
    John Quackenbush, App’lt, v. Henry Quackenbush et al. Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1886.)
    
    1. Will—Construction of clause in.
    A testator after, among other things, giving a legacy to his daughter B., gave all the residue ‘ ‘after the payment of my debts and legacies aforesaid, to my three sons, share and share alike. After the payment of the legacies above mentioned, and which legacies I hereby make a lien on all my real and personal estate, until paid and satisfied.” By the will he made his three sons executors, but they refused to qualify. Held, that the residuary legatee, by accepting their interest under the will, did not become personally liable for the payment of the legacy to B. (Learned, P. J., dissenting.)
    
      2. Same—Parties taking property disposed of by will, in violation
    OF THE TERMS OF, ARE WRONGDOERS.
    
      Hell, that the personal property was the primary fund for the payment of the legacy; that the portion thereof necessary for such payment could only properly come into the hands of the sons as executors, and that not qualifying as such, they took it merely as wrongdoers; that as such, they were not liable under the will for the payment of the legacy.
    3. Same—Ordinarily the legal remedy is an action by administrator
    AGAINST WRONGDOERS.
    Ordinarily an administrator might he appointed, and the whole value of the personal property recovered from the wrongdoers, hut in the present case such an action would be barred by lapse of time.
    4. Lien on real estate created by the will—Duration of.
    
      Held, That there having been no judicial settlement of an administrator’s account, B.’s right of action against the administrator for his legacy is not barred, and by the express terms of the will the lien of the legacy upon the real estate exists so long as his rights to enforce payment of the legacy exists.
    5. Same—Equitable remedy—When statute of limitations begins to
    run against.
    
      Held, That the enforcement of the lien against the real estate was an equitable remedy and that the statute of limitations did not begin to run against it until the legal remedy became unavailing.
    6. Same—Bights of grantee of residuary legatees—Of grantee
    of lienor.
    
      Held, That a .grantee of the residuary legatees took the real estate subject to this lien, and that the right of B. was a proper subject of sale.
    
      II. Link, for appl’t; B. A. Hansom, Wendell & Van JDusen, for respt’s.
   Landon, J.

The referee held that the statute of limitations barred the plaintiffs action. This conclusion seems to rest upon the proposition that the defendants, Henry and Sandford Quackenbush, who with the plaintiff are the residuary legatees and devisees under the will of Adam Quackenbusn, by accepting the devise and bequest to them became personally liable for the payment of the legacy of $200 to their sister Betsey. The legacy was by the terms of the will payable one year after the testator’s death, which occurred June, 1866, and therefore the right of action accrued to her against them upon their personal liability in June, 1867, and hence was barred either by the six or ten years limitation; that the lien upon the land devised was controlled by the same limitation. Loder v. Hatfield, 71 N. Y., 92.

If, however, it is not true that the residuary devisees became personally hable to pay Betsey her legacy, then the above conclusion does not follow, and the only remedy available to Betsey to recover her legacy was by the due course of administration to enforce its payment out of the personal property of the testator, and that failing or being shown to be unavailing, then to foreclose her Hen upon the land. In the latter case her remedy would not be barred until at least six years after the judicial settlement of the administrator’s or executor’s account. Code Civil Procedure, section 1819.

The legacy to Betsey is not by the terms of the wiH made payable by the residuary legatees or devisees out of the 'residuary estate, nor is it made payable by them as the .condition of the gift to them of such estate, nor is it in any 'way to proceed from the residuary estate. The residuary estate is carved out of what shaH be left “after payment of my debts and legacies aforesaid.” By accepting the •residuary estate the defendants were not confronted with any payment to Betsey charged upon that estate :or upon themselves, and, therefore, could not, by accepting it, be held to have promised payment. But the testator made that legacy a “Hen on aH my real and personal estate until, paid and satisfied.” _ The estate that came to the defendants’ hands came with the Hen upon it. That Hen. confers the right upon Betsey to have the aid of a court of equity to enable her to sell the estate ■ if necessary for her payment. This action is to foreclose that Hen. The Hen is not the security for any personal obligation of the defendants, but for the gift of the testator, and is enforceable because no other remedy remains to the legatee to enforce payment of the legacy.

The testator left ample personal property to pay debts and legacies. This personal property was the primary fund for the payment of this legacy. The portion of it necessary to pay this legacy was not bequeathed to the residuary legatees. If they could take it at aH, they could only rightfully take it as executors, in the first instance, and for the purposes of administration. They declined, although named as executors, to take out letters testamentary, and no administration has ever been had upon the estate. They nevertheless took the personal property and converted it to their own use. They took it as wrong doers, not as legatees or executors. As wrong doers, the will did not make them personally liable to Betsey. This did not give Betsey the right to sue them to recover her legacy. It gave her the right to have an administrator appointed, and such administrator would have had the "right to recover from them this personal property or its full value. 2 R. S., 81, § 60; id., 449, § 17; Muir v, Trustees, etc., 3 Barb. Ch., 477; Brown v. Brown, 1 id.; 195; Wever v. Marvin, 14 Barb., 376.

Such proceeding has not been resorted to. We know of no statutory prohibition to resort to it now. But the statute of limitations, Code Civ. Pro., § 392, if such an an administrator should now be appointed, would date his appointment with six years from the death of the testator; and his action, if now brought against the residuary legatees to recover the personal property, or its value, which was of the estate, would be barred by the second six years. Code Oiv. Pro., §§ 382, 3343, subd. 10.

Betsey,_ therefore, is in this position. Since there has been no judicial settlement, her right of action against the administrator for her legacy is not barred. The hen of the legacy upon the real estate exists by the express terms of the will so long as her right to enforce the payment of the legacy exists. She can enforce that hen against the real estate, when her remedy against the personal becomes unavailing. It has become unavailing, because the statute of limitations would bar any action to be brought by an administrator, if he should be appointed. She, therefore has no other remedy to collect her legacy than by foreclosing her hen. This is an equitable remedy, and if, ás we doubt, the statute has begun to run against it, it did not begin to run until the legal remedy through administration became unavailing; it did not so become until twelve years after the death of the testator. Her equitable remedy subsists at least for ten years more (Code Civil Pro., § 388), or in this case twenty-two years, from the testator’s death.

We think the action is not barred. The plantiff is the assignee of Betsey. He was one of the residuary devisees and legatees. He mortgaged his undivided one-third of the real estate to his brother, the defendant Henry, who subsequently purchased it upon a sale under this mortgage. Henry thus became the owner subject to the lien in favor of Betsey. We see no reason why she could not subsequently sell this Hen to the plaintiff.

The defendant Wahath purchased the land after the commencement of the action and upon indemnity against the lien. He is in no better position than his grantors.

Judgment reversed, reference discharged, new trial granted, costs to abide event.

Bookes, J., concurs, for reversal.

Learned, P. J.

(dissenting).—The testator after providing maintenance for his widow gave a legacy of $200 to his daughter Betsey and another to his youngest son. He then gave all the residue “after the payment of my debts and legacies aforesaid,” to his three sons, share and share alike, “after the payment of the legacies above-mentioned and which legacies I hereby make a lien on all my real and personal estate until paid and satisfied.” He made these three sons executors.

Although this does not, in express worcls, say that these residuary legatees are to pay the pecuniary legacies, still I think that a fair construction of the language, under the decisions, imposed a personal liability on these residuary legatees in case they accepted their devise and bequest, especially if they did so without administering on the estate.

The devise and bequest is “after the payment of the legacies.” The three sons claimed to own each one-third of the farm and so possessed and enjoyed it. The personal property was allowed to remain thereon, and there is abundant proof that they accepted the residuary devise and legacy; although no letters testamentary were issued. Now it is true that, in many cases where acceptance of a devise charged with a legacy has been construed to make a personal liability to pay, there have been express words to the effect that the devisee was to pay the' legacy. Gridley v. Gridley, 24 N. Y., 130.

And here the testator first speaking of the residue after payment of debts and legacies, gives it, both real and persona,!, to his sons, “after the payment of the legacies above mentioned.” That is, they were to have the residue on condition that they should pay the legacies, which were also made a charge on the real and personal. They, too, were the executors.

Whether the legacies were payable out of personal or real was immaterial, because the whole residue went to these sons. And when, without taking out letters testamentary, they accepted this devise and legacy and took all the property under this clause of the will, being entitled thereto only “after the payment of the legacies,” they became personally bound to make such payment.

It may be noticed that in speaking of the residue, the testator describes it as the residue after “debts and legacies.” Then he gives this residue to the sons. He says, ‘after the payment of the legacies.” The words are not a mere idle repetition. He did not require the sons personally to pay his debts, but he did require them to pay these legacies.

In this view the action was barred and the judgment should be affirmed, with costs.  