(dissenting):
The testator, after providing a maintenance for his widow, gave a legacy of $200 to his daughter Betsey, and another to his youngest son. He then gave all the residue, “ after the payment of my debts and legacies as aforesaid,” to his three sons, share and share alike, “ after the payment of the legacies above mentioned, and which legacies I hereby make a lien on all my real and personal estate, until paid and satisfied.” He made these three sons executors.
Although this does not in express words say that these residuary legatees are to pay the pecuniary legacies, still I think that a fair construction of the language, under the decisions, imposed a personal liability on these residuary legatees, in case they accepted their *334devise and bequest, especially if they did so without administering on the estate.
The devise and bequest is “ after the payment of the legacies.” The three sons claimed to own each one-third of the farm, and so possessed and enjoyed it. The personal property was allowed to remain thereon. And there is abundant proof that they accepted the residuary devise and legacy ; although no letters testamentary were issued. Now it is true that, in many cases where acceptance of a devise charged with a legacy has been construed to make a personal liability to pay, there have been express words to the effect that the devisee was to pay the legacy. (Gridley v. Gridley, 24 N. Y., 130.)
And here the testator, first speaking of the residue, after payment of debts and legacies, gives it both real and personal to his sons “ after the payment of the legacies above mentioned.” That is, they were to have the residue on condition that they should pay the legacies ; which were also made a charge on the real and personal. They, too, were the executors.
Whether the legacies were payable out of personal or real was immaterial, because the whole residue, went to the'se sons. And when, without taking out letters testamentary, they accepted this devise and legacy, and took all the property under this clause of the will, being entitled thereto only “ after the payment of the legacies,” they became personally bound to make such payment.
It may be noticed that in speaking of the residue, the testator describes it as the residue after “ debts and legacies,” Then when he gives this residue to the sons, he says “ after the payment of the legacies.” The words are not a mere idle repetition. He did not require the sons personally to pay his debts. But he did require them to pay these legacies.
In this view the action was barfed and the judgment should be affirmed with costs.
Judgment reversed, new trial granted, referee discharged, costs to abide event.