PITNEY, V. C.
J. L. Connett and Voorhees & Cotter, for complainant.
H. B. Herr and George H. Large, for defendants.
PITNEY, V. C. The complainant is the widow of John M. Wyckoff, late of the county of Hunterdon, and she seeks by this suit to charge the lands of which he died seised with the payment of an annuity, bequeathed to her by his will. He died in 1869, seised and possessed of a considerable estate, consisting of land worth about $14,000, and personal property which netted, after paying all charges, nearly $5,000. The principal question involved is as to the proper construction of his will, which is as follows: "First. It is my will, and I do order, that all my just debts and personal expenses be duly paid and satisfied as soon as conveniently can be after my decease. Item. I give all my wearing apparel to my two sons, Martin and John, equally. Item. I grant and devise to my son John V. Wyckoff, from my homestead farm, two acres of woodland on the top of the mountain, to be valued at ninety dollars per acre. I grant and devise to my son-in-law, Garrett C. Garhart, from my homestead farm, eight acres from the top of the mountain, together with the two-acres wood lot I purchased from Peter E. Voorhees, to be valued at ninety dollars per acre. I grant and devise to my son Martin Wyckoff my homestead farm, whereon he now resides, together with the balance of the woodland, containing about one hundred and fifty-five acres, more or less, to be valued at ninety dollars per acre. Item. I do order my executors, Martin Wyckoff, Garrett C. Garhart, and John V. F. Wyckoff, each one to pay or cause to be paid unto my beloved wife, Ellen, the sum of seventy dollars yearly and every year after my decease during her said widowhood, which said sum is to be her right of dower in my estate; also the use of any of the household goods that she may want the use of, if she wishes, during her said widowhood. Item. I do order that all my personal property, except as before mentioned, be sold, and all my just debts be paid, and the balance, together with all other property, be divided into three equal shares,—one share to my son Martin Wyckoff, one share to my daughter Gitty Maria, wife of Garrett C. Garhart, one share to my son John V. F. Wyckoff, equally, share and share alike. Lastly. I hereby appoint my son Martin Wyckoff, my son-in-law, Garrett C. Garhart, and my son John V. F. Wyckoff, my executors of this, my last will and testament." It was admitted at the hearing, though not alleged in the bill, that the land so devised comprised all the real estate of which the testator died seised, and that the three children named in his will were his only heirs at law. The devises in the will were construed by the beneficiaries of theresidue as amounting, in effect, to several devises to the devisees named, upon condition that each should pay to the executors the price named in the will, and that such devises did not take effect unless and until the several devisees paid or satisfied the sum fixed; or, to state it more simply, that it amounted to giving the several devisees named the option of purchasing from the beneficiaries of the residue the lauds specified at the prices named. I think this was probably the true construction, and that neither of the devisees named could be charged with the amount of the price per acre named until he had assented to and accepted the devise. This is the corollary of the rule that, if the devisee accepts the devise subject to a charge, he becomes personally responsible for the charge. Horning v. Wiederspalen, 28 N. J. Eq. 387; Dodge v. Manning, 1 N. Y. 302; Porter v. Jackson, 4 Amer. Prob. Rep. 226, 95 Ind. 210. In effect, then, the lands descended to the heirs at law subject to a right given by the will to each of the sons and son-in-law to take certain portions at certain prices, to be paid to the executors, and through them to the heirs at law. But this view of the effect in law of these devises does not affect the right of the complainant in the provision made for her. Martin Wyckoff declined to accept the devise of the farm to him at the price named, and made a contract with his brother and sister to purchase it at a less price, viz., $12,106; and the brother and sister conveyed it to him by deed dated April 18, 1871, with that sum named as the consideration. He afterwards conveyed it to other parties, and at the filing of the bill the greater part of it was vested in his widow, Elizabeth Wyckoff, the defendant, he having died insolvent.
The allegations and charges of the bill are quite meager and indistinct. After setting out the death of the testator seised of the lands in question, the proof of the will by the three executors, the arrangement between Martin Wyckoff and his brother and sister as to the price lie should pay for the homestead, and of the conveyance in pursuance of it, the non-payment of the annuity, the several subsequent conveyances of the lands devised to John and Martin, it proceeds to charge that Martin and John have permitted and allowed the sums due from them to fall in arrear, so that there is due from Martin $770, and from John $948; and then charges that said sums of money, with interest, together with what should in the future accrue, shall be decreed to be a lien and charge upon said real estate so devised to Martin and John; and prays a decree accordingly, and a sale in default of payment. No default is charged against Garhart, nor relief prayed against him; but he is made a party as executor. No allegation is found in the bill, nor was proof offered at the hearing;, as to the manner in which the consideration named in the deed from John and Mrs. Garhart to Martin for the homestead was arranged between the parties, nor as to whether any of it ever actually came to the hands of the executors. The proof shows that Garhart, the son-in-law, has paid his share of the annuity to the widow, but that Martin Wyckoff and John V. Wyckoff have failed to pay. Martin stopped paying in 1877, and the effort is to charge the farm conveyed to him with the payment of the arrears due both from Martin and John, or at least those due from Martin. No objection was taken to the frame of the bill on account of multifariousness. Complainant's counsel rely upon two canons of construction, which they contend are well established and apply here, and either of which, they contend, is sufficient to sustain their claim. The first is that when land is devised to a person either individually or as executor, and the devisee, either as individual or as trustee, is directed to pay a legacy, such legacy, whether it be a single sum or an annuity, is, by implication, charged upon the land so devised. Second. That where there is a gift of a, legacy and a devise of the residue, consisting of both personal and real property in a blended mass, there is a like charge, without regard to the sufficiency of the personalty to discharge the legacy. I will deal only with the first proposition or canon; and in its support may be cited: Schanck v. Arrowsmith, 9 N. J. Eq. 314, at page 330; Cox v. Corkendall, 13 N. J. Eq. 138, at page 140; Mathewson v. Saunders, 11 Conn. 144; Elliot v. Hancock, 2 Vern. 143; Alcock v. Sparhawk, Id. 228; Harris v. Fly, 7 Paige, 421, at page 425; Lypet v. Carter, 1 Ves. Sr. 499; Preston v. Preston, 2 Jur. (N. S.) 1040; Peacock v. Peacock, 34 Law J. Ch. 315, per Vice-Chancellor Wood; Cross v. Kennington, 9 Beav. 150; Gallimore v. Gill, 2 Smale & G. 158, 23 Law J. Ch. 604, 8 De Gex, M. & G. 567; Porter v Jackson, supra. I think these authorities do establish the canon in question most clearly, as claimed by the complainant. And the only question here is as to its application to the present case, and, so applying it, we find an expression of an intention by the testator that his son Martin should have the homestead farm of 155 acres at the price of $90 per acre, to be paid to his executors; and that he should have one-third of the residue of his estate, of which the price to be paid for the farm was to form a part; and that he must pay the complainant $70 a year. In effect, as I construe it, he said to Martin: "I give you the homestead farm, but you must pay your brother and sister each $30 for each acre of it, and your mother $70 a year during her life." This seems to me to be the actual meaning and effect of the devise to Martin, and, thus interpreted, subjects the land to a charge in favor of the complainant.
Several objections are made to this view and result, which I will notice. First, it is said that Martin did not take under the will, but by purchase from his brother and sister; but the answer is obvious. He could not alter the intention of his father, as expressed in his will, by any act of his; and it is the intention of the testator which we have now to deal with. Nor could he take the land upon any new terms agreed upon with the other beneficiaries under the will, and not assented to by the complainant, without performingthe farm by Martin, have not answered. I think the complainant is entitled to a decree, but that the charge against Martin Wyckoff's farm must be confined to the annuity with which he is personally liable; and also the same with regard to the lands devised to John V. F. Wyckoff.