Lois Sheldon versus Hatsell Purple, 15 Pick. 528

Putnam J. delivered the opinion of the Court. We all ^ink, that the construction which the judge who sat at the trial, gave of the will, was right. The legacy to the plaintiff was a charge upon the whole estate, real as well as personal The personal estate having been exhausted, the legacy is clearly a charge upon the real estate devised to Oliver Sheldon, and the real estate went to the defendant subject to that charge, in virtue of the conveyance to him from Oliver Sheldon. The authorities cited by the plaintiff’s counsel leave no doubt in our minds upon this point.

It is contended for the defendant, that the bond of Olive Sheldon, the executor of the will, to pay the debts and lega cies, should have been relied upon by the plaintiff for the recovery of the legacy. But we are of opinion that it was a cumulative remedy, and that the plaintiff may resort to the land, or to the bond, at her election. Baker v. Dodge, 2 Pick. 619. It was not in the power of the executor to discharge the lien without the consent of the legatee. And we think it very clear, that the action is well brought against the defendant, as the purchaser and tenant of the land. Swasey v. Little, 7 Pick. 296.

And we are all of opinion, that the facts which are contained in the report warranted the plaintiff in the commencement of the suit, without any other or more formal notice than is to be inferred from the same. The defendant knew the destitute condition of the plaintiff, or was bound to have known it. She had a right to her support in the north room of the house, which was devised to her. It was the duty of the defendant to have furnished necessary sustenance for her at that place. But he wholly neglected to do so.

She lived there upon charity, as long as she could, and was afterwards obliged to resort to the poor-house in Bernardston for support, in the spring of 1833 ; and the defendant knew that she was there, and was informed by one of the overseers of her situation, and that they should endeavour to make him pay for her support. Under these circumstances, we think it clear, that the defendant was legally liable to be sued for the legacy, without any other notice or demand.

We think, however, that by the phrase “ all necessaries she may need, either in sickness or health,” the defendant was not bound to provide for her support if she could provide for herself by her own labor, as she had been accustomed and was able to do. So the verdict is to be reduced from the sum of $25-25, to the sum cf $21-25, and judgment is to be entered accordingly.