¶1I think the language used in the bequest to the plaintiff indicates that the testator intended that she should be furnished with sufficient pecuniary means for her support according to her condition in life; The legacy is of “ her support.” It is to be “ paid out of the whole property,” not supplied by means of any diminution of the property devised or bequeathed to the defendants. Nor was there a gift to the defendants upon trust to apply a part thereof to the support of the plaintiff. On the contrary, the legacy is to the plaintiff directly, and it is expressly excepted from the gifts to the defendants. They took only what remained after satisfaction of the legacy. The legal effect was to charge the whole estate, left by the testator, with an annuity for the plaintiff’s support indefinite as to the nominal amount thereof, but limited only by her reasonable needs. She is to be paid, not fed or clothed, by the defendants. ■ It is the duty of the court to determine the amount intended to be bequeathed. (Thorp v. Owen, 2 Hare, 610; Broad v. Beavan, 2 Russ., 511, n.; Forman v. Whitney, 2 Keyes, 165.) We think the sum fixed by the court under all the circumstances is not unreasonable.
¶2The defendants having accepted and held the estates devised to them respectively, charged with the payment of the annuity, they became personably liable to pay the sam e. No demand was necessary to give to the plaintiff a right of action to enforce such liability. The case in 13 New Hampshire, 1 (Holmes v. Fisher), was put upon the ground of waiver. But the facts of this case preclude the idea of waiver. (Peoples Bank v. Mitchell, 13 N. Y., 406.)
¶3The judgment should be affirmed, with costs.
¶4Judgment affirmed, with costs.