
    Dodge, appellant, agt. Manning and others, respondents.
    
      Questions discussed.
    
    
      1. Whether the legacy claimed by the appellant, and mentioned in the will of John I. Becker, deceased, was an equitable charge and lien primarily on the lands of the respondents, as purchasers claiming title under the will ?
    2. Whether the real estate, under a mortgage foreclosure, was purchased subject to the payment of the legacies, notice thereof having been given at the sale—and, therefore, should be charged in exoneration of the personal estate ?
    3. Whether it was necessary for the appellant, the complainant, to aver in the bill, and prove aii insufficiency of personal property to pay the legacies; and if such averment was necessary, whether the defendants should not have demurred !
    
    4. Whether a mortgagee has constructive notice that legacies are a charge on the premises mortgaged by the devisee, being obliged- to make title through the will of the testator ?
    5. Whether, although the devisee, one of the defendants, by accepting the devise, was personally liable for the complainant’s legacy, the lands were nevertheless charged, and under the circumstances, of the equities between the defendants, were first liable ?
    6. Whether there was any persona! estate in the hands of the devisee applicable to the payment of legacies ? And whether the answers aver any ?
    7. Whether the legacy of the complainant had been paid ?
    John I. Becker, of Middleburgh, county of Schoharie, and state of New-York, on the 14th of April, 1804, made and published his last will and testament, as follows :
    In the name of God, amen, I, John I. Becker, of Middle-burgh, county of Schoharie, and state of New-York, being weak in body, but of sound and perfect mind and memory, blessed be the Almighty God for the same; do, this fourteenth day of April, in the year of our Lord, one thousand eight hundred and four, make and publish this my last will and testament, hereby revoking and disannulling all former wills by me made, and allow this only as and for my last will and testament, in manner and form following, that is to say:
    
      First. I will that all my just debts be paid.
    
      
      Secondly. I recommend my soul to God who gave it to me, and my body to the earth, to be buried in a christian-like, decent manner, at the discretion of my executors hereinafter named.
    
      Item. I give and bequeath unto my daughter Caty, wife of Michael Borst, a certain piece or parcel of land, pasture and wood land, lying and being in the town of Middleburgh, between the- lands now in possession of John S. Becker, and the lands of the heirs of my brother, David Becker, deceased; said lands is part of lot number fifty-six, containing twenty acres, be the same more or less, according to a deed executed to me by my father, John H. Becker, deceased, in his lifetime.
    
      Item. I give and bequeath unto my beloved wife, Cornelia, all the remainder of my estate, both real and personal, of whatsoever name or nature the same may be, during her natural life ; and after her death, it is my will, and I give and bequeath unto my grandson, John Becker Borst, son of my daughter Caty, all. the property heretofore given unto my wife, that is to say, if he should be of age, if not, it is my will that my daughter Caty, heretofore mentioned, shall have the same until he, the said John Becker Borst, shall arrive to the age of twenty-one years, and then to be his, his heirs, and assigns forever.
    
      Item. Its also my will, that if said grandson, John Becker Borst, .should die before he arrives to the age of twenty-one years, or die without issue, that all the estate heretofore given to him, shall belong to my grandson, Peter, and brother of the said John Becker Borst, and to his heirs or assigns forever.
    
      Item. It is my will, and I give and bequeath unto my granddaughter, Cornelia, daughter of my daughter Caty, the sum of two hundred and fifty dollars, to be paid out of my estate by my grandson, John Becker Borst, one year after he shall arrive to the age of twenty-one years, and to her respective heirs and assigns forever.
    
      Item. It is my will, that my said grandson, John Becker Borst, pay unto my grand-daughter, Catharine, and sister' of his, the like sum of two hundred and fifty dollars, two years after he shall arrive of age, and to her heirs and assigns forever.
    
      Item. It is also my will, that my grandson, Peter Borst, shall have the sum of two hundred and fifty dollars, out of my estate, to be paid by my grandson, John Becker Borst, and to his heirs and assigns forever.
    
      Item. It is also my will, that my grandson, John Becker Borst, pay unto his brother, William Borst, the like sum of two hundred and fifty dollars, four years after he shall arrive at age, and to his heirs and assigns forever.
    
      Item. It is further my will, that if my grandson, John Becker Borst, should die as heretofore mentioned, and the estate fall into the hands of Peter Borst, as is mentioned, that in such case, he shall pay unto the legacies as John Becker Borst was to do.
    
      Item. It is also my will, and I give unt® my daughter Caty, if she should need the same, or be in suffering condition, a sufficient support during her life, out of my estate heretofore given to my grandson John.
    It is also my will, and I order that if the said John Becker Borst and Peter Borst, my grand-children, should both die without heirs, that my estate heretofore given them, shall be dividéd between my other grand-children, share and share alike, or their heirs.
    • Lastly. I do hereby nominate, constitute and appoint my beloved wife, Cornelia, and my son-in-law, Michael Borst, together with my trusty friend, Peter Swart, junior, my sole executors of this, my last will and testament, hereby revoking all former wills by me made, and allow this only as and for my last will.
    In witness whereof, I have hereunto set my hand and seal.
    John I. Becker, [l. s.]
    Signed, sealed, published and delivered by the above named John I. Becker, to be his last will and testament, in the
    
      presence of us, who have hereunto subscribed our names as witnesses in the testator’s presence.
    Barent Becker, her
    Rebecca JxJ Bowman, mark.
    Storm A. Becker.
    In February, 1835, Cornelia Dodge, one of the- legatees under the will, filed her bill in chancery against Ralph Manning, Alexander Boyd, Harmanus Becker and John B. Borst, for the payment of her legacy.
    The bill stated, that John I. Becker, in his life time, was seized in fee of divers messuages, lands, and tenements, of the value of $10,000; that he died in January, 1805, leaving his wife, Cornelia, and all the said legatees and devisees, him surviving. That Cornelia, the widow, died in February, 1832. That on the 8th of September, 1826, John Becker Borst and Marion, his wife, and Peter Borst, executed a mortgage to one George Maxwell, covering all the said real estate so devised to John Becker Borst, to secure the payment of $6,000 and interest. That on the 2d of July, 1834, all the said lands and tenements so mortgaged, were sold by and under a decree of foreclosure of said mortgage ; and that said premises were sold by parcels, subject to the payment of all the above mentioned legacies. And that said defendants respectively became purchasers of a parcel of said mortgaged premises, subject to the payment of said legacies. That said purchasers had taken • possession of their respective parcels of said premises. That complainant, by virtue of said will, was entitled to said legacy of $250, and interest for the same, to be computed from the 15th of September, 1821, being the expiration of one year from the time that the said John Becker Borst arrived to the age of twenty-one years. That she had, at several times, demanded payment of said legacy of said defendants, which they refused to pay; and praying that said defendants, or such of them as ought to do so, might be decreed to pay said complainant’s legacy, and the interest due as aforesaid, together with her costs and charges. And, that if necessary, that said premises, so charged with the payment of said legacies, or so much thereof as might be necessary, might be sold for the payment of said complainant’s legacy.
    The joint and several .answer of Ralph Manning, Harmanus Becker, and Alexander Boyd, admitted that said John I. Becker, at the time of his death, was seized of the lands and tenements mentioned in the bill; but that they did not exceed in value the sum of $7,000. Admitted the making and execution of the will; and that he gave thereby to complainant $250, to be paid out of his estate, by his grandson, John Becker Borst, one year after said John Becker Borst should arrive at the age of twenty-one years. Also, admitted that the testator gave, by his will, the other legacies to said several legatees as mentioned in the bill. Defendants denied that the legacies to Catharine Borst and William Borst were to be paid out of his estate. Admitted the death of the testator and his widow, as mentioned in the bill. Admitted the execution of the mortgage to Maxwell, as stated in the bill; and the foreclosure thereof, and sale in parcels to the defendants, as stated in the bill. But denied that said parcels were, or either of them was sold, subject to the payment of said legacies, or any, or either of them, or any part thereof. Had no knowledge or information, except from the bill, and what was thereafter stated in the answer, whether or not said parcels so purchased by said John B. Borst, was sold or purchased by him, subject to the payment of said legacies, or any, or either of them. But alleged that said John B. Borst, having accepted the devise and bequest so made to him by the testator, became personally liable for the payment of said legacies; and, if not paid, said legacies were an equitable lien upon so much of the said premises as might be owned, or have been purchased by said John B. Borst, and that the testator not having by his will made the legacies a charge upon said real estate, or any part thereof, so devised to said John B. Borst. And that said parcels, so purchased by the defendants, not having been purchased subject to the payment of the said legacies, were not subject to or liable for their payment. Denied that they were liable for the payment of said legacy, or any part thereof; or that the parcels of land so purchased by defendants, were subject to its payment.
    Ralph Manning, one of the defendants, admitted a demand made by complainant, for payment of said legacy 5 that he replied thereto, that he did not suppose that he was bound to pay it, but if he was bound, he would pay it.
    All the defendants denied any other demand of payment of said legacy.
    Defendants stated, that at or about the time of the sale of said mortgaged premises, and immediately previous thereto, the defendant John B. Borst, who was present, stated to the persons there present, and within the hearing of the defendants, but not to the defendants, or either of them particularly, that there were certain legacies that must be paid out of the said mortgaged premises. And that Peter I. Borst, who was also present at said sale, stated in like manner, at or about the same time, that there was a legacy coming to him which was to be paid out of the said mortgaged premises. Defendants alleged that it was stated, in reply to the said statements of John B. Borst and Peter I. Borst, as above set forth, by Marcus T. Reynolds, Esq., who, as defendants were informed and believed, attended said sale on behalf and as counsel for said George Maxwell, that said legacies were not a charge upon, or to be paid out of the said mortgaged premises, or to that import.
    Alleged that said mortgaged premises were sold by the said master, and purchased by defendants respectively, free, clear, unincumbered and discharged from said legacies, or any, or either of them, or any part thereof; and that the deeds executed by the master to the defendants respectively, were for the absolute sale and conveyance of said respective parcels, and not subject to said legacies or to the payment thereof, as by reference to said deeds would fully appear. That the decree under which said premises were sold, ordered and decreed the absolute sale thereof—not subject to the payment of said legacies, or any, or either of them, or any part thereof; and that the power of sale contained in said mortgage, authorized and empowered the said mortgagee to sell said premises absolutely.
    Defendants alleged that said legacy to complainant had been paid and satisfied by said John B. Borst, to said complainant, or to her husband, Daniel D. Dodge, in his life time.
    Defendants further answered, that they were informed and believed, and expected to be able to prove, that the said testator, John I. Becker, at the time of his death, was possessed of a large amount of personal property, consisting of horses, cattle, sheep, swine, implements of husbandry, household furniture, negro slaves and wearing apparel, amounting in value, as appeared by an inventory thereof, made and signed by Joseph Borst, jr., and Barent Vrooman, then deceased, appraisers, on the 20th of August, 1805, to $1,326.50.
    John Becker Borst, the other defendant, put in an answer admitting the facts charged in the bill.
    Depositions were taken—and the complainant introduced as the first witness, Cyrus Smith, as follows :
    On the second day of November, in the year of our. Lord one-thousand eight hundred and thirty-six, at the hotel kept by Cornelia Dodge, in the town of Middleburgh, county of Schoharie, before me, John C. Wright, an examiner in chancery for the county of Schoharie, appeared Cyrus Smith, a witness produced by the complainant in this cause, who, being by me duly sworn, says,—that he is thirty-six years of age, and resides in the town and county of Schoharie, and that he is under-sheriff of the county of Schoharie. On being interrogated by the counsel for the' complainant, whether he ■ was present when a sale was pretended to be made, under a mortgage executed by John B. Borst and wife, and Peter M.. Borst to George Maxwell, in the summer of the year 1834; the counsel for the defendants objects to the question ; and I decide that the same may be put, subject to the objection. The witness, in answer to said question, says, that after Mr. Gibson had put up the property for sale, and had given the boundaries of’ the several pieces of land to be sold, Mr. Peter I. Borst notified those present, that there was a claim under a will, and that those who purchased would have to pay it to Mrs. Dodge, Mrs. Borst and William Borst. Witness is now certain that Mr. Peter I. Borst said they were legacies which were due, and that the legacies were due under the will of one John Becker, in whose name there is a middle letter, thinks it is B, but cannot state certainly. The amount of the legacies was stated at the time ; and witness thinks that two hundred and fifty dollars to each, was the amount, but he will' not state certainly ; thinks that Mr. Borst also stated that interest was claimed on the legacies. The defendants, Ralph Manning, Harmanus Becker, Alexander Boyd and John B. Borst, were present at this time. At the time of the sale, a Mr. David Shafer, who was present, inquired of Mr. M. T. Reynolds, who was present, as the solicitor for the complainant, (Maxwell,) whether he would indemnify against the payment of the legacies chargeable on the premises; that Mr. Reynolds replied, that he would not. indemnify, but he did not believe it would cost as much to indemnify, as he had been offered, to plead a bastardy cause on his way up from Albany. The witness further states, that Mr. David Shafer bid upon the property which was then about to be sold, and ceased to bid about the time that Mr. Reynolds said he would not indemnify, and that Shafer said that he would not bid higher for the farm than what he had bid, and run the risk of the, legacies. Witness is not certain, whether Shafer bid after, the statement made by Mr. Reynolds ; that Shafer had bid to a considerable amount, and nearly to the amount at which it was sold. The Mrs. Borst spoken of, as entitled to a legacy, was the wife of Peter I. Borst.
    Cyrus Smith.
    On being cross-examined by the counsel for the defendants, the witness, further states, that he understood, from what Mr. Reynolds said at the sale, that he, Mr. Reynolds, Hid not consider the legacies as a charge; he spoke very lightly of them.
    Cyrus Smith.
    On being further re-examined by the counsel for the complainant, the witness further states, that Mr. Reynolds said he would not indemnify against the legacies ; that he treated them lightly.
    Cyrus Smith.
    
      
    
    J. C. Wright,
    
      Examiner in Chancery.
    The complainant thereupon introduced, as witnesses, Peter -M. Borst, Peter Swart, jr., Joseph I. Borst, Freeman Stanton, William I. Borst, Jacob Becker and Alexander Borst, who respectively were present at the sale, and corroborated the testimony of Cyrus Smith, in reference to the notice given of the legacies, by Peter I. Borst, and as to what M. T. Reynolds, Esq., replied in answer to the question, whether he would indemnify against the legacies, &c. Joseph I. Borst stated, that he was deterred from bidding upon the premises, in consequence of the legacies. Alexander Borst stated, that some time after the sale, he went with Mrs. Dodge, the complainant, to Mr. Manning, one of the defendants, and she demanded of Manning payment of her legacy; that Mr. Manning refused to pay, and said it would have to be tried or contested. The complainant produced exhibit A., which was a certified copy of the bill filed by George Maxwell, for the foreclosure of his mortgage on said premises ; and exhibit B., a copy, of the will of John I. Becker, with letters testamentary thereon.
    The defendants, Manning, Becker and Boyd, introduced testimony, and Samuel B. Wells was first called as a witness, as follows:
    On the third day of November, one thousand eight hundred and thirty-six, at the hotel kept by Cornelia Dodge, in 'the town of Middleburgh, county of Schoharie, before me, John C. Wright, examiner in chancery, appeared Samuel B. Wells, a witness produced by the defendants, Ralph Manning, Harmanus Becker and Alexander Boyd, who, being by me duly sworn, testifies and says,—that he is forty years of age, that he resides in the town of Middleburgh, and is by profession a physician ; that he was present two years ago, just before harvest, at a sale made by Alexander C. Gibson, of premises belonging to John B. Borst. The master gave notice that the sale would "take place. Mr. Peter I. Borst then rose, and gave notice that the estate was charged with some legacies, and that the purchasers must expect to pay those legacies; some conversation then took place between said Borst and Mr. Reynolds, in relation to the legacies ; Mr. Reynolds remarked, that he did not consider the estate as charged with the legacies ; and that he was offered five dollars for pleading a bastardy suit on his way from Albany, and that he would not give that for all the legacies. " Witness was present during the whole sale; witness does not recollect anything further that was said; if Reynolds, at the sale, had said audibly that the premises were sold subject to the legacies, witness thinks he would have heard it.
    Samuel B. Wells.
    And the said Samuel B. Wells, on being cross-examined by the counsel for the complainant, further testifies, and says,— that he does not recollect, distinctly, all the conversation that took place at the sale between Mr. Reynolds and others. At the time Mr. Peter I. Borst gave notice of the legacies, it produced some' excitement, and two or three persons were talking at a time; and witness does not recollect all that was said; thinks that Peter I. Borst said that some of the girls §.nd his wife were entitled to the legacies ; whether he mentioned any other name, witness cannot say; that his (Borst’s) wife was one of the girls who were entitled to the legacies; does not recollect that anything was said as to the amount of the legacies.
    Samuel B. Wells.
    
      
    
    J. C. Weight,
    
      Examiner in Chancery.
    
    The defendants thereupon introduced, as witnesses, William Holton, Elisha Durham, James Henry, Hezekiah Manning, Merriman Preston, Henry Hamilton and Alexander C. Gibson. The witnesses, Holton, Durham and Gibson, corroborated the testimony of Samuel Wells, in reference to the proceedings at the sale. Gibson was the master who made the sale, and he stated that there was considerable conversation between the parties about the legacies at the time of the sale, which were alleged on- the one side to be chargeable on the land, and denied on the other; that the property was sold absolutely, as he understood. There was no reservation in the written terms of the sale, produced by witness, as master; and no reservation in the deed executed by him. The persons -who spoke of the legacies were not, as witness thought, parties to the suit, but persons present who appeared to have some interest in the sale. The counsel for complainant objected to the above evidence, in relation to the writing called “ terms of sale,” and the deed given by witness. Evidence allowed, and questions reserved for the opinion of the court.
    The witness, Manning, stated that, in the lifetime of Daniel D. Dodge, the husband of the complainant, and two or three years before his death, witness had a conversation with him ; Dodge wanted to sell witness his interest in a twenty acre lot— an interest he claimed in right of his wife—and of which lot witness had taken a lease ; witness said that he did not want the interest of Dodge in that lot, unless he could get the whole; witness stated to Dodge, that he had better sell his interest to John B. Borst, as he had understood that Borst had bought out most of the heirs. Dodge stated that he did not wish anything to do with John, as he had settled off with him. Something was said by witness to Dodge, in relation to the demand due from John to him, Dodge. Dodge replied, that he had settled all his demands with John, and did not wish anything to do with him. Witness had reference, in the conversation with Dodge, to the legacy due to his (Dodge’s) wife, and believed he so expressed himself; that Dpdge understood him as referring to that demand. Witness lived near to Dodge at that time, and at the time of his death ; witness had lived near Dodge for about fifteen years previous to his death. Witness, in answer to a question, stated that Dodge and John B. Borst had difficulty, but for what length of time, witness could not say. It was considered that they "were not on very friendly terms. Did not know what Dodge’s circumstances were, but understood he was in debt; he built a house, two story building, which he occupied, previous to his death, as a tavern, and was then occupied by his widow, the'complainant.
    The witness, Merriman Preston, stated that he understood that Dodge was in debt; thought he had not -a great amount of property in his hands. Dodge and John B. Borst, while witness knew them (some fifteen years) lived neighbors to each other; they were not on very good terms some part of the time. Dodge had been building previous to his death.
    The witness, James Henry, stated that William M. Borst, brother of complainant and John B. Borst, and one of the legatees, had more than once told witness that John B. Borst had paid, and more than paid the amount of the legacy to him, and that he, William, was still owing his brother John.
    The said defendants then produced exhibit A—an exemplification of the mortgage given by John B. Borst and wife, and Peter I. Borst to George Maxwell. Exhibit B.—a copy of a notice, given by defendants solicitor, of the examination of witnesses. Exhibit C.—copy of an inventory of the goods and chattels of John I. Becker, deceased, made up to the 20th of August, 1805, amounting to $1,326.50.
    The cause was heard on pleadings and proofs, before Hon. John D. Willard, vice-chancellor of the fourth circuit, who, on the 24th of October, 1838, after an elaborate opinion, decided, that the legacy was a lien on the realty, and that the defendants, Manning, Becker and Boyd, knew that the complainant had this claim at the time they purchased. It was publicly announced in such a manner, and by such a person, as lead to inquiry. They made inquiry of Mr. Reynolds, and he refused to indemnify them. It is true, he spoke lightly of the claim. But, it shows they knew of the claim, and of course bought at their peril. Other bidders were deterred from bidding. It is presumed, the amount of the legacies was considered in the purchase. It was not necessary for the master to announce it, nor to have referred to the legacies in the deed given by him. The proof is most full and satifactory, that the legacy of the complainant was known by the purchasers at the sale. They must, of course, bear the expense of it, in proportion to their respective purchases. There must be a reference to a master to compute the amount due on the legacy, computing interest from one year after John B. Borst became of the age of twenty-one years; and to ascertain the amount of the purchase of each defendant, under the mortgage foreclosed in the pleadings mentioned, and to apportion the amount of said legacy among the said defendants, according to their respective bids on said sale, and on the coming, in and confirmation of the said report, the complainant have execution, &c.
    On the 6th of September, 1845, the Chancellor dismissed the bill of the complainant, as to the defendants, Manning, Becker and Boyd, with costs; and decreed that the complainant recover against the defendant, John B. Borst, the amount of the legacy, with interest, from the 15th September, 1821, and also her costs. .
    It was further decreed that said legacy was made, by said will, a specific charge and lien on the premises devised therein to the defendant, John B. Borst, and that the same, together with the costs of the complainant, remained -a charge and lieu on that part of said premises, devised to said John B. Borst, which -were purchased by said Borst at the master’s sale.
    
      The complainant appealed from the decree of the chancellor.
    
      Platt Potter, attorney, and
    N. Hill, jr,, counsel, for appellants.
    
      First. The complainant’s legacy is an equitable charge on the lands devised to John B. Borst, and "the charge binds and is a lien on the lands in the hands of the defendants.
    The testator gave and bequeathed all the remainder of his estate, both real and personal, to his wife during life, and after her death, he gave and bequeathed the same to his grandson, John B. Borst, in fee ; he then gave the complainant a legacy of $250, “ to be paid out of (my) his estate, by John B. Borst, one year after he (shall) should arrive at 21.” (Harris v. Fly, 7 Paige, 421; Alcock v. Sparhawk, 2 ‘Vernon’s Ch. R. 228; Clowdsly v. Pletham, 1 Vernon’s Ch. 386, yr. 1686; Aubrey v. Middleton, 2 Eq. Case Ab. 497, case 16; Elliot v. Hancock, 2 Vernon’s Ch. 143, yr. 1690 ; Syphet v. Carter, 1 Ves. Sen. 499 ; Hassell v. Hassell, 2 Dickens’ Ch. R. 527, yr. 1776 ; 2 Story’s Eq. 493, 494, §§ 1246, 1247, and note 2, to p. 494; Glen v. Fisher, 6 John. Ch. 38.)
    
      Birdsall v. Hewlett, (1 Paige, 32.) Legacies are an equitable charge' on the land, although the devisee, by accepting the devise, becomes personally liable. (1 Paige, 408; 1 Roper on Leg. 452; Henville v. Whitaker, 3 Russ. 343 ; Dover v. Gregory, 10 Simon, 393 ; Graves v. Graves, 8 Simon, 54; Kelsey v. Deyo, 3 Cow. 141.)
    The estate for life of the widow, in the real and personal estate, was exempt from the charge of the legacies. The personal, as well as the real estate for life, was exonerated ; this was the intent of the testator.
    Real estate may be generally charged with debts and legacies, with exception of a particular interest, limited in the whole or part of the estafe, where the intention of the testator is clear in favor of such exemption. (1 Roper on Leg. 453 ; Birmingham v. Kerwan, 2 Scho. & Lef. 444, 448 ; Pr. Ld. Redesdale.)
    
      Where the real estate is combined with the personal, and both are made to constitute one fund, the former will be liable to all the burdens of the latter. (Bench v. Biles, 4 Mad. Ch. 187 ; 1 Roper on Leg. 450 ; Kidney v. Coussmaker, 1 Ves. Jr. 436 ; 2 Ves. Jr. 257; Carey v. Carey, 2 Scho. & Lef. 188; 1 Roper on Leg. 452 ; Webb v. Webb, Barnard R. 86 ; Harris v. Fly, 7 Paige, 421; 1 Roper on Legacies, 452, 343, 450 ; 2 P. Wms. 188.)
    Reason why pecuniary charge - on personal estate, because common law favors heir—and so of devisee. ”@¡$1
    
      Second. The legacies must be paid out of' the real estate, in exoneration of the personal, (if any,) as the former was purchased subject to the payment of the legacies, (notice having been given at the sale,) and at a diminished price in consequence thereof.
    
      Third. And as John B. Borst united in the notice at the 'sale, the real estate is now the primary fund for the paymfent of the legacies, and the personal estate is exonerated and discharged. (1 Roper on Leg. 463 ; 1 Roper on Leg. 466, 470 ; Samuel v. Wake, 1 Bro. C. C. 144; Hartley v. Hurle, 5 Ves. 540 ; Merv. 236 ; Greene v. Greene, 4 Mad. Ch. 148 ; Burton v. Knowlton, 3 Ves. 107, 109 ; 1 Roper on Leg. 474, 484; 1 Bro. C. C. 462; 4 Ves. 823 ; 9 Ves. 454 ; 1 Merv. 219, 220 ; 7 Paige, 421; 2 John. Ch. 614; 3 Mad. 56 ; Eber v. Fisher, 6 J. Ch. 33.)
    As between the complainant and these defendants, the ordinary questions, which is the primary fund, and which the secondary fund for the payment of these legacies, or which fund is to be first applied in payment; and which, if either, is .auxiliary to the other, do not arise in this case.
    If there had been any personal fund, which came to the hands of the devisee, applicable to the payment of these legacies, as between certain parties, viz.: a bona fide purchaser of the real estate without notice, and John B. Borst, or his personal representatives, or perhaps the legatee, or as betweén the heirs at law and personal representatives of John B. Borst; these questions might have arisen, and in such cases no doubt the personal estate must have been first applied.
    But here, if the personal estate formed any part of the charged, blended fund, (real and personal,) the blended fund belonged to John B. Borst, and he chose (he had a right to do so,) to cast the whole burden on the real estate, (one part of the fund.)
    At the sale, Borst was present when the notice was given ; and at one time gave the notice himself, (answer, fol. 56,) that the legacies were a charge on the real estate, and he assented to the notice of Peter I. Borst, that they were to be paid out of the real estate. The defendants purchased with this notice. They, therefore, purchased subject to the payment of these legacies, as clearly as if they had taken a conveyance, expressing, on its face, that it was subject to them.
    The owner of real and personal estates may stamp on them what nature he pleases. As where a man purchases land subject to a mortgage, he may, or he may not, as he pleases, adopt the mortgage debt as his own, so as to subject his personal assets to the burden of discharging it in exoneration of his real estate. (1 Roper on Leg. 495, 489.)
    
      Fourth. There was no personal estate in the hands of John B. Borst, applicable to the payment of the legacies. The answer avers none. It avers, merely, that John I. Becker was, at the time of his death, possessed of personal property, consisting of horses, cattle, sheep, swine, implements of husbandry, household furniture, negro slaves and wearing apparel. The answer (fol. 63,) does not aver, that any of this property remained at the death of the widow. She had a life estate in it, which was exempt from the charge. The inventory of the testator’s personal property is proved. From that, it will be seen that there could have been no personal estate, of any value, at the death of the widow'. The slaves became free in 1824 or 1825. The horses, cattle, sheep and swine, were worn out and dead. The increase did not go to the remainder-man. The implements of husbandry, after a use of 27 years, must have been worn out and valueless. Same as to the household furniture and wearing apparel. And out of this property, the funeral expenses and debts were to be paid. The proofs, therefore, show a deficiency of personal estate to pay the legacies.
    The allegation in the answer is insufficient, as to personal estate. It should have averted, and the defendants should have proved, that personal property came to possession of John B. Borst. It was not necessary to aver in the bill an insufficiency of personal property. If such averment was necessary, the defendants should have demurred. Again, the answer does not aver that the testator died possessed of personal estate sufficient for the payment of his debts, or that any remained after the payment of the debts, toe be applied to the payment of these legacies.
    Fifth. It was not necessary to give Maxwell notice of the charge. He was only a mortgagee. His mortgage was merely a specific lien—a security for a debt. The property mortgaged was subject to the legacies. It was an adequate security for Maxwell’s debt. But he had .constructive notice that the legacies were a charge, being compelled to make title through the will of John I. Becker; and the defendants had both actual and constructive notice of such charge. A purchaser deriving title through a will, and thereby having constructive notice of its contents, takes the estate devised subject to the equitable claims of legatees, where the legacies are by the will charged on such estate. (Harris v. Fly, 7 Paige, 427.)
    The defendants, however, have not set up, in their answer, that Maxwell was a bona fide mortgagee, without notice of the equitable claims of the legatees. This was necessary to protect themselves as bona fide purchasers. (Harris v. Fly, 7 Paige, 421.) ,
    
      Sixth. Although the defendant, John B. Borst, by accepting the devise, is personally liable to complainant, the lands are nevertheless charged, and the complainant can, and, under the circumstances, is obliged to resort to them first for payment. The equities, as between J. B. Borst and the defendants, require that the lands should be first resorted to. (See authorities before cited.)
    
    
      Seventh. The defendants, having had notice of the legacy, are liable to the payment of the legacy, with interest and costs. Refusing to pay when called on, subjects them to costs. (Fol. 50 to 53, and fol. 120 to 123.) And such costs are a charge on the real estate. (1 Paige, 32, 407.) Interest is payable ' on a. legacy from the time it is due ; and where the legacy is a charge on real estate, the interest is a charge also. The answer (fol. 47,) admits that the legacy, (if not paid,) and interest thereon, from the end of one year after J. B. Borst came of age, is due to the complainant. Interest on a legacy is payable, although not demanded. Costs also are recoverable, although there has been no demand. (Glen v. Fisher, 6 John. Ch. 38 ; Freeman v. Simpson, 6 Simon, 75.)
    
      Eighth. There is no evidence of the payment of the complainant’s legacy.
    1. H. Manning is the only witness on the subject of payment. (Fol. 206 to 212.) He swears only to the declarations of the complainant’s husband. These, if admissible in evidence, do not make out payment. The whole evidence consists of declarations of Dodge, “ that he had settled oif with John B. Borst.” The legacy of complainant was not mentioned during the conversation. (Fol. 212.) It was, therefore, only the inference of the witness, that Dodge referred to the legacy. This conversation was two or three years before Dodge’s death. (Fol. 207.) Dodge died four or five years previous ,to November 30, 1836. (Fol. 213.) The conversation must, therefore, have been previous to the death of testator’s widow. She died 15th of February, 1832. (Fol. 41.) And it was before the time the parties had reason to suppose, and probably did suppose, that the legacy was to be paid; which was at the death of the widow; as John B. Borst was to pay it out of the estate. And he could not well pay it out of the estate before he came into the possession of such estate. There is, therefore, no reason to suppose that Dodge, in the settlement to which he alluded, referred to the legacy due the complainant.
    This legacy Dodge could not have received, if the complainant objected, without making a provision for her. (5 John. Ch. 196; 7 Paige, 633 ; 4 Paige, 64; 2 Kent Com. 139 ; 2 Story Eq. Juris. § 1414; 6 Paige, 366; 6 John. Ch. 25; 5 John. Ch. 464.)
    It is improbable that John B. Borst should pay this legacy, before he received the property out of which it was to be paid. And, it is improbable that Dodge should have claimed it before that time. Dodge had no right to collect it without his wife’s consent. He could not have maintained an action at law for it; the legacy being a charge on both real and personal property. (6 Cow. 333.) The admission, by John B. Borst, in his answer, that this legacy is still due, confirms the position that the legacy has never been paid.
    2. But the declarations of Dodge are inadmissible in evidence against the complainant. They were objected to. (Fol. 207.)
    Husband and wife cannot be witnesses for or against each other. (1 Phil. Ev. 77 ; 2 Cow. fy H. notes, 1554.) A wife cannot, after her husband’s death, disclose his conversations! (2 Cow. Sr H. notes, 1555 ; 7 Vern. R. 537 ; Peake cases, 219, 221.)
    A widow cannot be asked to disclose conversations between herself and her late husband. (Boker v. Hasler, 1 Ryan and Moody, 198; per Best, C. J.) A woman, after a divorce, cannot testify to conversations with her husband, during the existence of the marriage. (Munsal v. Twisleton, Peake Ev. App. 44:; per lord Alvanley.) So, where wife is a sole party, claiming in her own right, and under right paramount to her husband, his admission is not evidence against her, although made during .coverture. (Smith v. Scudder, 11 Ser. & Rawle, 326.)
    Evidence of declarations of a party, is to be scrutinized and received with caution- (Law v. Merrils, 6 Wend. 268; per Chancellor.)
    
      3. The demand of the legacy, when the bill was filed, was not a stale demand. The bill was filed within three years after the death of the testator’s widow. The answer sets up neither the staleness of the demand, nor the statute of limitations. There is no presumption of payment from lapse of time. (2 R. S. 301.) Neither lapse of time, nor the statute of limitations, would bar the complainant’s right to recover her legacy; she having been a feme covert until November, 1831 or 1832. (Fol. 213 ; 1 Paige, 616.) There was no statute of limitations to a charge on real estate until 1830. (7 John. Ch. 115; 2 R. S. 302.)
    
      Ninth. The quantity and value of the several portions of the land charged with the legacy owned by the defendants, and the amount of the personal estate (if any) applicable to the payment of the legacy, may be ascertained on a reference, and a proper decree made on the coming m of such report.
    
      Tenth. Even if the personal estate (if any) is the primary fund for the payment of. the complainant’s legacy, the defendants, Manning, Boyd and Becker, as owners of portions of the real estate charged with the legacy, are proper and necessary parties, to the end that the real estate owned by them, may be resorted to for the payment of any deficiency which may remain after applying, in payment of the legacies, all the personal estate; which deficiency can be ascertained on a reference. When a bill is filed to recover a legacy charged on both personal and real estate, all the owners of both the personal and real estate should be made parties, in order that the different classes and portions of such estate may be resorted to for payment of the legacy in the order in which the same are by law charged. The bill should not, therefore, have, under any circumstances, been dismissed with costs.
    jg@T 11 Serg. $ R. 326 ; 1 Greenl. Ev. § 200; 6 W. 277. Reply—16 J. 201.
    
      Woodruff & Young, attorneys, and
    
      Wm. A. Young & M. T. Reynolds, counsel, for resp’ts.
    
      
      First. The legacies mentioned in the will of John I. Becker, deceased, if charged by him upon the real estate devised to John B. Borst, .are so charged in aid of the testator’s personal estate, which is first liable to pay them.
    The general rule, as to the fund out of which legacies are to be paid, is well settled. (Ward on Leg., vol. 18 of Law Lib., p. 323, and cases there cited.)
    
    
      (Ram on Assets, vol. 8 of Law Lib. pp. 58, 94.) A difference upon principle, between words charging lands with debts, and words necessary to create a charge of legacies, is recognised. (Id. p. 96, et seq.)
    
    Under this point, see, further, Lupton v. Lupton, 2 Johns. C. R. 628; Case, f61. 272—Opinion of the Chancellor.
    The testator’s personal property was appraised at $1,326.50. (Case,fol: 244.)
    At the. time of his death, it does not appear that he owed any debts ; and no attempt has been made to show a decrease in the value of testator’s personal estate. .
    The law by which a portion of the personal estate was set off to the widow and infant children, was passed in 1824. (Sess. Laws, 1824, p. 32, ch. 44.)
    
      Second. The defendant, John B. Borst, having accepted the devise and bequest made to him by the testator, became liable, personally, for the payment of said legacies. And he having mortgaged the lands devised to him absolutely, and not subject to the legacies, the respondents ought not to be made liable to pay the legacies or any part thereof, so long as said John B. Borst is able to pay them.
    See Glen and Wife v. Fisher, (6 Johns. Ch. R. 34, 35.) John B. Borst borrowed money of Maxwell, the mortgagee, upon the assurance that the lands were unincumbered. (See case, f61. 161.)
    Besides, he admits all the allegations in the complainant’s bill. (See his answer, passim.)
    
    
      Third. The respondents, having purchased the premises in question under a foreclosure of the mortgage executed to George Maxwell, acquired the same rights that the mortgagee would have acquired, (had he become the purchaser.)^ There is no proof that Maxwell, at the execution and delivery of the mortgage, had notice that the legacies were equitably charged upon the lands mortgaged to him; and his rights could not be affected by notice subsequently given.
    Maxwell was assured by John B. Borst, and Peter M. Borst, one of the legatees named in the will of John I. Becker, at the time the mortgage was given, that the lands were free of incumbrances, except the estate in dower of Mrs. Becker, in one parcel. Upon this assurance he was authorized to rely. (See case,fols. 161,162; appellant’s exhibit A.)
    
    
      Fourth. The legacy bequeathed to the appellant, by the" testator, John I. Becker, has been paid, either to the husband of the appellant, in his lifetime, or to the appellant herself, before the commencement of this suit.
    The testator died-in January, 1805. (Fol. 40 of case.) The legacy in question became payable in September, 1821. (Fol. 25 of case.)
    
    Daniel D. Dodge, the husband of the appellant, died in 1833, or thereabouts. (Fol. 95 of case, also, fols. 110, 213.)
    " The appellant’s husband, for some time previous to his death, was owing debts. He had been building a short time before his death. (See case,fols. 210, 214, 204.)
    1. As a matter of presumption, the interest and convenience i of the appellant’s husband, would have induced him to collect the amount of the legacy bequeathed to his wife.
    2. John B. Borst, for aught that appears to. the contrary, ever since the legacy became due, has been able to pay the same. At all events, payment could have been compelled in chancery, out of his interest in the estate devised. (See the Chancellor’s opinion ; case, fol. 277.)
    3. There is evidence sufficient to prove payment of the amount of the legacy to the husband of the appellant, in his lifetime. (Vide deposition of H. Manning. Case, fol. 207 to 212.)
    Besides, it is proved that the legacy bequeathed to William M. Borst. which became due subsequently to that given to the appellant, had been paid. (Vide case, fol. 200 to 203, also, fol. 118.)
    So also of the legacy to Peter M. Borst. (Vide complainants exhibit A., fol. 161 of the case.)
    
    4- These presumptions, and the evidence referred to under this point, are confirmed by the answer of John B. Borst, and the circumstances under which it was put in.
    His answer is without oath, though a sworn answer is called for in the bill. (Compare fol. 27 of case with fol. 78.)
    It admits all the allegations in the bill, and was drawn under the direction of the appellant’s solicitor. (Vide case, fol. 217 to 221.)
    ' Fifth. The decree of the chancellor is not erroneous, and should be affirmed.
    The decree provides for the payment of the appellant’s legacy, by J. B. Borst. No appeal lies from the decree in respect to costs only. (Rogers v. Holley, 18 Wend. 350.)
    
      M. T. Reynolds, same side. (2 P. 122.) "UBS.
   Decision.—Ordered, adjudged and decreed, that so much of the decree of the court of chancery as dismisses the complainant’s bill, as to the defendants, Ralph Manning, Harmanus Becker and Alexander Boyd, with costs to those defendants, be reversed and annulled. And it is further ordered, adjudged and decreed, that the complainant’s legacy is a specific lien and charge on all the premises mentioned in the bill, as having been devised to John B. Borst, including the lands which were purchased by said Manning, Becker and Boyd, respectively, at the master’s sale mentioned in the pleadings. And it is further ordered, adjudged and decreed, that after the complainant has exhausted her remedy against the said John B. Borst, under the decree made by the chancellor, if any deficiency shall remain of the debt and costs decreed to be paid by said Borst, the same is hereby declared to be a lien and charge on the lands purchased by the said Manning, Becker and Boyd respectively ; and that the same- be sold to satisfy the said charge.

For affirmance—Jewett, Ch. J., and Bronson, J. All the other judges for the above order.

Note.—Guay, J., delivered the opinion of the court, and held, that no presumption of payment of the legacy could be derived from the lapse of time. Although the legacy became payable m one year after John B. Borst attained his majority, which was in 1S20, yet the will directed it to be paid out of the estate given to him. And, by the provisions of the will, John B. Borst was not to have the estate, until the death of his grand-mother, the testator’s widow, which did not occur until 1832. The legacy, therefore, did not become due until the latter period; and it was not pretended that the time which elapsed between that period and the filing of the bill, would warrant a presumption of payment.

The legacy, by the provisions of the will, became an equitable charge upon all the real estate devised to John B. Borst, of which that purchased by the respondents respectively, at the master’s sale, was a part. But the devisee, by accepting the real and personal estate devised to him, became personally liable for the payment of the legacies. He was, therefore, primarily liable, and the remedy should first be exhausted against him, and the real and personal estate of the testator remaining in his hands, before the respondents should be charged in respect to the real estate purchased by them. If they purchased expressly subject to the payment of the legacy, that, of itself, might have made the estate in their hands directly and primarily chargeable. But the evidence did not justify the inference that they purchased in that manner. They merely had notice of the existence of the legacy.

Therefore, held, that the decree be made as«above stated.

Jewett, Ch. J., was of opinion that the decree of the chancellor should be affirmed, because, the complainant had failed to present, by her bill, such a case as would entitle her to a decree to enforce her lien, as against the devised premises in the hands of Manning, Becker and Boyd, in the event that she did not obtain satisfaction under a decree against Borst, and for the sale of that portion of the premises still remaining in his hands, on the ground that it did not appear but that the personal estate still remained in the hands of the executors, which might be reached and applied upon or in satisfaction of her demand.

If the bill showed that the personal estate had been exhausted in the course of administration, or that the persons who were accountable for it were not responsible, or that it had been accounted for and paid or delivered to Borst, or if the executors, in whose hands the same remained, were parties to this suit; in either case the complainant might have resorted to the lands of the respondents for payment of her legacy, or such portion as should remain unpaid, after exhausting her remedy against said John B. Borst.

Reported 1 Comstock, 298.  