
    Sarah Baker versus Uzziel Dodge, Administrator de bonis non of Cornelius Baker.
    A testator devised the residuum of his estate, both real and personal, to his son, his heirs and assigns, on condition that he should pay all the testator's debts, funeral charges and bequests, and should also support the testator's daughter. The son was appointed executor and took upon himself that trust. He entered upon the real estate, conveyed part of it in mortgage, supported the daughter during his life, and died insolvent Held, that the provision in favor of the daughter was a legacy, and that she might maintain an action for it against the administrator de bonis non of the testator, notwithstanding she might have another remedy by entry for non-performance of the condition.
    The parties agreed that Cornelius Baker, father of the plaintiff, died in 1808, having bequeathed and devised to his son John Baker, his heirs and assigns forever, a clock and a feather bed, with all the rest of his estate, both real and personal, “ on condition ” that John Baker should pay the testator’s debts, funeral charges, legacies and bequests, and should also support the plaintiff in health and sickness during her life. John Baker entered upon the land devised, and occupied it during his life, and conveyed parts of it in mortgage to divers persons, and continued to maintain the plaintiff, who was a person non compos mentis, until September 1821, when he died insolvent. He was appointed executor of the will, and in October 1808, he took upon himself the execution of that trust. He returned an inventory, but never rendered an account of his administration. He paid the pecuniary legacies mentioned in the will, and applied all the testator’s personal property to the payment of the debts. The testator left no other real estate than that which he devised to his son as before mentioned.
    If upon these facts the estate devised to John Baker was liable for the support of the plaintiff, and any action could be maintained for the same as for a legacy, judgment was to be rendered for the plaintiff for a sum to be afterwards ascertained ; otherwise she was to become nonsuit.
    
      Pickering contended that this provision for the plaintiff was a legacy. Farwell v. Jacobs, 4 Mass. R. 634 ; Saunderson v. Stearns, 6 Mass. R. 37. It may be viewed as a direction to John Baker, either as executor or as devisee, and the estate is liable, the devise being upon condition that he should support the plaintiff. Co. Lit. 236 b; 1 Rol. Abr. 411, Condition, I, pl. 2; Walker v. Collier, Cro. Eliz. 378; 2 Dane’s Abr. 255. The plaintiff has a double remedy, either by a writ of entry or by an action for the legacy. In England or New York it would be otherwise, because there no action will lie for a legacy. Pelletreau v. Rathbone, 18 Johns. R. 430.
    
      Saltonstall, contrà,
    
    said that the provision in question gave a fee simple to John Baker, and created a personal charge on him as devisee. 6 Crui. Dig. 253, tit. 38, c. 11, § 49 ; Co. Lit. 9 b; Moor v. Price, 3 Keb. 49 ; Reeves v. Gower, 11 Mod. 208 ; Doe v. Richards, 3 T. R. 356 ; Doe v. Holmes, 8 T. R. 1 ; Goodtitle v. Maddern, 4 East, 496 ; Shailard v. Baker, Cro. Eliz. 744 ; Lee v. Stephens, 2 Show. 49 ; Lithgow v. Kavenagh, 9 Mass. R. 165 ; Jackson v. Bull, 10 Johns. R. 148 ; Roe v. Daw, 3 Maule & Sel. 518. The plaintiff’s remedy therefore is against John Baker’s representatives. Beecker v. Beecker, 7 Johns. R. 99 ; Van Orden v. Van Orden, 10 Johns. R. 30.
    The opinion of the Court was read at Ipswich, as drawn up by
   Parker C. J.

The question is, whether the provision in the will of Cornelius Baker in favor of the plaintiff in this action, is of the nature of a legacy, so as to entitle her to recover against the present representative of the testator, and to have a satisfaction of her judgment out of the effects of the deceased. And we are all of opinion that such is the nature of the testamentary provision, and that according to the law, as declared in the case of Farwell v. Jacobs, 4 Mass. R. 634, the plaintiff is entitled to support her action. There is no difference in principle between the two cases, and very little in the character of the bequests ; so that it is better to refer to that case for the reasons of the opinion, which are very clearly stated by Parsons, C. J., than to repeat them here, or to endeavour to give others.

The diversity suggested by counsel in the argument is, that the bequest in the former case was not expressly charged upon the real estate, nor was the devise of the estate to the residuary devisee upon condition of his fulfilling the duties imposed by the will; whereas, in the case before us, it is expressly provided, that the residuary devise should be on condition of the devisee’s paying legacies, &c. But we do not perceive any distinction in the legal character of the two bequests ; the most that can be said is, that in this case there was the cumulative remedy of an entry for non-performance of the condition. The action is not thereby taken away, and it is certainly as convenient that a judgment should he rendered against the administrator, as that the whole estate should be avoided by an entry. The administrator may find means of satisfying the judgment without disturbing the real estate, or he may sell just so much of that as will enable him to satisfy it. Judgment will therefore be rendered for the plaintiff. 
      
       See Wood v. Barstow, 10 Pick. 368.
     
      
       See Wheeler v. Walker, 2 Connect. R. 196 ; Chalker v. Chalker, 1 Connect. R. 79 ; Ward v. Downing, Popham, 10 ; Fox v. Carlyne, Cro. Eliz. 454 ; Curteis v. Wolverston, Cro. Jac. 56 ; Underwood v. Swain, 1 Ch. R. 161 ; Hodgson v Rawson, 1 Ves. sen. 44, 47 ; Barnardiston v. Fane, 2 Vern. 366 ; Freke v. Lee, Pollexf. 553 ; Grimstone v. Bruce, 2 Vern. 594 ; Creckmere v. Patterson, 1 Leon. 174 ; Slaning's case, Popham, 102 ; Sawyer v. East, Lane, 78.
      No one but the heir at law can make an entry, where an entry is necessary, to defeat an estate for breach of a condition in a devise. Newis v. Lark, Plowden, 412, 413 ; Mary Portington’s case, 10 Co. 41 b ; Avelyn v. Ward, 1 Ves. sen. 422, 423 ; Bro. Abr. tit. Conditions, pl. 43 ; Canal Co. v. Rail Road Co. 4 Gill & Johns. 1. If then the legatee in the text had not been an heir at law, the Court must have construed the condition in the devise a limitation, before they could have given her any advantage of it, as in Wellock v. Hammond, Cro. Eliz. 204 ; Wiseman v. Baldwin, 1 Roll. Abr. 411, K, pl. 5 ; Cro. Eliz. 377 ; Miles v. Leigh, 1 Atk. 573, 575 ; Curteis v. Wolverston, Cro. Jac 56 ; Haynsworth v. Pretty, Cro. Eliz. 833 ; 2 Dane’s Abr. 255, Ram on Assets &c., 103 et seq. (No. 22, Law Libr. 70, 71), and carried the intent of the devisor into effect. Newis v. Lark, Plowden, 412,413.
      Where the forfeiture of the estate by the devisee is the effect of accident, and the injury done by the breach can be compensated, if the heir enters upon the devisee for condition broken, courts of equity will interfere and put the devisee in possession of the estate again, on payment of the debt, legacy or other charge with the interest and costs. Underwood v. Swain, 1 Ch. R. 161 ; Barnardiston v. Fane, 2 Vern. 366 ; Popham v. Bamfield, 1 Vern. 79 ; 1 Eq. Ca. Abr. 106, 107, 108, 109 ; Wheeler v. Walker, 2 Connect. R. 229 ; Livingston v. Tompkins, 4 Johns. Ch. R. 431 ; Northcote v. Duke, Ambler, 513, 514 ; 1 Madd. Ch. Pr. (1st edit.) 36, 37 ; Rolfe v. Harris, in note to 2 Price, 200; Powell on Devises, (by Jarman,) 195, n. 7.
      Wherever the condition in a devise is construed by the courts strictly as such, the heir must make an actual entry in order to avoid the estate of the devisee after condition broken. Newis v. Lark, Plowden, 413.
      But where the condition in a devise is held a limitation of the estate, the estate ceases in the devisee, as soon as the breach is committed, and he who is next entitled to it is regarded as having an estate in possession without entry. If an entry were necessary, the heir alone could make it. But as no entry is required, the possession, which passes without entry, can go as well to another, as to the heir. Anon. 2 Mod. 7 ; Newis v. Lark, ubi supra ; Wellock v. Hammond, Cro. Eliz. 204 ; Mary Portington’s case, 10 Co. 40 b.
      
      Against the effects of a breach in cases of limitation of the estate, equity can in general furnish no relief. Simpson v. Vickers, 14 Ves. 341 ; Cage v. Russell, 2 Ventr. 352 ; Cleaver v. Spurling, 2 P. Wms. 528 ; 1 Powell on Dev (by Jarman,) 196, n. (7). See Frost v. Butler, 7 Greenl. 225.
      Where an estate is devised on condition to pay legacies, will the condition be broken without a demand made for the legacies ? If the condition is contained in the same instrument under which the devisee holds, it seems from the following authorities, that no demand would be necessary. Wheeler v. Walker, 2 Connect. R. 196 ; Wellock v. Hammond, Cro. Eliz. 204 ; Ward v. Downing, Popham, 10 ; Randall v. Eeley, Carter, 170, per Sir O. Bridgman See also Frances's case, 8 Co. 89 b ; Mallory’s case, 5 Co. 111 b ; Fry v. Porter, 1 Mod. 86 ; Corbett's case, 4 Co. 82.
     