
    Mesick v. New.
    
      Devise of fee, by implication.
    
    Prior to the revised statutes, where lands were devised, without words of inheritance, a charge of legacies upon the property devised, did not enlarge the estate into a fee, by implication ; in order to have that effect, it must have been imposed upon the devisee, as a personal duty in respect to the devise.
    Appeal from the general term of the Supreme Court, in the third district, where a judgment entered upon a verdict in favor of the defendant had been affirmed:
    This was an ejectment by Peter Mesick to recover an undivided tenth part of an undivided half part of a farm in Columbia county. A similar action was brought by Joacim Mesick, which .was tried below, and heard on appeal, at the same time.
    Hendrick Mesick, the plaintiff’s father, died in 1802 seised of the farm in question under a perpetual lease, by his last will and testament, he disposed of the same, as follows:
    
      “ I give and bequeath unto my beloved wife, Mary Mesick, that she shall hold and possess all my real estate now lying in the town of Claverick, county of Columbia, as long as she is my widow. I also give and bequeath to my two younger sons, Henry and Ruliff Mesick, all that parcel of lands, &c. (describing the farm), containing about one hundred and fifty acres, more or less. I also give and bequeath to my sons, Peter and Joacim Mesick, the sum of three hundred and fifty dollars apiece, which said several legacies or sums of money I will and order shall be paid to the said respective legatees, within eight years after my decease, out of the real estate.”
    
      * iñAl *'J^Le testator left ten children, including the -* two plaintiffs. The widow retained possession of the farm, until her decease, in 1806, when Henry and Ruliff entered, and paid the legacies given to Peter and Joacim. The defendant deduced title under Henry and Ruliff.
    On the trial, the court, after admitting the defendant to prove (under exception) that the testator, Hendrick Mesick, died seised of no other lands than the farm in question, directed a verdict in favor of the defendant, in each of the cases, to which exceptions were taken; and the judgments entered upon the verdicts having been affirmed at general term, the plaintiffs appealed to this court.
    
      Monell, for the appellants.
    Pechtel, for the respondent.
    
      
       Under the revised statutes, words of inheritance are not necessary to pass a fee. 3 R. S. 38, § 1, 5th ed.
    
   *J^UGGLBS) C. J-

Where a direction to 165 1 -* a gross sum is imposed on a devisee, to whom land is devised indefinitely, without words of inheritance, he takes a fee (2 Powell on Devises 394), because, unless the devisee were to take a fee, he might, in the event, be loser by the devise, since he may die before he has reimbursed himself the amount of the charge. (2 Pow. 380.) But where the charge is upon the land, simply, it does not enlarge the devisee’s estate. In such case, the incumbrance attaches into whatsoever hands the lands may fall, and no ground exists for enlarging the estate. A charge on the land, as distinguished from a charge on the person, would not entitle the devisee to a fee. (2 Preston on Estates 243.) So, if a charge of a sum of money be in a distinct clause, without any direction, express or by construction, that the ^devisee is ^ ^ to be personally liable to pay the charge, a gift *- of the fee will not be implied. (Id. 243-4.)

The difficulty, in most cases of this description, is, in determining whether, by the testator’s language, the charge is on the land itself merely, or upon the devisee, personally, in respect of the land. Where it is on the devisee, in respect of the land, the devisee, by the acceptance of the devise, makes himself personally liable to pay the charge, whatever the value of the land may be; but where it is upon the land merely, the devisee is not so responsible. The land may be sold for the purpose of satisfying the charge, and the devisee will be entitled to the surplus, if any, but will not be liable for a deficiency ; he can be made responsible, at most, only to the value of the land, and, therefore, cannot be a loser, by accepting the devise. Where the devisee is directed in the will, to pay the charge, he takes an estate in fee, on the ground that the testator has imposed on him a duty, which requires that he should have an estate not determinable with his own life; but where the testator directs the charge to be paid out of his lands, without saying by whom, no such duty is imposed on the devisee, and the charge has no operation to enlarge his estate. (2 Powell 394, 382.)

In the present case, the legacies are charged upon the land, without any direction that they shall be paid, either by the widow or by the devisees in remainder, and the remedy of the legatees is against the land alone. According to the principles above stated, the charge does not enlarge the devise, without words of inheritance, into an estate in fee.

The acceptance of the devise and the entry upon the land, in a case of this kind, creates no personal liability on the part of the devisee to pay the legacy. No action at law can be maintained against him by the legatee, on this ground, without an express promise on his part, or the voluntary payment of a part, which is regarded as equivalent to an express promise to pay the residue. (Livingston v. Executors of Livingston, 3 Johns. 189-92; Becker v. Becker, 7 Id. 99; Van Orden v. Van Orden, 10 Id. 30; Kelsey v. Deyo, 3 Cow. 133; Lockwood v. Stockholm, 11 Paige 87.) The charge is upon the land simply, *and the incumbrance attaches to the land into -* whatsoever hands it may fall. There is no personal liability, in such case, in equity. (Olmstead v. Olmstead, 4 N. Y. 60.) A court of equity will compel payment out of the land; but if the land should be insufficient to pay, there is no case, showing that the devisee would be liable to make up the deficiency.

There are dicta to the effect, that by the acceptance of a devise of land, charged with the payment of legacies, the devisee becomes personally liable to pay them. But these are cases in which there was an express direction in the will that the devisee should pay (and such a direction constitutes a charge upon the devisee, in respect to the land devised, and enlarges an indefinite devise from a life-estate into a fee-simple); or cases in which the devise was on condition that the devisee should pay. The dicta referred to, may be found in Birdsall v. Hewlett, 1 Paige 32; Dodge v. Manning, 11 Id. 334, and 1 N. Y. 302; Harris v. Fly, 7 Paige 422; Glen v. Fisher, 6 Johns. Ch. 33; McLachlan v. McLachlan, 9 Paige 534.

There are cases from the English courts, which seem to be at variance with the principle before stated; one of them is Doe v. Richards, 3 T. R,. 356. The devise was as follows: “All the net residue and remainder of my messuages, lands, tenements, hereditaments, goods, chattels and personal estate whatsoever, my legacies and funeral expenses being thereout paid, I give, devise and bequeath to my sister, Jane Dewdney, and do hereby constitute and appoint her, whole and sole executrix of this my will.” The charge upon the lands devised was, in this case, held to enlarge the devise from a life-estate to a fee.

Mr. Powell (p. 386) says: “This case exhibits a remarkable instance of the erroneous application of a right principle. The judgment was rendered, on the ground that the payment of the debts was charged upon the devisee, whereas, the will merely required that they should be paid out of the land, and it was immaterial by whom. The authority of the case was denied by Chief Baron McDonald, in the subsequent case of Mellor v. Denn, in the House of Lords (2 Bos. & Pul. 252-3); *and Sir James Mansfield (Doe v. Clark 5. Bos. & Pul. *- 349) says, that the case of Doe v. Richards, when decided, surprised him much, for the words in the will there merely created a charge upon the estate.

In the case of Doe v. Snelling (5 East 87), Lord Ellenborough, speaking of the case of Doe v. Richards, says: “ The doctrine and principle of which is right, though, perhaps, the words to which it was applied will hardly sustain the application, as was considered by many of the judges on the decision of the case of Denn v. Mellor (2 Bos. & Pul. 247), in the House of Lords. That was a devise of lands, ‘his legacies and funeral expenses being thereout paid,’ and those words were held to carry the fee, being considered the same as if the devisor had said ‘ being by him (the devisee) thereout paid.’ And if those words had been added, the application would unquestionably have been right.” In Doe v. Snelling, lands were devised to George Snelling and Sarah, his wife, “ after having thereout first paid and discharged all my just debts and funeral expenses,” and it was adjudged, that the devisee took an estate in fee. This was on the ground, that the words “ after having thereout paid,” designated the devisees as the persons who were to pay, and created a personal charge upon them, in respect to the estate devised. Le Blanc, J., regarded these words as equivalent to saying, “ After they (the devisees) shall have thereout paid.” This decision, therefore, acknowledges and is founded upon the distinction between words which specify that the charge is to be paid by the devisee, and words which do not specify the devisee as the person to make the payment.

In Jackson v. Bull (10 Johns. 151), this distinction is recognised, and formed one of the grounds on which the judgment was rendered. In Spraker v. Van Alstyne (18 Wend. 205), the Chancellor said, the meaning of the expression, “ a charge upon the person, in respect to the lands devised” is, that the devisee is directed to pay the debts or legacies, personally, or to relinquish some other right, for the reason or because the testator has made the * 169 1 *^ev*se *° h™’ 80 if the devisee accepts J the devise, he impliedly assumes to pay the charge or submit to the loss. The devisee, in that case, was adjudged to have taken an estate in fee, under an indefinite devise, because the will contained a direction that all the testator’s debts should be paid by the devisee. The case of Barheydt v. Barheydt (20 Wend. 576), was decided on the same principle, and the distinction recognised.

The devise in the will in question is not, on condition that the devisee shall pay the legacies. The legacies are made a lien on the land, but the estate of the devisee is no more conditional, than if the lien were by virtue of a judgment.

“ It will be in vain,” said Chief Justice Kent, in Jackson v. Bull, 10 Johns. 153, “to look for uniformity and harmony of decision in this branch of the law. Cases may frequently mislead us by their misapplication of principle but it is our duty always to recall and adhere to principle, in opposition to any particular case.” The principle which must govern the present case is well stated in Powell on Devises, above referred to, and in 2 Jarman on Wills 172-73,1st Am. ed. The cases cited in those treatises fully support the doctrine contained in the text. The case of Gully v. Bishop of Exeter, 4 Bing. 290, is opposed to the general current of the English cases, and to the subsequent case of Doe v. Clark, 1 Crompt. & Mees. 39.

On the ground, therefore, that the will in question contained no direction that the legacies in question should be paid by the devisees in remainder; and that they were, therefore, charged on the land merely, and not on the devisee in respect of the land' devised, the judgment of the supreme court must be reversed, and a new trial ordered, with costs to abide the event of the suit.

Johnson, J.

The right of the plaintiff in each of the above causes, depends upon the construction of the will of Hendrick Mesick, who died prior to 1802, and whose will was executed March the 10th, 1801. If, under that will, Henry and Ruliff Mesick took a fee in the lands devised to them, then the judgment below *must be affirmed; if they did not take a fee, then, the plaintiffs are entitled to recover, and the judgments must be reversed, and new trials ordered.

The devising clause contained no words of inheritance, and, therefore, as the law stood when the will was made and the testator died, the devisees would take only a life-estate. It is, however, contended, that a subsequent clause of the will enlarges the estate devised into a fee; that clause is in these words: “ I also give and bequeath to my two sons, Peter and Joacim Mesick, the sum of three hundred and fifty dollars apiece, which said several legacies or sums of money I will and order shall be paid to the said respective legatees, within eight years after my decease, out of the real estate.”

It was proved, that the testator died seised of no other real estate than that devised to his sons, Henry and Ruliff; to the admission of this evidence, the plaintiff excepted. The determination of the question, presented by this exception, can only be material, in case we think the cause turns upon the point that, without the testimony excepted to, it would not appear that the legacies are charged upon the very lands devised, &c., is not within the rule, which requires that circumstance to exist, in cases where an estate is to be enlarged into a fee, by reason of a charge. We do not think this the turning point in the cause.

The cases of Harvey v. Olmstead, 1 N. Y. 483, and Olmstead v. Olmstead, 4 Id. 56, substantially dispose of this cause: “ The law never enlarges an estate, by implication, unless the devise imposes a charge upon the. devisee, in respect of the lands devised. When this is done, it takes from the devise the character of a gift, and turns it into a purchase.” Here, Henry and Ruliif are not directed to pay, nor does their acceptance of the devise amount to an undertaking on their part to pay. The payment is not imposed by way of condition upon the devise to them, but is a mere charge upon the land itself. The charge lacks all the circumstances which are necessary to convert the devise into a fee. It cannot be necessary again to examine the cases of Doe v. Richards, Denn v. Mellor, in England, and other cases from our own reports, all of which were critically looked into in Olmstead v. Olmstead. *The judgment of the su- -* preme court must be reversed, and a new trial granted; costs to abide the result.

Judgment reversed, and new trial awarded. 
      
       See Wright v. Page, 10 Wheat. 204 ; Abbott v. Essex Co., 18 How. 202 ; King v. Ackerman, 2 Black 408.
     