
    Adelbert W. Boynton, Resp’t, v. Jane Laddy, Adm’rx, App’lt.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    Wills — Charge on estate — Liability oe devisee.
    The will of defendant's husband made the expenses of administration ’ a charge on his estate, real and personal, and then devised half of his estate to his son and the other half to defendant for life or widowhood, with remainder over, subject to the support of minor children. The son employed plaintiff to prove the will, and thereafter conveyed his interest to defendant. Plaintiff's claim for services was rejected by defendant as administratrix. Held, that the claim was an expense of administration and a charge upon the estate, but that defendant was not personally liable therefor.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee, which charged her personally, as well as administratrix, with the payment of plaintiff’s claim.
    One Alpheus Wilkins died, leaving a will, by which he directed his debts, the expenses of administration and a gravestone to be paid out of his estate, real and personal, and charged said estate with such payment It then devised half of the estate to his son Melvin, in fee, and the remaining half to his wife, the defendant, during her life or widowhood, with remainder to his other children, both devises being made subject to the support, etc., of his-minor children. No executor was named.
    Plaintiff was employed by Melvin to procure the probate of said will, which he did, and defendant was appointed administratrix with the will annexed.
    Melvin conveyed his interest in the estate to defendant, and is now insolvent.
    Plaintiff presented his claim for services to defendant, who rejected the same.
    
      Edgar T. Brackett, for app’lt; B. L. Hand, for resp’t
   Learned, P. J.

The principal question in this case was decided by this court on a former appeal, 60 Hun, 339 ; 20 N. Y. State Rep., 148. Since that decision the case has been tried before a referee. From the judgment on his report the present appeal is taken.

The report and judgment make the defendant personally liable for the claim; and the defendant insists that this is erroneous. There are cases in which property is devised or bequeathed, and the devisee or legatee is required to pay a certain debt or charge. In those cases the devisee or legatee accepting has been held personally liable. Gridley v. Gridley, 24 N. Y., 130; Van Orden v. Van Orden, 10 Johns., 30. This is on the ground that such devisee or legatee accepts the devise or bequest with the condition, and that such condition is that the devisee or legatee shall pay the debt

There is no such language in this will. The estate is by the will charged with certain claims, as we previously held, of which this is one. But there is no express direction that the devisees or legatees shall pay.

In Kelsey v. Western, 2 N. Y., 500, at 507, it was said that if there was no express promise by the devisee, an action at law would not lie to recover the legacy against the devisee.

Without going over the wholo subject of charges on estates, we may say that in this case there is nothing in the will to make the defendant personally liable. The claim in suit was, with other claims including debts, charged on the real and personal estate. There was no definite sum named, subject to which the devisee and legatee was to take. A further charge for the support of minor children was made. One-half of the estate was given to a son and the other half for life or widowhood to defendant. Defendant has become owner of the part given to the son subject to the support of the minor children. This is not then a case where, on accepting a devise, a devisee agrees to pay a certain definite charge on the land, and hence becomes personally liable.

We do not see therefore how a judgment against defendant personally could properly be rendered.

Costs seem to be properly awarded, as the judgment is not for a sum of money only. Sections 1835, 3246. Whether § 1824 applies, inasmuch as the defendant is devisee or assignee of the devisee, we need- not inquire. If she were only administratrix there might be some difficulty. But the title to one-half in fee and to the other half for life seems to be in her, subject to the charge for support of the children and to the charge in litigation.

We think that the judgment should be modified so far as it makes a personal liability against defendant, and as so modified, affirmed, without costs.

Landon and Mayham, JJ., concur.  