is that, on the acceptance of the devise, the law implies a promise to pay the money and gives in equity a lien for it upon the laud; it is not a lien at law, and is only so in equity, and is no more than a lien. There is no estate, nor any right of possession in the person to whom the money is to be paid.
    The devisee is required by the testator to pay it as purchase money for the land: he is in fact, to that extent, a purchaser, and the lien, in every substantial respect, is the lien of a vendor, enuring to the person to whom the money is payable. See Ranney. J., 4 O. S., 459 — 462; 10 John. R., 30.
    The equitable lien of a vendor, who has no note or bond for the purchase monej', is barred in six years. Borst v. Corey, 15 N. Y., 505; Littlejohn v. Cordon, 32 Miss., 235; Ang. on Lim., sec. 92, note (6th Ed.)
    An action at law lies against the devisee who has accepted the devise, and the statute of limitations begins to run as soon thereafter as the money is payable. Fulton v. McFwen, 17 O. S., 288; Phillips v. State, 5 ib., 22.
    In all cases in equity in which there is also a remedy by an action at law, the suit in equity is barred in the same time that the action at law is barred. Phillips v. State, 5 Ohio St., 132 ; Webster v. Webster, 10 Ves. 93 ; Ang. Lim., (6th Ed.,) § 176.
    A general charge on land by a devise for payment of debts, does not extend the period of the statute of limitations. Trinity Church v. Watson, 50 Pa. St., 518; Agnew v. Fetterman, 1 Har., 56.
   Dickman, J.

Upon an examination of all the provisions of the will of Andrew Weiant, it becomes evident, that it does not — as contended by the plaintiff in error — create, nor was it the intention of the testator to create a trust that would not be subject to the operation of the statute of limitations. The devisee stood under certain obligations in reference to the annual installments of the legacy. But, the obligations devolved upon him after accepting the provisions of the will, did not amount to a continuing and subsisting trust within the meaning of section 6 of the Code. (S. & C., 941.) The class of trusts which as between the trustee and cestui que trust are not barred by the statute, embraces those technical, direct and express trusts which are of a nature cognizable solely in equity. It would not, therefore, include the almost innumerable cases of implied and constructive trusts so-called, as for example, deposits or bailments not special in their character, or other trusts analogous to these. The will of Andrew Weiant, while it makes it incumbent upon the devisee of the land to ■pay the legacy, does not create a direct trust, and devolve upon him such duties and obligations that he cannot claim the benefit of the statutory limitation. He is not made a custodian of money or lands which the testator has beneficially given to Emeline Carver, but at the same time placed in the hands of the devisee in the special confidence that he will pay out and manage the same for her use and benefit. The testator gave the devisee the personal estate absolutely, and by implication a fee simple in the real estate, imposing upon him an annual indebtedness to Emeline Carver. An obligation was created, but not a continuing trust in the sense of the statute. Instead of a direct, express trust cognizable in equity alone, by the act of accepting the devise, the devisee became liable to an action at law, the very moment he failed to pay an installment of the legacju The testator directed that the devisee should not be required to give bond and security as executor, nor be compelled to make an inventory and appraisement of property. If the testator intended to create a direct trust, it will be observed, that while the devisee is made executor, the will imposes upon the executor no duty in reference to the payment of the legacy, although the executor as such is generally presumed “to act as the trustee of the testator, to fulfill his intentions, and to be governed by his directions.” (Wills v. Cowper, 2 Ohio, 127.) The devisee had full power to manage the real estate so as to make profits or gains therefrom for himself, with no accountability to the legatee as cestui que trust for resulting gains, and with no claim against the legatee for contribution towards taxes, or any of the expenses incident to the management of the property. Unlike a trustee charged with an express trust, however faithfully the devisee might manage the estate, having accepted the devise he became bound to pay the installments of the legac3r, though the property by depreciation might prove insufficient to pa3>- the same.

The question has arisen in this case, When was an action to recover the unpaid installments of the legacy barred by the statute of limitations? As soon as the devisee accepted the provisions of the will, an implied obligation arose on his part to pay the legac}r; and upon such an implied contract — not in writing — an action can be brought only in six years. No obligation, rested upon the deviseeuntil after the death of the testator, and the acceptance of the devise; there was no consideration moving to thedevisee from Emeline Carver, and there was nothing in the acts of the parties, or on the face of the will, that made-the devisee a party to a written contract. Any promise on his part to pay the legacy rested wholly in implication. If there was any privity of contract between the devisee and legatee it was created b}r law; and if there was any promise on the part of the devisee, it was only such as the law implied.

In Adams v. Adams, 14 Allen, 65, the declaration alleged,, that the defendant took a certain homestead estate as devisee under the will of John Adams, upon the condition, that he should within two 3rears after .the death of the testator, pay to Charles Adams, the plaintiffs’ intestate, the sum of six hundred dollars. Foster, J.: “ The sum payable to Charles Adams was a legacy which vested upon the-acceptance by the defendant of the devise to him on condition of its payment. Upon the acceptance of such a devise, the law-raises an implied promise by the devisee of the estate charged, in favor of the legatee of the money charged upon it. The legacy vested as soon as the defendant accepted the devise to him, although not payable till two years after the testator’s death.” See also Brewer v. Dyer, 7 Cush., 337 ; Felch v. Taylor, 13 Pick., 133; Putnam v. Field, 103 Mass., 557; Stimpson v. Monmouth Mut. Fire Ins. Co., 47 Maine, 385; Mellen v. Whipple, 1 Gray, 321; Exchange Bank of St. Louis v. Rice, 107 Mass., 41; Carr v. National Security Bank, Ib., 45.

But it is contended, that by the will of Andrew Weiant, the payment of the annual installments of the legacy became an equitable charge upon the real estate ; and that the statute of limitations is no bar to a suit in equity for the recovery of the legacy bequeathed to Emeline Carver. By the Code of Civil Procedure, the distinction between actions at law and suits in equity was abolished, and for all such judicial proceedings the civil action is a substitute. Formerly in this state statutes of limitation embraced only remedies at common law, and not those cognizable in equity. But now, the lapse of time sufficient to bar the remedy, whether of a legal or equitable character, must be determined by reference to the statutory mandate.

In seeking for the statutory rule of limitation applicable to the equitable charge under consideration, we cannot adopt the rule governing suits on mortgage liens. A mortgage is a conveyance of the legal estate, which in law would entitle the mortgagee to his action for the possession of the mortgaged premises. A civil action to enforce this equitable charge, we do not think, can be classed among actions barred in twenty-one years “for the recovery of the title or possession of lands, tenements or hereditaments.” A vendor’s lien perhaps bears a closer analogy to the equitable lien created by the testator’s will; and it has been held in New York and other states, that an action to enforce the equitable lien for the purchase money of land, is barred by the lapse of six years after the debt has accrued; that the debt is the basis or foundation of the lien, and with it the lien must stand or fall. Borst v. Corey, 15 N. Y., 505; Clyde v. Simpson et al., 4 Ohio St., 462.

We are aware that it has been held in England, that the statute of limitations is no bar to a suit in equity for the recovery of a legacy. But even in states where the provinces of law and equity are separate and distinct, if an action at law is allowed for the recovery of a legacy as well as a suit in equity, the statutory bar will operate in both tribunals. Souzer v. De Meyer, 2 Paige Ch., 577.

The devisee, in this case, by virtue of his acceptance of the provisions of the will, became personally liable to pay the legacy, on his implied obligation; and the statute law of Ohio enables a legatee to bring a civil action against an executor or administrator, for his or her share of the estate, upon a settlement, and order of distribution. Rev. Stats., § 6200.

Judgment affirmed.  