¶1By the terms of the will, the legacy given to the complainant was to be paid out of the estate of the testator, by John B. Borst, sole devisee and legatee of all the property of the testator, (except twenty acres of land devised to another) real and personal, subject to the life estate therein devised and bequeathed to the testator's widow. The legacy thus given became an equitable lien upon the reversionary interest, as well in the real as personal property, so devised and bequeathed to Borst; and a personal charge upon him in case of his acceptance of the testator's bounty, in respect to the estate devised and bequeathed to him. (Harris vs. Fly,7 Paige 421; Glen vs.Fisher, 6 Johns. Chy. 35.)
¶2J.B. Borst accepted the devise. That is shown by the mortgage upon the real estate devised, executed by him to Maxwell, in 1826, containing a power of sale. He thereby became personally bound to pay the legacy given to the complainant according to the terms of the will, which a Court of Equity will compel him to discharge. As between him and the complainant, it is not material for her to show, that he had procured an account and payment from the executors of the testator, of the proceeds of the personal estate prior to the filing of her bill. She may sustain her claim against him personally, and enforce her lien against any of the property devised or bequeathed to him remaining in his hands, without calling upon the executors of the testator for an account and payment; although it would have been competent for her to have made the executors parties with him, and thereby reached the personal fund in his hands, that being the primary fund for the payment of her legacy.
¶3But as between the complainant and the defendants, Manning, Becker and Boyd, they have an equitable right as against her, to insist that she shall first exhaust her remedy, not only as against Borst personally, but as against that portion of the property, real and personal, remaining in his hands, or to *303 which he is entitled, before she can enforce her lien as against that portion of the property purchased by them on the sale under the mortgage foreclosure.
¶4Although the complainant's legacy in equity is a prior lien upon all of the estate given to Borst by the will, for its satisfaction, yet that portion of it remaining in the hands of Borst and the proceeds of the personal estate to which he is entitled, is primarily liable for its payment in exoneration of those portions which have been purchased by Manning, Becker and Boyd. If the bill showed that the personal estate had been exhausted in the course of administration, or that the persons who are accountable for it are not responsible, or that it had been accounted for and paid or delivered to Borst, or if the executors in whose hands the same remained, were parties to this suit; in either case the complainant might have been entitled, in case her legacy remained unpaid, to a decree for payment and satisfaction out of that portion of the real estate so purchased by Manning, Becker and Boyd, for so much as should remain unpaid after applying what should be received under a decree against Borst personally, and for sale of that portion of the property remaining in his hands, and after the application of the avails of the personal estate undisposed of by him. But the complainant has failed to present by her bill such a case as will entitle her to a decree to enforce her lien as against the devised premises in the hands of Manning, Becker and Boyd, in the event that she does not obtain satisfaction under a decree against Borst, and for the sale of that portion of the premises still remaining in his hands, on the ground that it does not appear but that the personal estate still remains in the hands of the executors which might be reached and applied upon or in satisfaction of her demand.
¶5The Chancellor dismissed the bill as against Manning, Becker, and Boyd, on the ground that there was sufficient evidence to show that the complainant's legacy had been paid to Dodge, her husband, in his life time. I have considered the evidence relied on to show that fact, and am constrained to say that I am unable to come to that conclusion. There are, *304 it is true, some circumstances which render it quite probable that payment was made as is alleged, but I do not see in the case any thing beyond that, that should be deemed proof of the fact. The testimony of Hezekiah Manning, the only witness to that point, falls far short of it. In my judgment it amounts to but little else than an inference of the witness founded upon conjecture. But from the view which I have taken of the case, I am of opinion that the decree was right, and should be affirmed.
¶6BRONSON, J., also delivered an opinion in favor of affirming the decree, substantially upon the grounds stated in the opinion of JEWETT, CH. J.
¶7The other Judges concurred in the result of the opinion delivered by GRAY, J., and therefore it was