delivered the opinion of the Court. This case, as now stated by the parties, appears to the Court quite clear, and free from the difficulties with which we were somewhat embarrassed by a former statement. The general question is, whether, upon the facts agreed, the plaintiff is, by law, entitled to recover the legacies sued for, or whether these legacies are to be considered as forfeited or virtually relinquished by the plaintiff’s attempt to enforce his claim against the estate of the testatrix, for her board while she was living with him as a member of his family.
By the first clause in the will the testatrix gave to the plain*483tiff and his wife a lot of land in Vermont* the language of which is peculiar ; but it amounts, we think, to a conditional devise and testamentary disposition of the property. After the death of the testatrix the defendant applied to the plaintiff, requesting him to say whether he intended to accept this devise ; and thereupon the plaintiff refused to make any election that .would tend to prevent his recovery for expenses in boarding, nursing and taking care of the testatrix. He afterwards' commenced his action against the defendant to recover such board and expenses, and prosecuted the same to final judgment, but failed to recover. This proceeding of the plaintiff, although the jury, by their verdict, negatived his claim, must be considered as an election on his part to relinquish the devise. He had no right to try his chance of recovery for board and expenses, and having failed to recover, to claim afterwards the benefit of the devise. But it has been argued for the defendant, that not only this devise must be considered as forfeited or relinquished, but the other legacies in the will now sued for ;' and he relies on a rule in equity, which is well established and was recognized by this Court in the case of Hyde v. Baldwin, 17 Pick. 308. The rule is, “ that no person shall take any beneficial interest under a will, and at the same time set up any right or claim of his own which shall defeat, or in any way prevent, the full effect and operation of every part of the will.” But there are several exceptions to this rule, one of which expressly embraces the present case. The exception as laid down in 2 Madd. Ch. Pr. 54, is, that where a man by his will gives a child or other person a legacy or portion in lieu and satisfaction of a particular thing, this shall not exclude him from another benefit, though it may happen to be contrary to the will; for the court will not construe it in lieu of every thing else, when he has named a particular thing. East v. Cook, 2 Ves. sen. 33.
The same principle, substantially, was laid down in Ward v. Ward, 15 Pick. 526. In that case there was a devise of a tract of land charged with the payment of the sum of $ 300 ; and a residuary legacy was given to the same devisee, without any condition annexed to it ; and it was held, that the devisee might renounce the particular devise, and that he would never*484theless be entitled to the residuary legacy. It would be mani* festly contrary to the will, it is said, to charge the $ 300. upon the whole property given to the devisee, when it is expressly put upon one particular part.
The decision in that case is conformable to the exception as laid down by Maddock and in East v. Cook, 2 Ves. sen. 33. There are other exceptions to the general rule as laid down in Hyde v. Baldwin, which it is not necessary to advert to, although they have a bearing on the present case. The doctrine as laid down in Maddock on Chancery Practice, is directly applicable to the case under consideration, and is decisive. The implied condition is limited to the devise of the lot of land in Vermont, and whether it has been performed or not, cannot affect the other legacies. The devise and legacies are independent of each other; the one is on an implied condition, the others are absolute. The non-performance of the condition can only affect the devise of the land to which the condition is attached. Upon principle and upon authority this result appears to us to be clearly maintained.
Something was said as to the right of the plaintiff to recover the residuary legacy without taking out letters of administration on the estate of the wife ; but I did not understand that the defendant’s counsel insisted on this objection. We have however considered it, and think that he may maintain the action in his own right. It was so decided in the case of Goddard v. Johnson, 14 Pick. 352 ; and we think there is no reason to overrule that decision.
Judgment for the plaintiff.