The opinion of the Court was delivered by
Ro&ers, J.
testator devised to his son, Levi Downer, the *62defendant, tbe premises in dispute, to him, his heirs and assigns forever: provided, however, that he shall pay over to his executors, for the benefit of the legatees thereafter mentioned, the sum of 3500 dollars, in four payments: viz. 500 dollars within three calendar months after his decease, and 1000 dollars yearly after-wards, until the whole was paid. This is, most clearly, a conditional estate, for where land is granted to a person “on condition,” or “provided always,” or “if it shall so happen,” or so “that he pay to another a specific sum,” within a specified time, it vests in him a conditional.estate, and if he does not punctually make payment of the money, his estate has become voidable by entry. Co. Pitt. 303; Wheeler v. Walker, 2 Conn. Rep. 201. The devisee having refused to pay or accept the devise, according to the authority of the case of Wheeler v. Walker, it reverted to the heirs of the devisor, who had a right to enter, for the condition broken and bring suit by ejectment for the recovery of the land. In the case cited, the question was, whether it was a devise of an estate to the son, in trust to pay a certain sum to the widow and a certain sum to each of the daughters, within a specified time, or whether it was a conditional estate. The court held it to be a conditional estate, and as such the action by ejectment .by the heirs would lie to recover • the possession. Whereas, if it had been a trust, as was contended, ;the remedy would have been only in chancery. R is not to be understood the court decided that even in the case of a conditional devise, the daughters might not enforce payment of .the money payable to them by application to a court of chancery. Nor do I .understand them to intimate, but directly the contrary, that the recovery of the heirs enures to their sole and exclusive benefit, divested of the lien of the money ordered to be paid by the testator to his widow and daughters. It would be unreasonable and unjust to hold that .the refusal of the devisee to accept, or his subsequent failure to pay, could operate so injuriously to their rights. But this would seem to be the effect of the decision of the learned judge who tried this cause, for if the devisee died intestate, so far as this . property is concerned, it would seem to follow that the proceeds, .or the land itself, must -be equally divided among all the heirs of the testator, to the exclusion of the rights of-those.members of the family to whom this money is bequeathed. This construction would • undoubtedly defeat the intentipn of the testator, which is the cardinal rule. The court consider this as a lapsed devise, but a lapsed devise is where the devisee-dies after the making.of the will and ■before the testator. But here .the devise.e ,is .still-aliye, and the estate immediately vested, upon the death of the testator, as a conditional fee simple. Hayden v. Stoughton, 5 Pick. Rep. 533. This was a condition subsequent, and the estate vested immediately in virtue of the devise. The fee does not rest in abeyance until the' devisee accepts the devise, nor until he pays -the money. Whether a person dies testate or intestate must be determined at .the death *63of the testator, and cannot rest on matters of subsequent occurrence. If this be so, the question is, what power had the executors to sell? Their power by the will only extends to the sale of such real estate as was not otherwise disposed of by the testator. From this it necessarily results that the sale to the plaintiffs by the executors is void, and that the title of the defendant, derived from the proceedings of the orphans’ court, is also void.
It at one time occurred to us, on the authority of Wheeler v. Walker, 2 Conn. Rep. 201, that this suit might be supported by the plaintiffs, as the heirs of the testator. And this is so at common law; but since the passage of the act the 24th of February, 1S34, which gives a remedy to the legatee, the remedy by ejectment is taken away, as it would be in the teeth of another act, which declares, that.in all cases where a remedy is provided, or duty enjoined, or any thing directed to be done, by any act or acts of this commonwealth, the direction of said acts shall be strictly pursued, &c. The act of the 24th February, 1834, enacts, that “ when a legacy is or shall be hereafter charged upon or payable out of real estate, it shall be lawful for the legatee to apply by bill or petition to the orphans’ court having jurisdiction of the accounts of the executor of the will by which such legacy was bequeathed; whereupon such court, having caused due notice to be given to such executor, and to the devisee or heirs, as the case may be, of the real estate charged with such legacy, and to such other person interested in the estate as justice may require, may proceed, according to equity, to make such . decree or order touching the payment of the legacy out of such real estate as may be requisite and just. Although the interest which the plaintiffs have under the devise is not technically a gift, or legacy, yet it may be considered an interest payable out of the real estate devised. The land is the fund to which the beneficiaries must look for the payment of the pecuniary bequest to them. They have no personal action against the devisee, he having .refused to accept the devise, and unless the fund is made available to them, they are without remedy. This is a remedial act, and it would impair its usefulness to give it a narrow construction. The act provides for calling all the parties in interest before the court, who have power in -the premises to do all a court of chancery could do, and under their plastic hands to.administer justice in a most complete, and ample manner. In the case at bar they may order the property to be sold and may distribute the proceeds, paying in ,the first place the pecuniary, bequest to the legatees, and if. any thing should remain, distributing the surplus to the heirs of the devisor. Cases may arise where a devisee-may refuse to accept a devise of greater value than the money charged upon it. If such a case should occur it would .be but equitable that it should enure to the benefit of all the heirs and not exclusively to the legatees.
Judgment affirmed.