(dissenting.) The question in this case is, whether upon the undisputed facts thereof, the defendant is personally liable to pay the plaintiff the annuity.
If he is liable, that liability must arise from an express promise to pay, or upon the acceptance of the estate bequeathed and devised to him upon the condition of the payment of the annuity.
The defendant proposed to prove that the estate had been fully administered, and fell short of paying the debts of the testator, but the proof was excluded by the court.
It is manifest the court held that the defendant was liable upon the facts in this case, without regard to the value of the property.
The will contained no direction how or from what funds the annuity was to be paid, and did not make it a lien or charge upon 'the realty in terms. It simply provided that the annuity was to be paid by the executor.
All of the testator’s estate, except the above-mentioned one hundred dollars in furniture, was given to the defendant. It will also be observed that the testator devised the real estate in fee to the defendant, and that these legacies to plaintiff were in lieu of her right of dower.
Thus, it is seen that the testator intended to dispose of his whole estate, and that the annuity should be satisfied out of the estate given to the defendant.
Upon authority I am inclined to think the holding of the court, that defendant was personally liable to pay the annuity, was correct.
The facts in Gridley v. Gridley, 24 N. Y. 130, were substantially like the facts of this case. The testator, in that case, gave all his personal and real estate to the defendant, and declared that “the said George (defendant) is to pay to Maria Gridley (plaintiff) thirty-five dollars annually during her life.”
The court say : “ The acceptance of the gift creates a personal liability upon which ap action can be maintained at law without any express promise.”
*272The chancellor in Spraker v. Van Alstyne, 18 Wend. 200, holds that where there is a mere charge upon the estate devised, but not upon the devisee personally, he takes a life estate only by a general devise of the land without words of limitation to his heirs; but where the charge is upon the person of the devisee, in respect to the lands devised, he takes a fee by implication.
In the case under consideration the testator gave all the real and personal estate, save some household furniture, to the plaintiff, and did not make the annuity a charge upon the realty, and declared that the executor (who is the devisee) should pay it.
He also charged the devisee with the payment of the debts. This is held in Gridley v. Gridley, supra, in the absence of explanation, to be a personal charge.
In this _ case the defendant entered into the possession of all the estate and sold the land. He was not directed, and had no authority, to sell the land under the will. The same was not sold to pay the debts of the testator upon the application of creditors, or the executor, to the surrogate, for leave to sell. It was sold by the defendant as devisee and owner under the will. It was, therefore, a most unequivocal and conclusive act of acceptance under the will. The principle involved, I apprehend, is analogous to a sale of property by one person to another, and the purchase price or. consideration is agreed to be paid to a third person.
Such third person may maintain an action in his own name and right to recover the purchase price.
In this case the testator offers the devisee his estate, upon the condition that he will assume and pay the debts -and legacies.
The devisee accepts the offer by taking and (in this case) selling all the estate (except one hundred dollars’ worth).
By that act he has signified his acceptance of the offer, and thenceforth is bound, as by a contract, to personally pay the debts and legacies, however ill-advised or unprofitable the contract may prove to be.
If he declines to accept the estate upon those conditions, the legatee may be required to go into a court of equity and enforce a due administration of assets and the satisfaction of the legacy therefrom.
That a personal liability of the devisee to pay the debts and legacies results from the acceptance of the devise by him, is held in numerous cases in our own courts. Larkin v. Mann, 53 Barb. 267; *273McLochlen v. McLochlen, 9 Paige, 534; Van Orden v. Van Orden, 10 Johns. 30 (as well as those of Connecticut); Lord v. Lord, 22 Conn. 602; 27 id. 530.
This view disposes of the case and sustains the ruling of the court in directing a verdict for the plaintiff upon defendant’s acceptance of the estate under the will, and renders it unnecessary to consider the other ground upon which the personal liability of defendant is also maintained.
There are several authorities in this State to the effect, that the payments of the annuity by defendant is conclusive evidence of an express promise to pay. Kilroy v. Deyo, 3 Cow. 133; Van Orden v. Van Orden, supra; Gridley v. Gridley, supra.
As the evidence stood at the close of the case, the payments were made by defendant under the will.
Plaintiff testified that the defendant paid her the annuity for three years under the will, and there was nothing in the other evidence to countervail or to weaken this proof.
The defendant did not ask to have the question, of how the defendant paid the annuity, whether as executor or devisee, submitted to the jury, together with the evidence of the accounting before the surrogate.
After the exclusion of the evidence of the accounting; there was no evidence in the case to interfere with the operation of the rule as held in Van Orden v. Van Orden, 10 Johns., supra, that payment of a part of the annuity “ is a solemn act and admission, as strong as any promise, and supposes a promise .expressly made and to have preceded the payment.”
I am not sure, but the true view of a payment not as executor, is to signify an acceptance under the will. If so, it is but another species of evidence of acceptance, which as has been considered above, establishes the defendant’s absolute personal liability to pay the annuity.
I think a new trial should be denied and judgment ordered for plaintiff, upon the verdict with costs.
Verdict set aside and new trial granted.