
    -STIRES v. -STIRES AND OTHERS.
    1. In October, 1837, D. S., being then seized of a farm on which he lived, and of no other real estate, made his will,' by which he directed his executor to pay the debts out of his personal estate, and in defect thereof, to sell so much of the real estate as to pay the debts ; and from and after the payment thereof, and subject thereto, then that the residue of the personal estate be divided between his widow and his nephew D. D.; and the rents and profits of his real estate be distributed to them during their lives ; and that, on their deaths, respectively, their respective shares of such rents and profits go to H. C. during his life; and that, on his death, all the said real estate should go to the children of the said H. C.
    3. In April, 1839, D. 8. bought another farm, and paid 52000 and odd of the purchase money, and for the balance gave a mortgage on' the farm so bought; and afterwards, to discharge that mortgage, borrowed moneys on his bonds, some of which existed as debts against his estate after his death.
    3. D. S. died in October, 1841, without having altered or republished his will.
    4. On the death of D. S., the farm purchased by him after making his will, descended to a brother and nephews and nieces, his heirs-at-law. Held, that the descended land was chargeable with the debts before the land devised.
    On the 2d of October, 1837, Daniel Stires, being seized of a farm on which he lived, and of no other real estate, made his will, by which he directed the executor thereof to pay all lawful claims against his estate out of his personal effects; and, in defect thereof, to sell so much of the real estate as to fully pay and satisfy all just claims and demands j and from and after the payment thereof, and subject thereto, then that all the rest and residue of the personal estate be divided between his widow and his nephew Daniel Davis j and that the rents and profits of all his real estate be distributed to his widow and his said nephew, during their lives; and that, on their deaths, respectively, their respective shares of such rents and profits go to Henry Cole during his life j and that, on his death, all the said real estate should go to the legitimate issue of the said Henry Cole. The will then declared the gifts and bequests therein made to his wife to be in lieu of dower, and only on condition that she accepts them as such.
    
      After the making of the will, on the 9th of April, 1839, Daniel Stires bought another farm, called the Hock farm, at the price of §6800; of which sum ho paid, in cash, §2267, and for the balance of which he gave a mortgage on the said Hock farm ; and to discharge that mortgage, he afterwards borrowed moneys on his bonds, some of which are still outstanding against his estate.
    He died on the 8th of October, 1841, without having altered or republished his will, leaving a brother and nephews and nieces his heirs-at-law.
    A bill was filed by the devisees against the heirs-at-law and the executor, stating the foregoing facts, and praying that the Hock farm might be sold to pay the debts.
    The cause was heard on a demurrer to the bill.
    
      H. W. Grean and G. D. Wall, in support of the demurrer.
    They cited Cowp. 90, 305; Salk. 238; 1 P. Wms. 575; 2 Bl. Com. 378; 6 Cruise’s Dig. 37; 9 John. Rep. 313; 3 Johns. Ch. Rep. 310; 5 Ibid. 441; 4 Kent’s Com. (2d edit.) 510, 512, 421; 1 Story’s Eq., § 577; 1 Bro. Chan. Rep. 526.
    P. I. Clark and P. D. Vroom, contra.
    
    They cited 1 Bro. Ch. Rep. 524; 2 Atk. 424, 431; 1 Mad. Ch. 483, 492; 3 Atk. 556; 1 Dickens 382; 1 Bro. Ch. 261; 2 Ibid. 524, 257; 3 Vesey, 114; 6 Ibid. 199; 8 Ibid. 106, 116, 122, 124, 295; 4 Dess. 323; 3 Mad. Rep. 453; 3 Johns. Ch. Rep. 312.
   The Ch angelí, ok.

The question arising upon the facts in this case is, whether the descended lauds or the devised lands shall pay the debts.

The order in which assets are applicable in payment of debts, as stated by Ld. Thurlow, is — 1st. The personal estate ; 2d. Ordinarily speaking, estates devised for the payment f debts; 3d. Estates descended; 4th. Estates specifically devised, though they are charged generally with the payment of debts. Sir R. P. Arden, Master of the Rolls, (afterwards Ld. Alvanley,) states the four classes thus: 1st. The general personal estate, unless exempted expressly, or by plain implication ; 2d. Any estate particularly devised for the purpose and only for the purpose of paying debts; 3d. Estates descended j 4th. Estates specifically devised.

The will in this case is nothing more than a general charge on all the real estate the testator had at the time of making his will, for the payment of his debts, or of such portion thereof as his personal estate should be insufficient to pay.

The testator having acquired lands subsequent to the making of the will, which on his death descended to his heirs-at-law, the question is, whether such a general charge on all the estate he had at the time of making the will, is to have the effect of charging the lands devised subject to such general charge, in exemption of the after-acquired and descended lands.

At the making of the will the testator could have had no intention as between the devised estate and the descended estate, for the reason that at that time he owned none but the devised estate. The will, then, is not a selection or designation of certain lands to pay debts, in exoneration of other lands.

In Galton v. Hancock, 2 Atk. 424, 430, decided by Ld, Hardwicke, first in 1742, and again in 1743, the defendant’s husband being seized in fee of an estate, morgaged it in 1724, to secure the payment of a bond he had previously given. In 1728, he made his will, and devised to his wife this estate in fee, and also a lifehold estate. The will sets out with a desire that all his debts may be paid in the first place; and concludes with a general residuary devise to his wife, whom he makes executrix. He afterward bought the reversion in fee of the lifehold estate, and died without altering his will.' It was held to be clear that the purchase of the reversion after the making of the will was a revocation of the will, pro tanto; and consequently this latter estate descended upon the heir. The question was, whether the descended estate or the devised estate should pay the debt secured by the mortgage. The Ld. Chancellor first decided that the devisee should take the devised estate cum onere; but afterwards, on a re-hearing, he decided that the descended lands should pay the debt.

This case was decided in favor of the devisee, notwithstanding the testator had left a mortgage on the estate devised. The Chancellor said that, in equity, the land is only regarded as security for the money; and that the election of the holder of the bond and mortage, as to the course he will take to get his money, will not determine which fund ought properly to be charged, nor vary the right as to those funds. In the case before us, there was no mortgage: the debts are generally bond debts, or simple contract debts only.

The case of Powis v. Corbet, in 1747, also decided by Ld. Hardwicke, was a case in which the testator had created a particular trust out of particular land, for the payment of debts, and subject to that trust devised it over. It was held that the devisee could take no benefit but of the remainder after the whole burden upon it was discharged. In this ease Ld. Hardwicke expressly recognized the decision in Gatton v. Hancock.

In 1780, the case of Davis v. Toppe, 2 Pro. Ch. Rep. 524, came before Ld. Thurlow. Toppe, seized of real estate subject to a mortgage, made his will, and as to his worldly estate, real or personal, after payment of his debts, disposed thereof as follows : to his sister, Sarah Lloyd, an annuity for life, and several pecuniary legacies j and charged all his real and personal estate with the payment of his debts and legacies; and subject thereto, devised all his real estate to his nephew for life, with remainders over, and his personal estate to his said nephew. After making the will he purchased an estate, and died without issue, leaving the said Sarah and her sister his heirs-at-law, on whom the after-purchased estate descended. In this case, also, the lands devised were subject to a mortgage at the time of the devise, and remained so to the death of the testator. The case of Gallon v. Hancock was relied upon on the part of the devisees; and the case of Powis v. Corbet was cited on the other side. In giving judgment, Ld. Thurlow said he heard the devisees principally to obtain a distinction between Gatton v. Hancock and Powis v. Corbet. He decides the case before him on the following reasoning. After stating that in Powis v. Corbet two estates were in the possession of the testator when he made his will, and that one was devised, charged with a term for the payment of debts, he says, that the effect of the full principle of the decree in that case, and in the case of Galton v. Hancock, is simply this: Where a testator gives the whole of his estate at the time of the devise, subject to a general charge, he means to give the devisee all that can be saved of his affairs after payment of his debts. If he afterwards becomes possessed of another estate, thus much is clear; by charging his estate, (that is, all he had at the time,) with the payment of his debts, it could not be in his contemplation to charge the estate he gave in favor of an estate which he had not. In such case, the estate descended, (which the' testator had not at the time,) could not have been the object of an intention to exempt: whereas, if a testator has two estates, and charges one, the inference is that he means to exonerate the other.” “The principle (he says) which seems to distinguish the case of Galton v. Hancock, is this : when a general charge is made, applicable to the whole estate of the testator at the time, no intention appears that the estate is so charged with a view to exonerate future property ; but where a testator charges part of his estate, leaving other part (which he has at the time) to descend, his inclination to burthen a part in exoneration of the rest is manifest.” It seems to me that this reasoning is entirely satisfactory.

The case of Milnes v. Slater, 8 Vesey, 295, decided by Ld. Eldon, is not opposed to this view. The question there was, whether the will created only a general charge, or a particular charge on a particular fund. The will declared that if, at the decease of the testator, there should be any mortgages or other encumbrances affecting his estate in Bantry, Austerfield and Timberland, or any of them, the same should not be discharged out of his personal estate, but should remain charged on his said estates respectively, until discharged by the several tenants for life, to whom the said estates were respectively limited. The testator purchased other estates after making his will, in Bantry, Austerfield and other places, which descended to his heirs-at-law. The question was, whether the descended estates should be applied to pay the mortgages on the estates at Bantry, Austerfield and Timberland. Ld. Eldon decided that “ a real fund had been created ” in that case, for the payment of the mortgage debts. He said that a real fund created ” was the construction he put on the term selected,” used by Ld. Alvanley, in Manning v. Spicer. He said he perfectly agreed that if the testator had done no more than generally subjecting the mortgaged estates, merely leaving them subject as the law would if he had said nothing, that would not be enough to protect the descended estates. He declared his opinion to be, that the testator had created a particular fund by the words of the above-stated clause, and that thereby the descended estates were exonerated.

I will not go further into the cases. They have all been reviewed by Chancellor Kent, in Livingston v. Newkirk, 3 Johns. Ch. Rep. 312; a case presenting the very question raised here, and deciding that the descended lands were first liable. It will be so decreed in this case.

Decree accordingly.  