
    Annie I. Laurens vs. B. H. Read and others.
    
      Will — Marshalling assets — Residuary real estate not charged with payment of Legacies and Annuities.
    
    Pecuniary legacies and annuities, bequeathed by a will, which took effect before the Act of December, 1858, was passed :-~Seld, not to be charged upon residuary real estate which passed under a later clause of the same will, devising “all the rest and residue’’ of the testatrix’s real and personal estate to trustees in trust, <fec., the testatrix when she made her will, and at the time of her death, having sufficient personal estate to satisfy the legacies and provide for the annuities.
    BEFORE LESESNE, OH.; AT CHAMBERS, MAY, 1868.
    This case came before the Chancellor on exceptions to the Master’s Beport, and was beard at Chambers by consent. The point decided by the Court arose under the will of Margaret H. Laurens, which was admitted to probate on the 5th June, 1858, and is as follows:
    “ In the name of God, Amen: I, Margaret Harleston Laurens, being in good health and sound mind, do make this my last will and testament, revoking and annulling all former wills by me made. Item : I give to my adopted grandson, Alfred Baoul Walker, twenty thousand dollars, to be paid to him as soon as he complies with the conditions I hereby annex, but not before he arrives at the age of twenty-one years, the interest to be applied to bis support and education, or such portion of it as my executors and his guardians think fit so to appropriate, until he receives the capital, and surplus, if any, to be added annually to the principal. It is my wish and intention that he shall receive no part of the capital until he studies and acquires a profession, and receives the best classical education the institutions of South Carolina afford ; and I earnestly recommend to him not only to acquire a profession, but to practice it. I leave it at his option, should his turn of .mind or interest make it most advisable to pursue business, to do so; but he must either have a profession, or enter into business with the approbation of his guardians before he receives what I leave him in this will, my desire being to start him in life, free from pecuniary embarrassments, and not to make him an idler; but should ill health, or any unforseen cause occur to incapacitate him from acquiring a classical education or profession, or following business, then at twenty-one years he shall receive what he is entitled to under this will; and I direct that, should it please God in His wise Providence to remove me béfore be is of an age to protect himself, that he - be placed under the care and domestic charge of his god-mother and kind friend, Miss Susan Quash, and that a suitable provision be paid to her annually for his support and clothing.
    “ Item : I give to my servant, Sarah, now about me, and fifteen years of age, one thousand dollars, to be vested in good and safe stock, and the interest to be paid her in quarterly payments, for her comfort and support during her life, and at her death to be equally divided among her issue alive at the time of her death. I constitute and appoint my friends, named as my executors, her guardians and trustees, and request them to aid and assist her in any way they can in her occupation and business; and I further direct that her taxes, doctor’s bills, and pi’ofessional advice and counsel, be paid out of my estate. I direct that she be allowed to work out, and the wages she makes be applied to her support, and that of her children, should she have any, and that her children be placed under her care, and the profits of their work be applied to their support, and that they be put to trades as soon as they are old enough, and any expenses incidental thereto to be paid out of my estate, and they be allowed to remove from the State should it be for their advantage to do so. Should I be removed before she grows up and is able to take care of herself, I direct that she be placed under the charge of my mother’s waiting-woman, Mary Ann. I give to old Sue, the servant of my' father and mother, fifty dollars a year, while she lives, to be paid to her monthly. I give to Mary Ann, fifty dollars a year, while she lives, and her time, and direct that she be,allowed a little girl to.wait on her and assist her while she lives — the fifty dollars to be paid to Mary Ann in quarterly payments. I give to my sister, Mrs. Eliza R. Toomer, one thousand dollars. I give to my sister, Mrs. Ramsey, five hundred dollars. I give to Mrs. Margaret A. Dawson, five hundred dollars. I give to my cousin, Caroline A. Ball, wife of Isaac Ball, one thousand dollars, for her sole and separate use, not subject to her husband’s debts. I give to my cousin, Thomas Corbett Simons, five hundred dollars. I give my gold watch which I am now wearing, to my little cousin, Louisa Rutledge Ball. I give my brooch, containing my father’s picture, to my cousin, Mary M. Allen. I direct that five hundred, dollars be paid annually to my sister, Mrs. E. R. Toomer, for her house rent while she lives. Item: All the rest and residue of my estate, real and personal, of which I am now possessed, or may be possessed of at the time of my death, or may be entitled to from any quarter whatever, I give to my friends and relatives, John Harleston Read, Sr., John Harleston Read, Jr., Benjamin Huger Read, Captain D. N. Ingraham, John Laurens, to have and to hold in trust for the use of my granddaughter, Annie Isabel Laurens, during her life, not subject to the control, liabilities, debts, or contracts, of any husband or husbands she may marry, but for her sole and especial use, and the income to be paid only to her order and receipt, and at her death, I give and bequeath the same to her issue alive at the time of her death, to be equally divided among them, if more than one, share and share alike, to them and their heir or heirs forever; and I further direct, and it is my will, that when my grand-daughter marries, that a settlement be made of all the property to which she is entitled as her father’s estate, and that her marriage settlement be made after the model of my father and mother’s marriage settlement, which provides liberally for the husband, and secures the property at the death of both to the children and the representatives of such as may be deceased. Should it so happen that my granddaughter dies, leaving no issue alive at the time of her death to take the estate, then I direct that it be divided in such manner as I hereby specify one-half to my neice, Elizabeth Corbett, during her life, and at her death to her children, the other half to be equally divided (except one thousand dollars, which I direct to be added to what I have given my servant, Sarah, to be vested in the same way, and disposéd of as I have above mentioned in her legacy) between my adopted grandson, Alfred Raoul Walker, Mrs. Caroline A. Ball, Louisa Nichols, wife of Rev. Mr. Nichols, being the daughters of my cousin, Edward Rutledge, Mrs. Eliza R. Toomer, Mrs. Eleanor Ramsey, and Corbett Simons, and I constitute and appoint my friends and relatives, John Harleston Read, Sr., John Harleston Read, Jr., Benjamin H. Read, Captain D. N. Ingraham, and John Laurens, my executors and the trustees of my estate, and request them to be the guardians of my granddaughter and of my adopted grandson, and my servant, Sarah. I recommend to my grandson, Alfred Raoul Walker, to assume the surname of his great-grandfather, Mr. Pinckney. Item : Should it so happen that my grandchild should leave minor children, and those minor children should die before they arrive at years of discretion to take the estate, then I direct that the estate be distributed as I have directed in the event of her dying without issue. Should my neice, Elizabeth Corbett, die leaving no issue, then the portion which she may, in the contingency of my grandchild’s death without issue receive, is at her death to revert and be disposed of as I have directed — be divided between Alfred Raoul Walker, Caroline A. Ball, Louisa Nichols, Mrs. Toomer, Mrs. Ramsey, and Corbett Simons, to them and their heirs forever. I give to my cousin, Caroline A. Ball, while she lives, five hundred dollars a year for the education of her children and her comfort, unless by any circumstances not now foreseen, she or her children become possessed of an income of two thousand dollars a year, in which event, this annuity of five hundred dollars a year shall cease; this is independent of the legacy already mentioned in this will.”
    The case was referred to Mr. Tupper, one of the Masters, who submitted the following report:
    Margaret H. Laurens, by her last will and testament, gave the following pecuniary legacies, viz.: to Alfred Raoul Walker, $20,000; to Eliza R. Toomer, $1,000; to Mrs. Ramsey, $500; to Mrs. Margaret Dawson, $500; to Caroline A. Ball, $1,000; to Thomas Corbett Simons, $500; and the following annuities, viz.: To Caroline A. Ball, $500, and to Mrs. Eliza Toomer, $500. She also specifically bequeathed to Louisa R. Ball, a gold watch, and to Mrs. Mary M. Allen, a brooch containing her father’s picture. After giving these legacies and annuities, she then gave “all the rest and residue of her estate, real and personal,” to certain trustees for the use of her granddaughter, Annie I. Laurens. The testatrix died in May, 1858. Her will was proved by J. Harleston Read, Sr., and Benjamin II. Read, who alone qualified as executors, and accepted the trusts conferred upon them by the residuary clause of the will. Mrs. Laurens left a large amount of real -and personal property, which, was all sold a short time after her death. The assets of the estate consist at present of the following securities:
    1. Several bonds given for the purchase of negroes.
    2. Cash, the proceeds of personal property.
    S. A bond of B. H. Bead to James W. Gray, secured by a mortgage of the Hagan plantation, and purchased with funds derived partly from the sale of the real estate, and partly from the sale of the personal property of Mrs. Laurens.
    4. A bond of John B. Irving, given in part payment of the purchase-money of Earmfield, one of the plantations belonging to Mrs. Laurens’ estate.
    At the death of the testatrix, her estate was amply sufficient to pay all the legacies and annuities, and to leave a large surplus for the residuary legatee and devisee, but in consequence of the losses it has sustained from investments in Confederate securities and other causes, it is now insufficient to pay the pecuniary legacies and annuities.
    The single question which has been argued before me is whether the annuities and pecuniary legacies are a charge upon the proceeds of the real estate devised to the trustees.
    It was strongly urged in argument that it is a well established rule of this Court that legacies are not entitled to have the assets marshalled against the devisees of real estate, whether given specifically or in the form of a residue, every devise of land being in fact specific.
    Very high authority can certainly be cited in favor of this proposition. In the case of Forrester vs. Lord Leigh, where the devise was of all the testator’s real estate in several counties named or elsewhere, pecuniary legatees claimed to throw the specialty debts upon those estates, and it was urged that the devise was not specific, but Lord Hardwicke refused the relief, observing that every devise of land was specific, and assigning as his reason that personalty given by will fluctuates, but land does not, as no more passes than the testator had at the time of making his will. The same view of the law was takén by Lord Henley in Scott vs. Scott, Amb. 383, and by Lord Alvanly in Keeting vs. Brown, 5 Yes. 359. Mr. Jarman sums up the results of the English cases in these words, “But legatees are not entitled to have the assets marshalled against the devisees of real estate either specific or residuary.” 2 Jar-man, 601.
    The doctrine on this subject, however, has fluctuated, and it is difficult to reconcile all the cases. In JBanby vs. Roberts, Amb. 127, Lord Hardwicke says: “If one having land and personal estate makes his will, being indebted by specialty, and gives specific legacies, and then gives the rest and residue of his real and personal estate, if creditors exhaust the personalty, the legatees may stand in their place and come upon the residuary devisee, because he has only the rest and residue.”
    In the more recent case of Spong vs. Spong, decided in the House of Lords, and reported in 3 Bligb, 84, N. S., the contest was between a residuary devisee and a specific devisee. The testator, after devising some particular lands to one person, and giving certain legacies, charged and made liable all his real and personal estate with the payment of his aforesaid legacies, and then gave to his son the residue of his real and personal estate. It had been held in the Court of Exchequer, that the lands specifically devised, and those which passed under the residuary clause, were equally liable to the payment of the legacies upon the principle that as all devises of freehold were specific, there was no ground for any distinction. In the House of Lords this was otherwise decided, with the concurrence of Lord Eldon and Lord Eedesdale, who appear to have been consulted. The decision certainly proceeded upon a distinction between lands specifically devised and a residuary devise of lands, as to which should be primarily liable to a general charge created by the will to which both were subject, and in delivering the judgment, Lord Manners says: “ By the general rule a specific devisee or specific legatee shall not contribute to make good a pecuniary legacy, but there can be no such rule applicable to a residue.” The judgment of Lord Coltenham in Mirehouse vs. Scaife, 14 E. C. B. 696, in which he reviews all the preceding authorities, shows that as late as 1887, this question was still regarded by the English Courts as unsettled. No subsequent case has been brought to my attention in which it has been set at rest.
    The only case in our own reports bearing upon this point is Brown vs. McMillan, 2 Hill, 457. There the testator devised to his son, all his lands not before disposed of for life, remainder to his eldest son, and Johnson, Oh., on the circuit held, “that unless these lands had been disposed of in due course of administration, being general and not specific legacies, they were unquestionably liable for the testator’s debts before personalty specifically bequeathed.” The attention of the Court does not appear to have been drawn to the point now under discussion, and no appeal was taken from this part of the circuit decree. I cannot, therefore, regard the case as a decisive authority.
    But I do not think it necessary to discuss the question whether pecuniary legacies are as a general rule a charge upon real estate devised under a residuary clause, inasmuch as I am of opinion that under the terms of this will the legacies and annuities are well charged upon the land. The gift to the trustees is of “ all the rest and residue of the estate real and personal.” The words “rest and residue of my estate real and personal,” must mean what remains of those estates after deducting some matter or thing which would diminish their amount or value. The testatrix having made no precedent gift of any part of her real or personal property, the only matters or things referred to in the will which could cause such diminution are the legacies and annuities previously given.
    That a bequest of legacies, followed by a gift of all the residue of the testator’s real and personal estate, operates to charge the entire property with the legacies, is established by the uniform current of the English decisions.
    In Hassell vs. Hassell, 2 Dick, 526, where the testator devised and bequeathed certain legacies, and then gave, devised, and bequeathed, all bis real and personal estate not therein before disposed of, Lord Ealhurst held that the legacies were charged upon the real estate. In Brundell vs. Boughton, 2 Atk. 268, Lord Hardwicke seems to have thought that where a testator gave certain legacies, and then the rest of his estate real and personal to A., whom he appointed executor, the legacies were charged upon the land. In Bench vs. Biles, 4 Madd. 187, where the testator gave all his real and personal estate to his wife for life, and, after her death, gave various legacies and all the rest, residue, and remainder of his real and personal estate he gave, devised, and bequeathed to his nephews, P. and W., share and share alike, Sir John Leach, Y. C., held that the legacies were charged upon the whole estate. “ The testator,” he said, “ here gives all bis real and personal estate to his wife for life, blending them together as one fund for her use, and, after her death, he gives several pecuniary legacies, and then the rest, residue, and remainder of his real and personal estate to his nephews. He plainly continues after his death to treat them as one fund, the rest, residue, and remainder of which, after payment of his legacies, is to go to his nephews.” In Cole vs. Turner, 3 E. 0. .R. 714, testator gave an annuity and pecuniary legacies, and then devises all the rest, and residue, and remainder of his freehold, copyhold, and leasehold estates to trustees, for the use and benefit of his children. It was held that the annuity-and pecuniary legacies given prior to the devise were well charged upon the freehold, copyhold, and leasehold estates. The Master of the Rolls in delivering judgment, says: “The freehold, copyhold, and leasehold are not devised to the trustees, but the rest and residue of these estates, that is, what remains of these estates after some prior purpose is thereout satisfied. But what prior purpose could the testator here contemplate, except the satisfaction of the annuity and legacies previously given.” In Mirehouse vs. Scaife, a testator after bequeathing certain pecuniary legacies, declared his will to be that all his debts and all the above legacies should be paid within six months after his decease, and all the residue of his estate, both real and personal, the testator gave to A. It was held by Sir L. Shad well, Y. C., and afterwards by Lord Cottenham on appeal, that by these words the real estate was charged as well with the legacies as with the debts. “ To attribute different meanings to the same words in the same sentence,” says Lord Cottenham, “may sometimes be necessary, but nothing but necessity can justify it, and when the testator spoke of the rest and residue of his personal estate, he certainly meant what would remain after payment of his debts and legacies. Is it not natural to suppose that he used those words in the same sense when applicable to his real estate?’
    These authorities seem to me to be conclusive of the present case. I find that the pecuniary legacies and the annuities given by Mrs. Laurens are well charged upon the lands devised to the trustees.
    It was urged in argument that even if the realty and personalty are to be regarded as a common fund for the payment of the legacies, inasmuch as Mrs. Laurens died leaving abundant personal estate to pay the legacies, and the present deficiency in the assets has been caused by the 
      devastavit of the executor, the legacies and devisee must abate proportionally, and that there being at the testator’s death a residue of a certain sum, the residuary legatee is entitled to rank as a legatee of that sum.
    In Dyose vs. Dyose, 1 P. Win. 305, Lord Cowper in the case of deficiency by a devastavit, held that what remained of the estate was devisible not among the pecuniary legatees alone, but among all the legatees according to the proportion of their legacies, and allowing the residuary legatee to claim as a legatee of the amount of the residue as it stood at the death of the testator. This decision came under the consideration of Lord Tburlo'w, in the cases of Fonnereau vs. Pointz, 1 Br. Ch. 0.468, and Humphreys vs. Humphreys, 2 Cox, 186, on both occasions the doctrine of it was condemned, and this condemnation was approved by Sir VYm. Grant, in Page vs. Linpingwell, 18 Yes. 466.
    I am, therefore, of opinion, and so find, that the pecuniary legatees and annuitants are entitled to be paid in full before any part of the estate can be applied to the payment of the residuary bequest to the trustees of Annie Isabel Laurens.
    The complainant, Annie I. Laurens, excepted to the Master’s Beport upon the following grounds:
    1. Because the Master erred in holding that the pecuniary legacies and annuities were charged upon the land devised to the trustees of Annie I. Laurens under the residuary clause of Mrs. Laurens’ will.
    2. Because the estate having become insufficient to pay all the legacies, by reason of the devastavit of the executor, the residuary legatee is entitled to claim as a legatee of the amount of the residue as it stood at the death of the testatrix.
    
      Lesesne, Ch. This cause came up on the Master’s report and exceptions thereto by the complainant. As the object of the parties is to obtain, without delay, the judgment of the Appeal Court upon the legal questions involved in the case, and as the points are fully discussed in Mr. Tupper’s report, I proceed to comply with the wish expressed by the counsel that a formal decree should be rendered overruling the complainant’s exceptions.
    It is ordered and decreed that the exceptions be overruled, and the Master’s report be confirmed and made the decree of the Court.
    The complainant appealed from the decree of the Chancellor on the following grounds:
    1. Because his Honor erred in holding that the pecuniary legacies and annuities were charged upon the land devised to the trustees of Annie I. Laurens under the residuary clause of Mrs. Laurens’ will.
    2. Because the estate having become insufficient to pay all the legacies, by reason of the devastavit of the executor, the residuary legatee is entitled to claim as a legatee of the amount of the residue as it stood at the death of the testatrix.
    
      Porter & Conner, for appellant.
    Pressley, Lord, & Inglesby, contra.
   The opinion of the Court was delivered by

Wardlaw, A. J.

By an Act of our Legislature, passed in 1858, (12 Stat. 700,) it is enacted that real estate acquired after the making of a will, shall pass thereunder as personal estate does. This takes away the reason under which a residuary devise of real estate was held to be specific, because it was made definite by reference to ownership at the making of the will, (Forester vs. Leigh, Amb. 171,) but it does not affect the case before us, for here the will was made, and the testatrix died before the Act was passed. In speaking of the law, I must then be understood to mean the law which governs the case, and to save words I will-speak of it as if it still remained unchanged.

-The agreement of counsel at the bar brings before this Court some circumstances which do not appear in the Master’s report. The testatrix at the making of the will had one granddaughter, an orphan of tender years, her only descendant. She had previously adopted for a grandson a youth, who was a stranger to her blood and her family. She owned two plantations, a house and two separate lots in Charleston, ninety-six slaves, two pews in St. Philip’s Church, plantation utensils, &c., all of which were in 1860 sold, under some order of .Court, partly for cash and partly for bonds, at prices amounting to about $105,000, to wit, the realty for about $50,000, and the personalty for about $55,000. Of the proceeds of sale, $40,000 or more, paid to the executor or uncollected, have been lost, so that the balance, which may be realized from the sales of the personalty, will be insufficient to meet the pecuniary legacies and annuities.

The only specific legacies given by the will are a watch and a brooch. The pecuniary legacies (the largest being $20,000, to the adopted grandson, of which payment was long deferred) amount to $24,500, and the annuities (besides occasional aid to an old servant) to $1,150 per annum, ■which latter might have been expected soou to diminish by the death of the annuitants. To meet the annuities by interest would probably have required at first a capital of $16,500 — so that the whole amount of legacies and annuities might have required the investment of about $él,000— or $3,000 in cash and annual profits equivalent to the interest on $38,000, with accumulated means for the remote payment of $20,000.

The will shows no introductory grouping of all the property under such words as my worldly estate, but the sweeping extent of the residuary clause leaves no room for intestacy except as to real estate that might have been subsequently acquired.

The first item relates to the adopted grandson; the second item contains all the other legacies except an annuity, directed to cease upon a remote contingency, which is given in the last clause; the third item is in these words: “ Item: All the rest and residue of my estate, real and personal, of which I am now possessed, or may be possessed of at the time of my death, or may be entitled to from any quarter whatever, I give to my friends and relations,” (five gentlemen named,) “ to have and to hold in trust for the use of my grand-daughter, Annie Isabel Laurens, during her life, not subject to the control, liabilities, debts, or contracts of any husband or husbands she may marry, but for her sole and separate use, and the income to be paid only to her order and receipt; and at her death I give and ■ bequeath the same to her issue alive at the time of her death, to be equally divided among them, if more than one, share and share alike, to them and their heirs forever.” Following are directions concerning a settlement to be made, when her granddaughter marries, “of all the property to which she is entitled as her father’s estate;", and provisions in case of the granddaughter’s death leaving no issue “to take the estate.” By another item provision is made for distribution of the “estate,” in case of the issue of the granddaughter dying before they arrive at years of discretion “to take the estate.” The five gentlemen before ■named are appointed “my executors and trustees of my estate,” and are requested to be guardians of the granddaughter, the adopted grandson, and the- servant, Sarah; but neither to them, nor to either of them, is given any beneficial interest or any express power to sell real estate.

No devise precedes the gift of the residue, nor is there anywhere, except in the .residuary clause, mention of real estate.

No direction is given that the legacies shall be paid, either general or by the executors, besides the incidental introduction of the words to be'paid, to be applied, he shall receive, in the instruction concerning the grandson, and to be 'paid quarterly, to be paid monthly, to be paid out of my estate, to be applied, in reference to some of the annuities; all of which words seem to look to the acts of the executors, especially the discretionary allowance for the grandson is “as my executors and his guardians think fit to appropriate.”

There is no mention of debts, although there were some, nor of expenses, although of course they occurred.

Has the real estate been charged with the pecuniary legacies, either in common with the personal estate, or as an auxiliary, in case of the insufficiency of the latter?

Ordinarily, as it is acknowledged, the personal estate is the fund from which pecuniary legacies must be paid. A devise of land is specific, and there can be no abatement of specific devises or legacies to answer the pecuniary legacies; but for the pecuniary legatees, the appellees, it is urged that every testator may charge his real estate at pleasure, that this testatrix, by blending her estate, real and personal, in the gift of the residue, has subjected the whole to the payment of the legacies, by deduction of which the residue is to be ascertained, and that such gift of land in a residue is not a specific devise.

The power of the testatrix to charge her real estate with legacies is unquestionable. Has she done so, presents a question of construction, to be resolved by ascertaining the intent of her testamentary dispositions. Upon those who seek to change the general rule, is the burden of showing sufficient indications of her intent to do so.

The case of Spong vs. Spong, in the House of Lords, (3 Bligh, 84, N. S., 1 Y. & Jer. 300,) decided that where real estate was charged, the portions of it contained in a residuary devise should answer the charge, before the portions that were specifically devised; but that, too, was a question of construction and intention, and the general rule remains that every devise is specific, however subject it may be to the power of the testator to encumber it with charges and conditions. (Clifton vs. Burt, 1 P. Wm. 678; Warley vs. Warley, Bail. Eq. 409.)

In England, before the Act which made lands not specially charged, assets in equity for the payment of debts, very slight and uncertain indications of a testator’s intent to charge his real estate with his debts, sufficed to authorize the Courts to indulge the desire, frequently avowed, to make testators just to their creditors before they became generous to their devisees. (Astly vs. Paris, 1 Ves. Sen. 488; Godolphin vs. Pinneck, 2 Ves. Sen. 271; Williams vs. Chitty, 3 Ves. 551.) Where legacies were contained in the same sentence with debts, both were naturally brought under the same rules of construction; but there were grounds for distinction between them, inasmuch as debts existed apart from the will, whilst legacies depended wholly on it, aud creditors had given meritorious and valuable consideration, but legatees were objects of voluntary bounty, no more worthy of favor than devisees whom the general law preferred. (Kightley vs. Kightley, 2 Ves. Jun. 328; Keeling vs. Brown, 5 Ves. 359.) Therefore, where legacies stood alone in a clause, under which debts standing alone .would have been charged, a determination against the legacies involved no palpable inconsistency, and prevented the irregularity of giving to specific devises less effect than to pecuniary legacies.

The cases in which lands have been charged with legacies, may be ranged under the following six heads. If in any case there cannot be found some one or more of the circumstances, which are essential to some one of these heads, I think there is no authority for charging real estate in such case.

1. W here the charge is express. Here it may be observed that according to the ordinary and proper meaning of the term charged, lands charged become only auxiliary to the personal estate, which still remains primarily liable. Exoneration of tbe personal estate or subjection of lands to legacies in common with it, is in tbe power of a testator, but is more rare and difficult of establishment.

2. Where there is a general direction that legacies shall be paid, (that is, be paid indefinite, not be paid by executors, or be paid out of a special fund, 6r tbe like,) accompanied by something in tbe text or context, whence may be inferred that they shall be paid yirsi,- or that the devises shall be enjoyed after their payment. (Toot vs. Vernon 1 Vern. 708; Clifford vs. Lewis, 6 Mad. Rep. 33; Donce vs. Torrington, 2 Myl. & Keen, 600.)

Under this bead, with confirmation drawn from tbe sixth head, falls also ti.e case of Mirehouse vs. Scaife, (2 Myl. & Or. 695,) greatly relied on here by tbe appellees. In it Vice Chancellor Shad well overruled a demurrer upon one of two grounds that were argued, and Lord Chancellor Cottenham, upon appeal, concurred in overruling, but favored the other ground. The Lord Chancellor founded his opinion upon the terms rest and residue, used in the sense of the estate diminished by debts and legacies, “ coupled with the direction to pay his debts and legacies.” In the devise following a direction to pay debts and legacies he considered the case to be like Hassell vs. Hassell, (2 Dickens, 527,) and he answered the observation, that the direction to pay the debts and legacies was only intended to fix a time for the payment of them, by saying that “that, no doubt, was part of the object, but that it was not the whole object, may be inferred from the gift which follows, of the rest and residue of the real and personal estate) which the observation leaves untouched.” The will contained this clause, “It is my will that all my debts, and all the above legacies, be paid and discharged within six months after my decease, and all the next residue of my estate, both real and personal, lands, messuages, and tenements, I give unto Mary Newton, &c.thus in one breath directing payment and showing by what diminution the residue should be ascertained. Amongst the legacies was the bequest of a field called Gillfoot. The bill alleged the insufficiency of the personal estate, and this the demurrer admitted.

3. Where there is a direction that legacies shall be paid by the executor, and a devise to him, the land' so devised is charged with legacies.

Under this head fall some cases that have been urged by the appellees. (Aubrey vs. Middleton, 4 Vin. Ab. 460, Charge D. Pl. 15; 2 Eq. Ca. Ab. 429, Pl. 16; Alcock vs. Sparhawk, 2 Vern. 228, 1 Eq. Ca. Ab. 298, Pl. 4.

To this, as well as the second head, may also be referred Hassell vs. Hassell, and from this may be had confirmation of the decision made in Cole vs. Turner, (4 Russ. 376,) which the appellees have presented as almost identical with the case in hand, and which will be further noticed under the sixth head. (Hennell vs. Whitaker, 3 Russ. 343; Brattewaite vs. Britain, 1 Keen, 206.)

The principle involved in this head is that by the devise to the executor means were afforded to him for payment, and by the direction a condition imposed upon his acceptance ; this does not apply where the devise is to one only of several executors. (Warren vs. David, 2 Myl. & K. 49; Wasse vs. Herlington, 3 Myl. & K. 495.)

And it may be inferred that a power in the executor, to raise money for legacies from lands devised to him in trust, is essential to charge such lands with legacies. (See Dover vs. Gregory, 10 Sim. 393; Powell vs. Robins, 7 Ves. 209.)

4. Where the real and personal estate are blended together, and indication given that from the mass legacies shall be paid. Bench vs. Biles, (4 Madd. R. 187,) where^ after a wife’s enjoyment of real and personal estate as one fund for her life, that fund, diminished by legacies, was to be divided.

5. Where the legatee stands in a position entitled to peculiar favor, as where the legacy has been given in satisfaction of a creditor’s debt, a widow’s dower, the legatees claim to devised land or other meritorious right, such as in England a younger child’s right to a portion. (Webb vs. Webb, 2 Eq. Ca. Ab. 504, Pl. 42; Kightley vs. Kightley, 2 Ves. Jun. 328; Van Winkle vs. Van Houten, 2 Green’s Ch. R. 192, New Jersey.)

6. Where, at the making of the will, the testator must have known that the legacies could not be paid without the aid of the real estate.

This head is plainly illustrated by the case of Nichols vs. Postlethwaite, (2 Dall, [Pa.] 131.) To it, also, may be referred the case of Hassinelever vs. Tucker, (2 Binn. 525,) where it is said that “ the personal estate was nominally adequate to pay debts and legacies, but was really insufficient,” and “ if the legacies were not to be paid out of the land, they were a mockery of benevolence.”

And under this head, in connection with the third, may be found distinctions between the case of Cole vs. Turner, (4 Russ. 376,) before mentioned, and the case now in hand. There, it is said, that “ the sum for which the copyholds had been sold, was in fact the only fund out of which the annuity to the widow and the legacy and annuity to her daughter could be satisfied ” and there is nothing to repel the presumption that such was the condition of the estate when the will was made. There, too, a power of sale, almost discretionary was given to the executors, to whom, after the gift of pecuniary legacies, the residue of everything real and personal was given in trust for four children by a former, marriage.

Under this head, as well as the second, may be found circumstances confirmatory of the effect which was given to rest and residue in Mirehouse vs. Scaife, above mentioned.

The case now in hand cannot be fairly brought under either of these heads. Here there is no direction that legacies shall be paid, besides the incidental references to payment that are contained in instructions concerning the time and mode of payment. By the gift of a pecuniary legacy, and no more, a testator signifies his intent that it shall be paid, that it shall be paid by the executor, and be paid out of the fund which goes to the executor for its payment, the personal estate not specifically bequeathed.

Here there is no devise to the executors. They are, to be sure, the same persons to whom, as trustees for the granddaughter, the residue is given; but from the devise to them no means for payment of legacies could have been derived, without power in them, to sell lands for that purpose If the legal title remained in them, as certainly it would have done if the granddaughter had been a married woman, no power to sell lands was expressly given to them, and none could be implied without plain manifestations of the testatrix’s intent to that effect. Where lands have been plainly charged with debts, although the devise of them to trustees is expressed to be for other purposes, the trustees may sell for payment of debts, tbe power being held to be included in the charge. (Ball vs. Harris, 4 Myl. & Cr. 264; Shaw vs. Barrer, 1 Keen, 559.) But it would be going beyond the strongest case on this subject to imply the charge first and from that to imply the power; and still more extravagant would it be to argue in a circle by inferring the charge from the power, and the power from the charge.

Here there is no blended fund created by the will from which, according to the intent of the testatrix, legacies shall be paid. In fact, blending for the first time could have been contemplated, when the residue as one estate should come to the use of the granddaughter. Before that it could not have taken place, for before that the two kinds of property, according to the law which the testatrix must be supposed to have understood, must necessarily have continued to exist separately — the personal in the bands of the executors as legal owners subject to debts and legacies, the real in the devisees to whom subject sub modo by our law to debts, and subject to the charges and trusts contained in the will, it passed at the death of the testatrix. (Hull vs. Hull, 3 Rich. Eq. 91.) In Cole vs. Turner, above mentioned, the Master of the Bolls declared that “the freehold, copyhold, and leasehold estates are not devised to the trustees, but the rest and residue of those estates, that is, what remains of those estates after some prior purpose;” this consists with the supposition of a power in the executors to sell and pay legacies, so as to fix the residue which they should hold as trustees for the four older children, but is not reconcilable with our case, where clearly all the real estate passed under the residuary clause to the devisees, whether charged or not.

Besides the words “rest and residue of my estate, real and personal,” nothing in the will now before us affords any ground for implying that the testatrix intended to charge the real estate with the legacies; and after much search, I have found no case in which these words occurred, and an implication of charge on the real estate was raised, where I could not discover some confirmatory circumstance. The words are ambiguous; they occur here in a clause, the purpose of which was to give, not to charge; they indicate something less than the whole, but do not direct what deductions shall be made, or in what way deductions shall affect the two kinds of property. (Lupton vs. Lupton, 2 Johns. Ch. 614.) Their meaning may be what shall remain ' after specific dispositions previously made, or after payment of debts and expenses, or after payment of debts, expenses, and legacies previously given; and if the last, this payment may have been intended to be as the law directs — from the general personal estate, and that only, — or to be from a mixed fund, composed of real and personal estate, which are to contribute rateably, or from such mixed fund charged as one entirety, without regard to the sources from which it proceeded. There is nothing which renders any construction preferable to that which interprets the words as if they had been, everything else that Lown, subject to the deductions which the law makes, that is, all the real estate, and the residue of the personal. The testatrix must be presumed to have known the difference between specific and pecuniary dispositions, as well as the fund from which, without some indication of her contrary intention, the legacies would be paid.

The .appellees lay great stress upon rest and' residue as necessarily implying diminution, and diminution effected by deduction of legacies, the only thing in the will that precedes. If so far right, they are not helped, unless they can further establish that the two kinds of property are blended into one mixed fund for payment of legacies. The blending I do not think can be fairly implied. If it could be established, it would, perhaps as matters now are, be comparatively unimportant to the parties, whether the realty was charged as an auxiliary, or rateably, or indiscriminately with the personalty. In settling a principle of construction, it may not, however, be amiss to look to what would have been the result if the heir and residuary devisee had been different persons, and large real estates had, at the cost of the personalty, been acquired after the making of the will. These subsequently acquired real estates would have descended to the heir, and would in equity have been liable to debts, after the personal property bequeathed in the residuary clause, but before the real estate there devised; (Pell vs. Ball, Sp. Eq. 518;) but they would not have been at all liable to the legacies, which would, under the construction contended for by the appellees, have had a right to seek satisfaction from the lands devised, as well as from the residue of the personalty. It must be remembered that throughout this opinion I ignore the before mentioned Act of 1858; (12 Stat. 700;) also, that the Act of 5 Geo. II. c. 7, (2 Stat. 571,) under which an order in the liability of various classes of property to debts has been fixed different from what prevailed in England, does not extend to legacies, ami that a general direction for payment which, as to debts, is here superfluous and unimportant, is still of much avail as to legacies. (Warley vs. Warley, Bail. Eq. 405-410; 2 Jarm. on Wills, 546; Pell vs Ball, Sp. Eq. 519; Henry vs. Graham, 9 Rich. Eq. 100; Brown vs. James, 3 Strob. Eq. 24.)

It should not be deemed strange that a difference is recognized between real and personal property in respect to their liability to the payment of legacies, when both are given by the same clause in the same residue. From early times, and in many respects, the law has made distinctions between the two kinds of property under tne same words embracing both, as concerning limitations, ever since the case of Forth vs. Chapman, (1 P. Wm. 665,) concerning the rights of heir and residuary legatee in case of lapse, Cheves vs. Haskell, (10 Rich. Eq. 534;) concerning the order in which they shall meet debts. (Farmer vs. Spell, 11 Rich. Eq 541; Loyd vs. Loyd, 10 Rich. Eq. 469.) The distinction between the heir and the devisee and the executor, runs throughout the law, and has been adverted to several times above. It would be observable in legal titles and modes of proceedings, even if both were expressly blended into a common mass for payment of legacies. That the testatrix herself looked to the distinction is shown by the words of the residuary clause respecting her future acquisitions, but we are bound to presume that she knew that these words would apply only to her personal estate, whilst the devise would be confined to the realty, specific and fixed as it was at the making of the will.

In the conclusion, unfavorable to the pecuniary legatees in the first ground of appeal, .which has been attained from the words of the will, this Court is strengthened by what have been called the extrinsic circumstances. Eesort to these has been frequently condemned, and is particularly deprecated by Sir John Leach, V. C., in the case of Parker vs. Fearnley, (2 Sim. & Stu. 592.) This case has been criticised because it departed from the course of decision, (2 Jarm. on Wills, 526,) which had sustained the charge of real estate devised, where the devise followed a general direction that legacies should be paid; but in the view taken by the Yice Chancellor, the express charge upon the residue of the personalty rebutted the implication of a charge upon the realty, as had been held in the case of Davis vs. Gardener, (2 P. Wm. 187.) In this view the condition of the estate was unimportant, and therefore, perhaps, it was the more readily treated as unfit for consideration.

Every Court in the construction of a will is required to place itself in the situation of the testator, (Wigam on Wills, PI. 76-80,) with knowledge of the circumstances that surrounded him. The extrinsic testimony, necessarily admitted to give this knowledge, is not allowed to show the testator’s intention as an independent fact distinguished from the contents of the written instrument, but may show the meaning of what is said in that instrument. Where, upon the face of the will, there is an ambiguity, which the light of surrounding circumstances may explain without varying the instrument, the exclusion of that light would be the rejection of the means of doing justice with safety. The opinion given by Lord Tharlow, upon the rehearing in the case of Tonnereau vs. Pointz, which was cited upon another point, is a leading authority on this subject; and in our own case of Rosborough vs. Hemphill, (5 Rich. Eq. 105,) Chancellor Johnston has clearly laid down the principles which authorize and limit the admission of explanatory circumstances. (See Pell vs. Ball, Sp. Eq. 66-80.)

The state of the family and condition of the property may be looked to. Under the state of the family may come the ages and other particulars respecting children and other relations, and from that may be drawn any inferences, in regard to the meaning of doubtful expressions, which arise without dangerous speculation and conjecture, but it would be inadmissible to undertake to graduate the affections of a testator toward the several members of his family, for in accommodating his intent to our notions of duty and probable inclination, we would forget that the law imposes no checks upon whim and perverted feelings, but inquires what is the will, not what it should have been. The condition of the property may, however, be more safely considered. Everybody instantly admits that where pecuniary legacies have been given, and the whole estate was real and has been devised, there must have been an intent to charge the devises with the legacies; and in many of the cases respecting this question of charging the real estate, the insufficiency of the personal estate appears to have entered into the inquiry, and to have been influential, however improper for consideration it may have been thought. JS con-verso, the ample sufficiency of the personalty is a strong circumstance to exclude the implication from doubtful words of an intent to charge the realty. In the case before us, it is fair to conclude that the testatrix did not mean to charge her real estate with the legacies, because her words, if doubtful, should not receive such construction as to indicate her intention to guard against an insufficiency of her personal estate, not even remotely probable when she made her will. Much more probable than this it is, that looking to the very tender ages of the two principal objects of her bounty, the comparative smallness of the legacies given to other persons, the long time before large payments would probably be required, and the powers usually exercised by executors over planting estates, she expected that debts and legacies would be paid from the annual profits of her plantations, and the estate unincumbered pass to her granddaughter when she came of age or married.

Upon the questions which have been discussed concerning devastavit and abatement, this Court has not been sufficiently informed of the facts, and has formed no opinion.

The Chancellor’s decree, so far as it holds the pecuniary legacies and annuities to be charged upon the land devised under the residuary clause of Mrs. Laurens’ will, is reversed, upon other points it is set aside, and further inquiry is directed.

The order by which matters were referred to the Master is renewed, with the instructions contained in this opinion; and with leave for him to report special matter.

Decree reversed in part, other part set aside, and further inquiry directed.

Dunkin, C. J., and Glover, J., concurred. 
      
      
         Under the twenty-fourth section of the English Wills Act, (1 Viet. c. 26,) which makes the will speak as if it had been made immediately before the death of the testator, and is, therefore, in effect the same as our Act of 1858, residuary devises of land are held to be specific. Hensman vs. Fryer, Law Rep. 3 Ch. Ap. 420; Gibbins vs. Eyden, Law Rep. 7 Eq. Cas. 374.
     