By the Court:

The argument of this cause in this court has turned upon questions which are not presented by the case made in the bill. We are not called upon to decide whether the land which Jacob Whiteman devised to his son Jacob was charged with the legacy, nor whether the son was personally liable for the legacy by reason of the devise to him, and the acceptance of that devise by him. The bill states a ease against the executor alone, and prays the payment of the legacy out of the estate in a due course of administration. The will of the testator, which is a part of the evidence, shows that certain lands of the testator were devised to his son Jacob, and that Jacob was directed to pay the legacy in three years after the decease of the testator: considering the legacy as one which did not lapse and fall into the residue of the estate, and that Jacob by accepting the devise to him would become bound to pay it, yet we see no pretext for a decree that Jacob, as executor was bound to pay it in a course of administration ; nor do we perceive upon the face of this bill, that Jacob the son, was liable as devisee, or personally, in consequence of his acceptance of the devise. The bill does not charge that he was devisee, nor does it state that he accepted any devise or gift of this land so as to render him personally responsible for the legacy, according to the cases in 10 Johns. Rep. 148; 6 Johns. Ch. Rep. 36, 38. For the reason, that the case made by the bill is against the the executor, who is not liable as such in any sense, for the payment of this legacy, as he has greatly overpaid the personal estate in the discharge of debts and funeral expenses, we cannot under a general prayer for relief, *407decree the payment of the legacy by him as a devisee, or that he is personally answerable for it in virtue of the will. And to enable us to charge him personally according to the cases cited, or as a devisee of land charged, it should have been averred in the bill that the devise was made, and that he had accepted it. In case such a bill had been filed, yet had the answer denied the acceptance of the devise and been sustained by proof, the decree of this court could not have been for the payment of the legacy. To decree payment of the legacy by Jacob Whiteman, as executor, would be to deprive him of his just defence on this ground. Should a bill be filed against him personally, setting forth the facts stated in this, and the additional facts of the devise, its value, and his acceptance of that devise, there may be a case made for a decree that he shall pay the legacy; but that decree could not in any event be against him as an executor. We only re-affirm the principle decided in 1 Johns. R. 559, Bebee vs. Bank of New York, that “ the relief granted must be agreeable to the case made by the bill, (Miford’s Pleadings, 38,) and that the court will not in all cases permit a bill framed for one purpose to answer another, especially if the opposite party may be thereby surprised or prejudiced whence we decide that the bill be dismissed without prejudice to any future application for relief, and that the decree of the chancellor be affirmed with costs.