Boynton v. Laddy

Learned, P. J. The principal question in this case was decided by this court on a former appeal. 3 N. Y. Supp. 93. 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 623 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 whole 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 or 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 section 1823 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 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.