The charge upon the land did not create a trust, in any accurate meaning of the word. It imposed only a lien or incumbrance. (Matter of Fox's Will, 52 N. Y., 530.) We are cited to no case in this State holding the contrary. Benson v. LeRoy (4 Johns. Ch., 651) was the case of a devise to trustees, in trust to pay debts and distribute the residue. It was not the case of a mere charge on lands devised. Clark v. Crego (47 Barb., 599) decides nothing on the point. There is no trust expressly given to the executors ; and it is not necessary to imply any.
It seems, this devise, if accepted, made the devisee personally liable to pay the liabilities charged thereon. (Gridley v. Gridley, 24 N. Y., 130. But see Mesick v. New, 7 N. Y., 163.) This sliorvs that it was not a mere devise in trust to sell and pay debts *128and legacies. On such a devise in trust the devisee would not be personally liable.
If the devisee did, in fact, refuse to accept the devise, then the estate descended to the heir, charged with the payment. (Birdsall v. Hewlett, 1 Paige, 32.) But, probably, there is no personal liability on the heir, upon whom, the law casts the descent. No trust, in any case, exists in the executor or elsewhere.
The distinction between legal and equitable assets has become unimportant and almost meaningless here. Formerly, equitable assets were distributed in a different manner from that in which legal assets wei-e distributed. They were those which the executor did not take, as executor. The plaintiff here sues as executor.
The plaintiff insists that, if no trust, there is a power in trust. But, none is given expressly, and there is no occasion to imply any. Such a power is implied when the executor is expressly directed to do some act, for the doing of which a power is necessary. (Morton v. Morton, 8 Barb., 18.) Here he is not directed to do anything touching the land or its avails. Even the power of the surrogate to authorize a sale of the land for debts is taken away, where there is a charge of the debts; until the creditors have exhausted their remedies under the charge. This indicates that the remedy is to be sought by the creditor himself, in an action to enforce the charge. (2 R. S., m. p. 102, § 14.)
The plaintiff stated on the trial that he entered on the land, as executor, and undertook its management, to save, for the payment of the debts, as large a sum as possible. As executor, ho had no right to enter upon the land. He could enter thereon only as devisee. If we assume that, having collected the rents of the lessee, whose term did not expire till April, 1878, and having worked the farm till October, 1878, the devisees could then renounce the devise,- still they are, or the plaintiff is, still holding the rent received and the crops taken off. With these the plaintiff has nothing to do. If the land has descended to the heir, she is entitled to the rent and the crops. There is nothing in the will which makes the income of the farm a fund to pay *129debts or legacies. The creditors and legatees are no more entitled to the income than is a mortgagee.
There is no positive direction to sell the land, and, therefore, there is no so-called equitable conversion of the land into money. - The heir certainly has, as the devisees had, the. privilege of paying * off the charges, without having any sale made of the land. It is only upon her refusal to pay off and discharge the charges on the land, that any person interested .therein could complain. Now, it does not appear that she has ever refused such payment. It was only on October 2, 1878, that the devisees renounced, and this action.was commenced üíovember 23, 1878. The heir was herself by far the largest creditor, and the largest pecuniary legatee. And. nothing appears showing that she had knowledge of the renunciation ; or that she was not willing to discharge the claims of creditors and legatees.
Indeed, we are unable to see the necessity for this action.. It is claimed that a marshalling of assets is needed; and a question is raised whether the charge is in aid, or in exoneration of the personal property. But, when this is considered practically, we see little occasion to examine it. It cannot be questioned in any event}.that debts are to be paid before legacies; funeral expenses, &c., before either. Now the funeral expenses, proving the will, &e.,. amount to over $216. The debts, as claimed, are stated in the complaint to be over $6,755. They are proved to be over $4,911; besides interest. Thus, we have a total of $5,127, before legacies are. reached. The land is estimated in .the complaint at $5,000; and is proved to be worth from $3,800 to $4,000.
Therefore, there is not value enough in the land to pay the legacies, after first paying debts and funeral expenses; &c. The' -exec-' utor shows, on the trial, personal property amounting to $1,146.10, of which $332.50 is the value of specific legacies. The total pecuniary legacies are $2,400. Now, even assuming that the land is the primary fund to pay the debts, legacies or funeral expenses, it is. shown to be insufficient for that purpose. And so great is the. insufficiency that all ilie personal estaje, as well as the land, will apparently be needed t.o pay the debts, pecuniary legacies, and funeral expenses, &e. And we suppose that it is not claimed that,. *130even if the land be the primary fund, the personalty is not the secondary.
In the will there are pecuniary legacies to the amount above stated, including one of $200 to Rachel Dill. She is also made the residuary legatee. We are inclined to the opinion that the charge was in aid, and not in exoneration, of the personalty. Because the will gives to Rachel Dill the residue of the personal property, after having specified numerous specific and pecuniary legacies; some to Rachel Dill herself. Now, if the testatrix had supposed' that the personal property was not to pay any of the legacies, she would not have bequeathedit as a residue, after pecuniary legacies. (2 Jarman on Wills, 586 ; Powell v. Riley, Law Rep., 12 Eq., 175.) In Youngs v. Youngs (45 N. Y., 254), cited on this argument, certain real estate was charged, and if that proved insufficient then other real estate was charged ; and then the residue of the real and personal was given.
The provisions of the will in that case were different from those of the will under consideration. But we deem it unnecessary, as above stated, to decide whether the charge is in aid, or in exoneration, of the personal imoperty.
■ It seems to us that this action should not be sustained. (Brundage v. Brundage, 65 Barb., 397; Chipman v. Montgomery, 11 Sup’m. Ct,, 739 ; Smith v. Rockefeller, 10 Id., 295.) We do not see that the executor had anything to do with the land. As to •the personal property, he could account before the surrogate, as he has been doing. However the complaint may endeavor to conceal ¡.the-fact, the action is really brought against Mrs. Wisner,, the heir. And yet no allegations are made, or proof given, of any neglect, or refusal, on her part, to discharge the charges on the land. Whether she discharged them or not’ was; a matter with which the plaintiff had nothing to do; unless as.it might affect his accounting, and the distribution of the personal property before the surrogate. But all the circumstances show that no difficulty ..of that kind gayé rise to the action. If Mrs. Wisner ■ had recovered no judgment, the executor would have found the will to he simple in its meaning.
We think.that .the judgment should be reversed and the com*131plaint'should be dismissed, with costs against the plaintiff personally.
Present — Learned, P. J., Bockes and Landon, JJ’.Judgment reversed and complaint dismissed, with costs.