Robert Emmet Dunham, Appellant, v. John A. Deraismes et al., Respondents

Robert Emmet Dunham, Appellant, v. John A. Deraismes et al., Respondents. (Submitted February 11, 1901; decided March 19, 1901.) Motion for realignment. (See 165 N. Y. 65.) [MAJORITY — Cullen, J.] Cullen, J. We have held in our decision that the plaintiff’s annuity was charged on the testator’s land in the hands of his devisees. The complaint does not allege nor has the trial court found any demand on the devisees but only on the executor. The plaintiff suffered years to elapse before bringing this action, the institution of which constitutes the only demand to be found in the record. Gilbert v. Taylor (148 N. Y. 298) is an express authority to the effect that under such circumstances interest should not be allowed prior to the commencement of the action. Conceding that the real estate of the testator is charged en bloe with the plaintiff’s legacy as an entirety, still so far as personal obligations were created by the acceptance of the devise, each devisee is only liable for the same aliquot share of the annuity as is devised to him of the estate. (Larkin v. Mann, 53 Barb. 267.) The motion should be denied, with ten dollars costs. Parker, Ch. J., Gray, Bartlett, Martin, Vann and Werner, JJ., concur. Motion denied.