If there exists a liability on the executor, by reason of his having assets, an action of assumpsit, founded *166on an implied promise, in my opinion, is maintainable against him for a legacy.
But when the personal estate has been exhausted, as in this case it was, and resort must be had to realty, it becomes an important question, whether, for the payment of a legacy, the court of probate has authority to order the sale of real estate. On this point, the case before the court must turn. For the “debts and charges” against the estate, the law has imparted this authority; and, of consequence, imposed it on the judge as a duty; but a legacy is not a debt, nor is it a charge, within the meaning of the statute. The latter word has, from familiar use, the precision of a technical term, and merely comprises the expences incurred in the settlement of an estate. The executor, then, had no assets, nor the possibility of obtaining any, to discharge the legacy; and no suit can be maintained against him for omitting to perform an impossibility.
To express an opinion beyond the exigencies of the case, would be improper. That the plaintiff is remediless, I do not intimate; but the nature of the remedy, it is neither my duty, nor intention, to suggest.
The other Judges were of the same opinion.New trial not to be granted.