We think tbe decree of tbe surrogate should be affirmed. By bis will, which was dated October 25,1880, the testator directed bis executors to pay all his just debts. He had five children, of whom Mary J. Palmer was one. He made these children equal residuary legatees. David E. Palmer was tbe husband of Mary, and it now *415appears that he had an account against the testator, dating prior to May 3, 1816, of $635.44. This account was thus a little more than four’, years old when the testator made his will. On the 20th day of June, 1883, when the account was-more than seven years old, the testator made a codicil to his will, in which he provided: “ That in case any one of my children, or the husband or wife of such child shall, up to the time of the final settlement and distribution of my estate, recover in any suit or proceeding at law, or otherwise, against my estate or said executors, or the survivor of them, for any sum or sums of money accrued, or claimed to have accrued, to him or her as a creditor against me previous to the date of my codicil, then and in that case the gift, bequest or legacy, or gifts and legacies in my said ydll to such child, shall abate to the amount of such recovery or recoveries, and such amount shall be deducted from such gift, legacy or bequest to such child.”
It is difficult to resist the conviction that this provision of the codicil was framed to meet the case in hand. The testator did not apply the provision to bills or claims thereafter to accrue, but to those claimed or accrued “ previous to this the date of my codicil.” He aimed the provision at the bills or claims of the husband or wife of any of his children. It is true his will provided that all just debts should be paid, but it was competent for him to annex such a condition as this to the payment of any of them. (Shouler on "Wills, § 598.) Possibly he thought this claim was barred by the statute of limitations, possible that it was not just, possibly that his daughter, whose husband should recover it, would then be as well provided for as his other children, possibly he had the idea that his son-in-law was waiting for him to die, in order to collect the bill without prejudice from his testimony. His daughter by accepting the benefits of the will, accepts the burdens annexed to them. (Caulfield v. Sullivan, 85 N. Y., 153; Brown v. Knapp, 79 id., 136 ; Chamberlain v. Chamberlain, 43 id., 424.) It is objected that David E. Palmer, the husband of Mary, did not recover the bill, but that he assigned it to his father, John C. Palmer. The assignment was made afterthe death of the testatorupon the consideration of one dollar, and obviously to avoid the letter of the will. We do not think the intent of the testator can be defeated by an evasion so transparent.
*416Tbe executors paid tbe bill to Jobn C. Palmer without litigation or contest, and lienee it is objected that be did not “recover in any suit or proceeding at law, or otherwise.” If tbe word “ recover ” is held to be here used in its technical sense as signifying tbe amount reahzed by a party by means of tbe successful prosecution of a suit or proceeding, it appears that a proceeding was initiated. David E. Palmer made out tbe bill against tbe estate and verified it in due form, and bis assignee presented it to tbe executors. That certainly was tbe first step in tbe proceeding for its recovery. That step sufficed to procure payment from tbe executors, and tbe amount paid was equivalent to tbe like amount recovered. But we must use tbe word in as broad a sense at we think tbe testator intended, and we think be meant that it should cover whatever sum David E. Palmer should succeed in causing to be collected from bis' estate.
Decree affirmed, with costs against tbe appellant.
Eish, J., concurred.