
    Dewitt and Wife against Schoonmaker and others, executors of Schoonmaker.
    Ir) an rac(ion against executors for a legacy, the plaintiff must allege in his declaration, and prove, that the executors, at the time of bringing the action, had sufficient as-seis to pay the debts and legacies. The testator de-vlsec* a1^his estate, real and personal, V1'*1'8 w,lfe life, and in • mainedV*" death, ormar-ria£e’ *°llis son,-charge** able with the f^afy 0f 750 dollars to his daughter; whether an action for the legaey will lie against the excutors, quere.
    
      This was an action of. debt,, brought to recover a legacy of seven hundred and-fifty dollars, bequeathed by the testator to his daughter Greetje, one of the plaintiffs.
    The declaration stated, that the widow of the testator died in February, 1804, and that there was' personal estate sufficient to discharge the legacy. The defendants pleaded nil debet. In that part of the will on which the present suit was brought, is as follows “ I give and bequeath unto my dear .beloved wife Jannetie, the sole use of my whole estate, real and personal, whatsoever and 1 1 • , „ wheresoever, during the. term of her natural life, or so Jong as she remains my widow, and no longer. Also, I give, devise, and bequeath unto my son Jacob, after the decease of my'said wife, or marriage, which shall first happen, all my real estate, situate, lying, and being in the township of Rochester aforesaid, or elsewhere, to hold to him and the said Jacob, his heirs and assigns for ever. ^ And also I give and beqeath to my said Jacob, his heirs, executors, administrators or assigns, after the decease of my said wife, or marriage, which shall first happen, my whole personal estate, he paying for the same to my daughter Greetje, the sum of three hundred pounds, current, lawful money of the state of New-York, to be paid to her within one year after my said wife’s decease or marriage, which shall first happen. And I do hereby devise my estate which I have herein above devised and bequeathed to my said son Jacob, chargeable with the payment ofthesame. And also I give and bequeath unto my said daughter, Greetje, the sum of three hundred pounds, current, lawful money of the state of New-York, aforesaid, to be paid unto her, or her heirs, executors or administrators, by my said son Jacob, as is above ordered and directed.”
    It was admitted at the trial, that one year elapsed after the death of the testator’s widow, before the suit was commenced, that a bond in due form had been tendered and-filed according to the directions of the act; (Laws of N. Y, voL l.p. 539.) and that at the time of the death of the widow, there was left personal estate of the testator sufficient to have paid the said legacy, if the executors were authorised and bound to haVe taken and applied the same to the payment thereof.
    The defendant’s counsel objected, that the action could not be sustained against the executors, but should have been brought against Jacob P. Schoonmaker, the devisee, and prayed that.the plaintiff might be nonsuited. It was then agreed that a verdict should be taken subject to the opinion of the court, on a case containing the above facts:. and that if the court should be of opinion that the action could .not be sustained against the present defendants, then a nonsuit should be entered, otherwise a judgment might be given for the plaintiffs, for the amount of the legacy with interest.
    
      Sudani, for the plaintiff.
    By the 18th and 19th sections. of the “ Act concerning executors and administrators, and the distribution of intestates’ estates,” this court is invested with powers in relation to legacies which it did not possess at common law; it possesses, in relation to this subject, the jurisdiction of the ecclesiastical and equity courts in England. By the 19th section of the act, the defendant may plead a want of assets, and the court may appoint, auditors to examine the accounts of the executors, &c.
    The legal interest in the whole of the testator’s personal estate, is vested in the executor by operation of .law,who is in' the nature of a trustee,in relation to such persons as may have claims upon it.”
    
    In all bequests of personal property, the assent of the executor is requisite to make the property in the legacy .perfect in the legatee. It is the duty of the executor to see that all debts are paid, and that he has assets sufficient to answer all demands. In the present case the sufficiency of assets has.been.admitted. Indeed, the plea of nil debet is an admission of assets, for by the act he might have pleaded no assets. If this Was a suit brought by a creditor to recover a just debt, no question could arise as to his right of recovery. Now, where there are assets sufficient, legatees and creditors stand inthesame situation, and ought to have the same remedies.
    In Williams and Chitty, the lord chancellor considered that there.was no difference between debts and legacies.
    Again; this case is different-from the one in which the devisee of the residue of the estate is not an executor. Here Jacob P. Schoonmaker, the residuary devisee is a co-executor, and it ought to have been stated that he took the property as a devisee, and not as executor.
    
      L. Elmendorf, contra,
    contended, that all the property having .be.en devised to Jacob P. Schoonmaker, after the death of the widow, or her marriage, the executors had no power over it, farther than to pay debts. The only person liable for the legacy is the devisee, and theestate devised to him is expressly charged with its payment. The cases cited on the other side apply only where the . property goes to the executor.
    
      Harison in reply.
    It was intended by the testator, that his daughter should receive her legacy out of the personal estate; he, however, devises his real estate subject to the payment of his debts. Courts of equity would, no doubt, order this legacy to be paid out of any estate; and would, after the year had elapsed, direct the executors riot to part with the property until the legacy was paid. Why should the party be obliged to resort to another court for that justice which this court has power to grant? To prevent a circuity of action, or necessity of resorting to another tribunal, this court ought to exercise the equity powers which it possesses under the statute-It does not appear that the property has passed out of the hands of the executors.
    
      
      
         Laws of JY. Tirol. 1,540.
    
    
      
      
         1 Roper on Legacies,250,Went. office of executor, 224.
    
    
      
      3 Veseyjiin, 551.
    
   Tompkins, J.

delivered the opinion of the court.

In England, tjje cognizance of legacies is confined to the ecclesiastical and equity courts; and in no instance have the commpn law courts assumed a jurisdiction in suits for legacies, except upon an express promise by the executor, in' consideration of forbearance. (5 Term Rep. 690. 1 Ventris, 120.) But our statute authorizes legatees, ’ their 1 executors and administrators, to commence fictions in any court of record in the state for the recovery of the sum bequeathed ; and provides, that if the legacy be due, and there be sufficient assets in the hands of the executors, to discharge the debts and legacies, the plaintiff shall recover the amount of his legacy. To entitle a person to the benefit of this provision, it is evidently incumbent on him to aver, and prove, that at the time of the commencement of his action, the executors had in their hands assets sufficient to pay the debts and legacies of the testator. In the present instance, this fact was peculiarly essential to a recovery by the plaintiffs, because, on the death of Petrus Schoonmalcer, the widow, by the will, was entitled to receive the per-

sonal estate, the use and enjoyment of which during life, or until her remarriage, was thereby bequeathed to her. If the residuary legatee had been disposed to prevent waste of the personal estate, and to ensure to himself the benefit of it after her death or remarriage, a court of equity would have required her to give secut ity for that purpose, or have detained the assets in the hands of the executors, of whom security might have been required,, and have permitted the proceeds only to have been applied to the use of the widow. {Precedents in Chancery, 71.) But if the property had been retained by the executors, which is not admitted by the case; yet, upon the death of the widow, it was by the will given to Jacob, the son of the testator for ever, subject to the payment of the legacy to Greetje, which legacy, to Jacob was, by the will, ordered and directed to pay to her, within one year after the death of the widow. Upon her death, it was clearly the duty of the executors, (which duty, it is to be presumed, was performed,) to have paid and delivered the personal estate to the residuary legatee. Indeed, he had a right to require this of them, for the express purpose of' enabling him to pay this legacy, which was charged upon the estate bequeathed and devised to him, and to prevent his real estate from being incumbered by, or applied to the payment of it. Had the plaintiffs anticipated the insolvency, or doubted the integrity of the widow of the testator, or of the residuary legatee, the court of chancery would probably, upon their application, have interposed its authority, and enjoined, in the hands of the executors, a sufficient portion of the personal estate, to have ensured the ultimate payment of the legacy, or would have exacted security of the residuary legatee for the payment of it, within one year after the death of the widow. This proceeding has not been resorted to, and as the plaintiffs have not averred, or proved, that the executors had, at the time of the commencement of the suit,, assets sufficient to pay the said legacy, which, in my opinion, they are hound to do, to entitle them to recover under the statute, a nonsuit must be.entered according to the agreement, for that purpose, in the case.

Judgment of nonsuit.  