The case shows that George Clark, a resident of Orange county, died in 1871, leaving real and personal estate, and leaving a last will and testament. The testator left four children and a widow, the appellant herein. By the terms of the will, his widow was given a life estate in the homestead, and the residue of the estate, real and personal, was given to his executors, as follows:
“Third. I give, devise, and bequeath unto my executrix and executors all the rest, residue, and remainder of my estate, real and personal, so long as my youngest child shall live, but not after the majority of such child shall be reached, upon trust to take charge and possession of the same, and to collect and receive the rents, issues, and profits of the realty, and the principal profits and increase of the personalty, and to invest, manage, expend, and control the same as they may deem best, and out of the rents, issues, increase, and profits thereof to pay to my wife the sum of one thousand and five hundred dollars per year, in half-yearly payments, commencing immediately after my decease, in addition to the property now occupied as my residence, and then, out of the residue of such rents, issues, and profits to make such advances to my children, or to expend for them, respectively, such moneys as may be necessary and proper for their support and education, and for their settlement in life, or advancement in business. If such rents, issues, and profits shall prove insufficient therefor, such deficiency shall be supplied out of the principal of the said personalty. Upon the death or majority of my youngest child during the life of my wife, so much of my property shall be set apart as will produce an annual income of one thousand and five hundred dollars, which be paid to my wife, during her life, in half-
*331yearly payments; and the rest, residue, and remainder of my estate shall be divided among my children, viz. Mary Augusta, George Horatio, Martha Louisa, and Robert Sterling, so that such advances and support as they may respectively have had, as hereinbefore directed, shall make equality of partition among them. The provision hereinbefore made for my wife is intended to be in lieu of her dower and distributive share of my estate.”
The youngest child of testator was Robert S. Clark, who became 21 years of age in 1876. The executors did not then set apart so much of the testator’s property as would produce an annual income of $1,500 for the testator’s wife, and very soon great changes were made in the title to the estate. The youngest child died within a few months after arriving at maturity. He left a will by which he gave his mother, the defendant, the use of his share in his father’s estate for life, with remainder to his brother and sisters. Within a year subsequent to the death of the youngest child, another of the children, a girl, died intestate and without children; and thus her share descended to her mother, brother, and sister, as provided by law. The entire estate became thus invested in George H. Clark and his sister, Mrs. Townsend, subject to the rights of their mother. In 1879, George H. Clark married the plaintiff; and on the 7th of February, 1883, the parties, by their several conveyances and agreements, changed the whole situation. The executors of George Clark and Mrs. Townsend and her husband conveyed what was accepted as one-half of the real estate to George H. Clark; and the executors, at the same time, by a deed in which George H. Clark and his wife joined, granted the other part of the real estate to Mrs. Townsend. Each of the deeds reserved the defendant’s rights as follows:
“This conveyance does not release or extinguish the lien of Augusta Clark on said lands from the payment of the annuity provided for, and directed to be paid to her, by the will of said George Clark, deceased.”
On the same day the defendant, reciting that the children had divided the estate and property of their father between them, agreed that she would receive one-half the annuity from each of them, and that she should have a lien, as security for the payment of the same, “upon the respective portions of the real estate and property of said George H. Clark and Mary A. Townsend, inherited from their father, and divided by this settlement, for the punctual and faithful performance on their part of this agreement, and the payment by each of them of said sum of seven hundred and fifty dollars at the time or period of time required by said will.” The case shows that within a few weeks after these deeds the estate was finally settled by the surrogate of Orange county, and the executors were discharged from their duties under the will. Under this arrangement, each of these parts of the lands conveyed to George H. Clark and to his sister became severally chargeable with the payment of $750 to the defendant yearly. The failure to make a fund to produce the sum became inoperative, and by the agreement of all parties interested, including plaintiff and defendant, the annuity was payable out of the land. In 1888, George H. Clark died, and left all his property to his mother, the defendant, by will. She has not been *332able, from the use of the land, to realize the amount of her annuity from it. The claim of the plaintiff is not superior to the payment of the balance unpaid, nor is it superior to the payment of the annuity in the future. Defendant was given, by devise from her son, a title charged with the payment of an annuity of $750. His personal estate had nothing to do with it. The land was mortgaged, and the defendant is entitled to her security upon it. The judgment should be reversed, and a new trial granted, with costs to abide the event.