
    Charles Warley v. Paul J. Warley, and Others.
    The testator, after certain specific, and pecuniary legacies, devised his whole estate, real and personal, “after the payment of all his debts and legaciesbut the will was not duly executed to pass the real estate, which descended to the heir at law: held, that the descended real estate was liable to debts, in exoneration of the specific legacies, but that the residuary personal estate was liable before the real estate so descended.
    Descended real estate is applicable to the payment of debts before personal estate specifically bequeathed ; and even a bequest of the testator’s whole personal estate, or of the residue, after specific legacies out of it, must, for this purpose, be regarded as specific in this State. But if the bequest be of the residue, merely, this must mean afterpayment of the debts ; and still more so, if the testator bequeath his personal estate, expressly “ after payment of debts:” and in both cases, the personal estate, so bequeathed, will be liable to the payment of debts, before real estate descended.
    The st. 5 Geo. 2, c. 7, which has rendered lands liable to the payment of . debts of every description, and our own statute of distributions, by which the character of the heir at law, as it is understood in England, has been entirely altered, havo, to a considerable extent, rendered the English rules for the administration of assets inapplicable in this State. The personal estate may still be regarded as the fund primarily applicable to the payment of debts; but lands devised for, or charged with, the payment of debts, will be liable in exoneration of the personal estate : and descended real estate will be liable before personal estate which has been bequeathed in terms, that do not either expressly, or, impliedly, shew it to have been the intention of the testator, that it should be applicable to his debts, even in cases, where the bequest would not, in England, be regarded as specific; as where the testator gives his whole personal estate, or the residue after specific legacies out of it. The following suggested, as the order in which assets are to be administered in this State. First, real, or personal estate, devised for the payment of debts, or, in any manner, directed to be so applied. Second, personal estate not specifically bequeathed; but a bequest of the testator’s whole personal estate, or of the residue, after payment of specific legacies out of'it, to be regarded as specific. Third, descended real estate. Fourth, personal estate specifically bequeathed. And lastly, real estate devised.
    If a will, devising both real and personal estate, be not duly executed to pass real estate, it must be read as if-the real estate were not mentioned in it; and no condition, or equity, can be implied, against the heir, from the ineffectual devise of the real estate.
    
    The modern rule, as between the tenant for life and the remainderman, in relation to the debts of the estate, is, that the tenant for life must keep down the interest: and, if the debts are to be paid, so much of the estate must be sold, as is necessary to pay the debts ; or if it be not divisible, the whole must be sold, and the surplus, afterpayment of the debts, be invested.
    The executor is not liable to the legatee for the loss on sales, of the property bequeathed, made by the sheriff, at prices below its value, where the sale was not made by the will, or caprice, of the executor, but at the instance of creditors, under executions for debts of the testator, and was fairly conducted. And if he were liable, it is a question of damages, and the remedy is at law.
    Where a testator, or intestate, dies after the first day of March, in any year, the crops growing on his lands are assets for the payment of debts, in ease of the personal estate bequeathed, although the latter is liable to the debts before the land itself, vide act of 1789, sec. 23, P. L. 494.
    This was a bill by a legatee to have the descended real estate of the testator applied to the payment of his debts, in exoneration of personal estate bequeathed to the complainant. The testator, John M. Caldwell, of Qrangeburgh, who died in June, 1824, by a will dated on the 18th November, 1823, after legacies of $1,000, each, to Richard Footman, Edward Footman, and William C. Footman, and a bequest of a slave to the complainant, Charles Warley, left the whole of his estate, to his brother, Paul J. Warley, the defendant, whom he appointed executor : and by a codicil, dated 6th May, 1824, he bequeathed five other slaves to the complainant, Charles Warley ; and then added- this clause to his will: “ In the event of my brother, Paul J. Warley’s dying, I do hereby appoint the said Charles Warley my executor, and immediately then I do give, devise, and bequeath, unto the said Charles Warley, all and singular, my real, and personal estate, after the payment of all my debts, and legacies; to have and to hold the same unto him, the said Charles Warley, after the death of the said Paul J. Warley, and unto his heirs, executors, and administrators, forever.” Neither the will, nor codicil, were attested by any witnesses, and they were, therefore, ineffectual to pass the real estate which descended to the defendant, Paul J. Warley, who was the heir at law of the testator ; but they were, after much contest, admitted to probate, as a valid testament of the personal estate: and the defendant, Paul J. Warley, qualified as executor.
    The testator left a very considerable real estate, and the personal estate was appraised at $34,923.26. He was also very largely in. debted, and after bis death, judgments to a large amount were recovered by his creditors against the executor. Executions were sued out upon these judgments, and thirty-four slaves were levied on, and sold by the sheriff, for cash, at a very low price, and, as it •was alleged, much below their value. Other slaves were also levied on, and the sheriff was proceeding to sell them, when this bill was filed to injoin the sale, and to compel the executor to satisfy the judgments out of the real estate, and restore the personal estate sold out of the same fund.
    The injunction was granted ; and afterwards, the cause came on to be heard at Charleston, in January, 1830, before De Satjssure, Chancellor, from whose decree the questions made at the hearing will be fully understood.
    De Saussure, Ch. It is conceded, that this is a case of intestacy as to the real estates, which have descended to the defendant, Paul J. Warley, the heir at law of the testator; but there is an effectual bequest of the whole personal estate, exclusive of a specific bequest of slaves, and some pecuniary legacies, to Paul J. Warley, for life, and on his death to the complainant, Charles Warley, absolutely. There are, however, large debts, and these must be paid. The whole estate is liable to the creditors ; and they have, therefore, no interest in the question, what funds are first applicable to ^le Payment °f debts. But this is a question of great importance to the parties litigating ; for one of them is in titled, as has been stated, to the real estate by descent, and the other to the personal estate by the testament of the testator.
    It is the-English mle, that the personal estate is first liable to the payment of debts; and indeed simple contract debts could not attach on the real estate at all. We have adopted the English rule to a considerable extent; but the approximation of real and personal estate, in descent, and in other particulars, has shaken the rule a good deal : and even in England, where the desire to protect the real estate, as far as possible, for the benefit of the heir, is very strong, it was not denied to the owner, to exonerate the personal estate, and, by his will, to charge his real estate with his debts. When this is done, clearly and distinctly, there is no doubt, that the will of the testator becomes the law of the case, and binds the parties interested. In the singular combinations of circumstances, which occur in human transactions, there arise middle cases, in which great difficulties are presented. This is one of those cases, in which the following questions arise: First, whether the slaves specifically bequeathed- to Charles W arley are not exonerated from contributing to pay the debts of the testator, whilst other assets remain. Second, whether the personal estate effectually bequeathed to Paul J. Warley for life, and at his death, to Charles Warley, absolutely, is exonerated from the payment of debts, until the real estate descended has been applied to that purpose, and exhausted. Third, supposing the real estate descended not to be primarily liable, or, if só liable, actually exhausted in the payment of debts, what proportion of the debts, or the unpaid residue of them, should be borne, respectively, by the tenant for life of the personalty, and the remainderman. Fourth, whether losses on sales, by the sheriff, of the personal estate, should be made good to the remainderman by the executor. Fifth, what is the character, and liability, of the crop of the year 1824, in which the testator died;
    On the first question there does not seem to be much difficulty. It is one of the oldest, and best established rules of the Court, as to the application of the assets of a deceased person, that the heir shall not compel a specific legatee to part with his legacy, in ease of the real estate descended ; and although a creditor may subject the specific legacy to his debt, yet the legatee shall, in equity, stand in the place of the creditor, whether by bond, or mortgage, and take as much out of the real assets, as such creditor by bond, or mortgage, has taken from the specific legacy. Such is the language of Lord Chancellor Macclesfield, in the case of Tipping v. Tipping, 1 P. Wms. 729. It would be different, if the real estate should be specifically devised. There, a legatee of personalty, who is defeated of payment of his pecuniary legacy, by the personal assets being exhausted to pay the debts, shall not be allowed to stand in the place of bond creditors; and to charge the land devised ; for every devise of land is specific : but it< would be otherwise, if the land had descended to the heir. See Clifton v. Burt, 1 P. Wms. 678. In the modern edition of P. Wms., this case and doctrine are well illustrated by the notes, in which a number of important cases are collected, explained, and applied. There is a distinction made in England between bond and simple contract debts, on the ground, that bond debts bind the heir, and charge the land, and simple contract debts do not. In this country, lands may be subjected to the payment of debts of every description. In reality, however, in the case we are considering, the principal debts are bond debts.
    The second question is next to be considered. The counsel for the defendant relied, in his argument, on the case of Harmood v. Oglander, 8 Ves. 106, in which it was decided, according to the argument of the counsel for the defendant in the present case, that the real estate, which did not pass under the will, and therefore descended, should not be first taken as a fund for the payment of debts. That case is obscurely reported on this point, which was little argued ; the main question being as to a revocation. Nor does it appear, whether the question, as to the fee-farm rents being taken as a fund to pay debts, had reference to specific legacies of personal estate, or not; and I think we are justified in concluding that it had not. The Lord Chancellor, in that case, at page 124, expressly recognizes the doctrine of Lord Thurlow, which has been the law ever since, “ that in the administration of assets, ordinarily, the first fund applicable is the personal estate, not specifically bequeathed: then land devised for the payment of debts ; not merely charged, but devised, or ordered to be sold : then descended estates: then lands charged with the payment of debts.” It is obvious from this, that personal property, specifically bequeathed, is not liable to be brought in, whilst any of the other funds remain.
    It was urged in argument, that the bequest of the whole estate, effectual only as to the personal estate, was not such a specific legacy, as would subject the descended real estate to debts, prior to the application of the personal estate so bequeathed. By the English law every devise of real estate is specific; but as to personal estate, the leaning of the Court is always against considering a bequest specific: and the intent of the testator to make it specific, must be clearly expressed, or distinctly implied. The bequest, in the case we are considering, is, on the death of Paul J. Warley, of all the testator’s real and personal estate, after payment of his debts and legacies, to Charles Warley, his heirs, executors, and administrators, forever. I have looked carefully intojjthe decided cases, and there is a good deal of difficulty and contrariety among thern. There is a case, in which real and personal estate, devised together, as in the one we are now considering, was decided to be specific. It is that of Nisbett v. Murray, 5 Ves. 149. The testator, after some specific bequests, devised and bequeathed all the rest and residue of his estate in Jamaica, which was real and personal, to trustees, with power to sell the same, and to pay over the proceeds to certain legatees ; and made the trustees his executors. There was other property of the testator in England and Scotland, which did not pass by his will; and it was decided, that the devise and bequest in Jamaica was specific, and not liable to the debts of the testator, until other funds, consisting of money, and leasehold, were exhausted. The case of Sayer v, Sayer, Pr. Ch. 392, was relied on ; and also that of Howse v. Chapman, 4 Ves. 543. In the last case, the testator devised, and bequeathed certain legacies. Some of them failed as being contrary to a statute. He sold, in his life time, a part of his real estate, for £1,000, which added that amount to the personal estate, and it went to the next of kin. The debts were directed to be paid out of that fund, in order to protect the legacies. In Edged v. Haywood, 3 Atk. 358, Lord Hardwicke said, where goods, lands, and chattels, are given altogether as one fund, and the whole are subject to the exception of what was given before, this amounts to the. same, as if he had given them subject to what was given before : and he, therefore, held a legacy, given before, to be a charge on the lands. In Herne v. Meyrick, 1 P. Wms. 201, the testator owed debts by bond, and devised his lands in tail to his heir; and he gave several legacies, and made his heir his executor. The heir paid the debts out of the personal estate, whereby there was a deficiency to pay the legacies ; and it was held, that the legatees were without remedy, the lands being specifically devised : sed secus, if the land had descended to ihe heir in fee. So in Clifton v. Burt, 1 P. Wms. 678, and Forrester v. Lord Leigh, Ambl. 171. Mr. Bridgman, in his Analytical Digest, 2 vol. p. 162, Title Legacy and Legatee, 4, sec. 211, after stating a number of the embarrassing cases, says, “ From hence it seems, that the Court, where specialty creditors exhaust the personal fund, will marshal assets in favor of legatees, as against the heir in respect of assets descending, and as against a residuary legatee, but not against a specific devisee.” So, where a testator, by his will, ordered his trustees to possess themselves of all his estate and substance, and to pay his debts ; this was held to be a charge of the debts on the real estate : and the assets were ordered to be marshalled for the legatees, to let them in so far as the personal estate had been paid towards the debts. Foster v. Cook, 3 Bro. C. C.' 347. And see Bradford v. Foley, 3 Bro. C. C. 351, note.
    This is a complete subject, and the numerous cases are not easily reconcileable ; but upon the whole, I think I am warranted in saying, that the legatee is intitled to be reimbursed, out of the real estate descended to the heir, so much as has been, or may be, paid to creditors, out of the personal estate bequeathed : and this more especially, when the real estate descended to the heir, contrary to the intention of the testator; who devised it to the person, to whom he bequeathed his personal estate, and the devise failed, merely because he neglected the formality prescribed by the statute, of having three witnesses to his will. To this it may be added, that the constant solicitude to protect the real estate, for the heir at law, which runs through the English cases, does not exist here, but is contrary to the leading principles of our system.. Upon the whole, I am of opinion, and so decide, that the debts of the testator must be paid out of the real estate descended, before resort can be had to the personal estate bequeathed, as hasbeen done in this case.
    The third question is, supposing that the real estate descended is not primarily liable, or, if it is so liable, should be exhausted by the payment of debts, what proportion of the debts, or of the unpaid residue of them, should be borne, respectively, by the tenant for life of the personalty, and the remainderman. The proportion, which has been settled by the decided cases, is, that where the debts are not pressing, and do not require a sale, the tenant for life must keep down the interest; but if a sale be necessary, the tenant for life must pay one third of the debt, and the remainderman two thirds.
    The fourth question is, whether losses on the sales, by the sheriff, of the personal property, should be made good to the remainderman by the executor. It does not appear to me, that the executor is ^oun(^ t0 mabe good any supposed losses which may have occurred on the sales of the personal estate, made by the sheriff. The sales were made, not by the will, or caprice, of the executor, but by creditors pressing their legal rights, and enforcing sales under their judgments and executions ; and the sales appear to have been fairly conducted. The claims of creditors were paramount, and the personal estate was liable to them ; and they were not bound to wait for the decision of a question of refined equity, between the legatee and heir. Besides, this is really a question of damages, and I do not perceive clearly, that this Court could give relief.
    Act of 1789, mc.83, p.l.
    The fifth question is as to the character and liability of the crop of 1824, the year in which the testator died. It appears to me, that the statute is peremptory. The crop is expressly made assets for ^ payment 0f a]j debts, and must be so applied at all events. No question can arise between heirs and devisees, unless the crop is more than sufficient to pay the debts. In such a case questions might arise as to the surplus ; but there is no surplus alleged here.
    It is therefore ordered, and decreed, that the specific legacies of slaves be protected until all other funds of the estate shall have been exhaustéd, and that the debts of the estate be paid out of the real estate descended to the defendant, Paul J. Warley ; for which purpose a sale of the lands shall be made, at such time, and on such terms, as the counsel of the parties may propose, and the Court order: and that after payment of the debts still remaining unpaid, the surplus, arising from the sale of the lands, be applied to reimburse the legatee, Charles Warley, the amount of debts paid by sales of the personal estate bequeathed to him, and also to satisfy the pecuniary Jegacices under the will. Should the lands not be sufficient to pay the debts, then the tenant for life of the personal estate shall pay one third of the residue of the debts, and the remainderman two thirds of such residue. The crop of 1824, in which year the testator died, is to be primarily applied. The costs to be paid out of the estate.
    The defendant appealed from this decree, and the appeal was argued at the present term, by King for the appellant, and Petigru, contra.
    
    
      
       The testator in the principal case died, as it will be seen, prior to the act of December, 1824, which requires three witnesses to a will of personal, as well as to a will of real estate, vide acts of 1824, p. 24.
    
   Harper, J.,

delivered the opinion of the Court.

The principal question involved in this case, is, whether the real estate, descended to the defendant, Paul J. Warley, is liable for the payment of debts, in preference to the general personal estate, given to Paul J. Warley for life, and after his death to Charles Warley. There is no doubt, but that it is liable, in preference to the slaves specifically bequeathed. Under the English law, I should incline to differ from the conclusion of the Chancellor with respect to its liability ; but the case may stand on a different footing in this State. Not that I think we are at liberty to depart from an established rule of law, because we may think it inconvenient, or unsuitable to our policy. But when our legislation innovates on the English law, that legislation must be pursued to its necessary consequences. The law in our State, on the subject of the marshalling and admin, istration of assets, is very unsettled, and I shall go into it somewhat more fully, than would be necessary for the determination of the present case.

1 Brev. Rep. 389.

The acts, which appear to have effected an alteration in the En. glish law, are, first, the statute 5 Geo. 2, c. 7, P. L. 250, by which lands are made liable to the payment of all debts, to the same extent, to which they were before liable for the payment of specialty debts : and second, our own statute of distributions, by which the character of the heir at law, as understood in England, has been entirely altered ; and which has taken away the ground of many of the English decisions, by which the apparent intention of testators has been violated in favor of the heir at law. The general rule in England seems to be perfectly well settled, as laid down by Lord Thurlow, in Donne v. Lewis, 2 Bro. C. C. 263, and repeated by Lord Elden in Harmood v. Oglander, 8 Ves. 124, “ that in the administration of assets, ordinarily, the first fund applicable is the personal estate not specifically bequeathed: then land devised for the payment of debts ; not merely charged, but devised, or ordered to be sold : then descended estates : then lands charged with the payment of debts.” And he might have gone on, then personalty specifically bequeathed ; and lastly, land devised, so far as respects specialty debts. We are to inquire, whether it is possible to retain this order, consistently with our statutes.

Under the st. 5 Geo. 2, c. 7, (supra,) it has been held, and perhaps properly, that the distinction between land and personal property, in respect to their liability for the payment of debts, has not been entirely abolished. The statute provides, that lands shall be liable to all debts, “ in like manner, as real estates are, by the law of England, liable to the satisfaction of debts due by bond, or other specialty.” P. L. 250. But by the law of England, the personal estate was fue primary fund for the payment of specialty, as well as simple contract, debts. This seems to be somewhat in conflict with the decision in D’Urphy v. Nelson, 4 M’C. 129, note, that lands are liable to be taken in execution, in the first instance, un^er a iU(%raenf against the executor. But in the case of Dunlap v. Dunlap, 4 Desaus. 329, it was held, that the personal estate was the primary fund for the payment of debts : and our practice ^as been, in cases of intestacy, to apply the personal estate in the first instance. Beyond this, we have settled nothing. It is perhaps beneficial to infant heirs, and legatees, that the more stable and permanent property should be reserved to the last.

The English rule'is, that the personal estate, not specifically bequeathed, shall be first applied ; and then, lands devised for the payment of debts. Can we adopt this consistently with our own laws 1 When a man devises land for the payment of his debts, his obvious meaning is, that that land, and, if it is sufficient, nothing else, shall be so applied. Why shall not his intention have effect ? The English cases admit, that a testator may, if he expresses himself with sufficient clearness, exempt his personal estate, as among his legatees, and representatives, from the payment of his debts, and throw the burden on the real. The rule, laid down by Lord Thurlow in Ancaster v. Mayer, 1 Bro. C. C. 462, and recognized in many cases, is, that there must be either express words, or declaration plain, to exempt the personal estate. The mere devise of the land is not sufficient with the English Courts ; because, in general, land is not liable to debts, unless the testator makes it so. In favor, therefore, of the heir, who, according to their policy, is not to be disinherited but by express words, they make this somewhat strained construction; that by devising land for the payment of debts, the testator means, that his debts shall not go unpaid, but that the land shall come in aid of the personal estate. But is it possible to make such a construction here, where, without any act of the testator, the land is liable to all debts, as well as the personal estate ? This would be to make his words absolutely unmeaning, and to strike out that part of his will. When a testator in this State devises land for the payment of debts, it is a declaration, as plain as words can make it, that the personal estate shall not pay those debts, if the land be sufficient. Take for example the case of Adams v. Meyrick, 1 Eq. Ca. Abr. 271, which has been denied in subsequent cases. A testator devised land to trustees, “ in trust that they do, and shall, by mortgage, or sale, of the said premises, or any part thereof, pay off and satisfy his debts,” with legacies and personal expenses. He devises all his goods, chattels, and household stuff in such a house, to another ; and then goes on in these words: “ all the rest and residue of my personal estate, I give and devise to my wife, whom I make sole executrix.” What other conceivable meaning could we attach to this, in this country, but that the land should pay the debts, and the wife take the personal estate, exempted from them ? So in Samwell v. Wake, 1 Bro. C. C. 144, where the devise was, “ I will, and desire, that my debts and legacies shall be paid, and for that purpose I charge all my estates with the same; and, that it may be more easily done, that Sir William Wake, and Sir John Peach Hungerford, (the defendants,) and their heirs, shall sell the estate, and apply the money to the payment of debts and legacies.” But it is useless to multi, ply references to the English cases, as I have held them inapplica. ble to us.

The English rule goes on, after estates devised for payment of debts, “ then descended estates; then lands charged with the payment of debts.” That is to say, with respect to bond debts, to which alone descended estates are liable, they shall be liable in preference to lands devised, although charged with the payment of debts.. What is the meaning of the word charged ? There is no doubt about its meaning in England : it is to make land liable to debts, to which they would not be liable but for the act of the testator. Is it possible to attribute that meaning to it here, where lands are liable to all debts, by law, independently of any act of the testator 1 But we are bound to give meaning, and effect, to every part of a will, if we can. If a testator should think proper to use that word here, there would be nothing ambiguous in it. Every one would at once understand it to import, that the burden of the debts should be thrown on the real estate, in exemption of the personalty. It would be a direction to pay the debts out of that estate : and equivalent to a devise for the payment of debts. If a testator should devise land, charged with the payment of debts, the only meaning, we could possibly give to it, would be, that the debts should be paid out of the land, and if any thing remained, that should go to the devisee.

There are some cases, in which a devise of the testator’s whole personal estate, or of the residue of his personal estate, has been considered specific ; as where the intention has been clearly enough expressed, that the devise should take it exempted from the pay. ment of debts. Such was the case of Adams v. Meyrick, 1 Eq. Ca. Abr. 271, before referred to, which has been since denied. Such also was the case of Wainwright v. Bendlowes, 2 Vern. 718, in which the testator devised land to be sold for the payment of his debts, and the residue, after payment of his debts among three persons. He willed his household goods to go with his house, an<^ ^10 res^ue of his personal estate to his sister, whom he made his executrix. Lord Hardwicke, in Inchiquin v. French, Ambl. 38, censures the reasoning of the Chancellor in this case, but 1 do not understand the case itself to be questioned in any of the subsequent cases. In Walker v. Jackson, 2 Atk. 624, the testator devised land to be sold for the payment of debts, legacies, and funeral expences, and appointed two executrixes; and by a codicil he devised to his executrixes all his personal estate not before devised : This was held to be specific, on the ground, that, as they would have been intitled, in the character of executrixes, to' the surplus of the personal estate, after payment of the debts, the only effect of the codicil must be, to give them the whole specifically. Other cases of this sort are Webb v. Jones, 2 Bro. C. C. 60, and Burton v. Knowlton, 3 Ves. 107. In Watson v. Brickwood, 9 Ves. 453, the testator gave his whole personal estate to a nephew, he paying thereout his legacies, funeral expences, and simple contract debts. This was held not to exempt the personal estate from specialty debts. The Master of the Rolls quotes the ancient rule, as laid down by Lord Nottingham, that “ the law charges the debts upon the personal estate, and nothing can discharge it, but exclusive, and expressly negative words, whether in the case of hares factus, or hares natus.

There is no doubt, but that if in England a testator gives his whole personal estate, and charges his debts on his real estate, the personal estate must be first applied ; because the technical signifi. cation of the word charge is, a direction that the land shall come in aid of the personalty. And so, doubtless, if he suffers the land to descend. Yet when a testator gives his whole personal estate, the obvious and literal import of the word is, the whole personal estate, of whatever particulars it may be made up ; which the legatees cannot have, if debts are to be paid out of it. Why are these words differently construed in England ? The reason has been already explained. The testator, as against creditors, cannot exempt his personal estate from the payment of debts. As said by Lord Nottingham, the law charges the debt upon the personal estate. The law exempts the real estate, in the hands of the heir, from the payment of debts; and, generally speaking, it is not considered a fund for the payment of debts at all. The testator must be supposed to be aware of this ; and when, therefore, he neglects to provide for the payment of his debts out of his real estate, and to exempt his personal, though he bequeathed his whole personal estate, this must necessarily be understood, as subject to the payment of debts. But can this reasoning apply in this country, where the law charges all debts, alike, upon real, and personal .estate ; and the testator, bequeathing his whole personal estate, knows, that there will be lands in the hands of his heir, on which creditors may come, directly, for the satisfaction of their demands 1 I think not; and I conclude, therefore, that where a testator devises his whole personal estate, and suffers his lands to descend ; or where, after giving specific legacies, as in the cases of Wainwright v. Bendlowes, and Walker v. Jackson, (supra,) he gives the residue ; this is to be considered specific, and the lands descended are first liable to debts. Of course, if a testator merely gives (he residue, this must mean' after the payment of debts; and still more so, if he gives his personal estate, expressly “ after payment of debts.”

Still l must suppose, that personal property, although specifically bequeathed, is liable to debts in preference to land devised. Every devise of land is specific. When a testator gives property specifically, of course he does not intend that it shall pay debts. If, however, he does not leave a sufficient surplus for payment cf debts, his intention cannot have effect, and the law attaches upon the property, as if no disposition had been made. The st. 5 Geo. 2, c. 7, only makes land liable to all debts, as lands are liable in England to debts by specialty. But in England, the personal estate is still first liable to specialty debts ; and, our decisions have declared it the primary fund. It follows, that if the whole real, and personal estate, are devised specifically, the debts must be paid out of the personal estate. If a specific legacy be taken by creditors, the legatee has no right to contribution from the devisee of the land ; although the devisee of the land would, in like case, have a right to be reimbur. sed by specific legatees. There may seem to be some hardship, and irregularity in this, and perhaps it might be well that the legislature should apply a remedy : but it is not for me to alter the law. I think, however, that specific legatees would have a right to be reimbursed out of land descended.

It follows from the views that I have taken, that assets are to be administered in the following order: First, real, or personal estate devised for the payment of debts, or in any manner directed to be so applied. Second, personal estate not specifically bequeathed ; and a bequest of the testator’s whole personal estate, or of the residue after specific legacies out of it, to be regarded as specific. Third, descended real estate. Fourth, personal estate specifically bequeathed. And lastly, real estate devised.

In the present case, the testator gives, by his codicil, the whole ^1'3 Persotlal estate, after the death of the defendant, Paul J. Warley, to the complainant, Charles Warley. If this were all, I should think the legacy specific : but the terms of the codicil are, ** and singular, my real, and personal estate, after the payment of all my debts and legacies.” The argument is, that the devise of the land having accidentally failed, contrary to the testator’s intention, the complainant ought to be in as good a situation, as if the personal estate alone had been given ; and, indeed, has a stronger equity : and that the words, “ after payment of all my debts and legacies,” having been intended to apply to both the real, and personal estate, should, by an equitable construction, and to fulfil the intention, be referred to the real estate. If these words had been used in England, in a will duly executed to pass real estate, the effect of them would have been to create a charge upon the land, in this State, they would have had no effect, as to debts, but have left the property liable, as at law. The question is, whether I am not bound to apply these words to the bequest of the personal estate ; and I think I am so bound.

From the authorities, I am not at liberty to suppose, that the testator’s intention was accidentally disappointed. The settled rule is, that when a will is not duly executed, according to the requisitions of the statute of frauds, wo are not at liberty to read the will as to the real estate. In Heario v. Greenbank, 1 Ves. 298, where the will was void as to the land, on account of the infancy of the tes. tatrix, Lord Hardwicke held, that he could not look into the will at all, to raise a case of election. There was no will of the land. In Boughton v. Boughton, 2 Ves. 12, where the will was not duly executed to pass real estate, but real estate was devised, and a legacy given to the heir, on the express condition not to dispute the will, he held, that the express condition, annexed to the legacy, made a case of election : and he distinguishes it from the case of an implied condition, attempted tó be raised, when by a will, not duly executed, a legacy is merely given to the heir, and the land devised away. He says it was merely guessing at the intent of the testator, who might leave it for that very view. In Buckeridge v. Ingram, 2 Ves. Jun. 666, the Master of the Rolls says, “ I cannot read the will, without the word real, in it; but I can say, for the statute enables me, and I am bound, to say, that if a man, by a will unattested, gives both real, and personal estate, he never meant to give the real at all.”

There are other cases to the same effect, and though Lord Alvanley in Ex parte the Earl of Ilchester, 7 Ves. 372, and Lord Elden, in Sheddon v. Goodrich, 8 Ves. 497, seem to express some dissatisfaction with the rule, not the slightest doubt is expressed of its existence. Perhaps, it is not without some show of reason. One of two suppositions must be made : either that the testator, being ignorant of the law, supposed that witnesses were not necessary to a will of real estate ; or, that, "although he may have intended to give the land, when the will was drawn, yet he altered that determination, and concluded to give only the personal estate. The former, as Lord Hardwicke says, would be only a speculation on the testator’s intention, and opposed to the maxim, that every man is presumed to know the law ; and perhaps it is safer, and more legitimate, to conclude, that the testator intended what he has done. Then I am to read this will as if the words “ real and” were struck out. But I cannot strike out any thing else. On what principle can I strike out the additional words, after payment of all my debts and legacies 1” The testator knew what was in his will, and I must suppose him to have intebded it to operate as it stood, and every word in it to have effect, except as to the giving of the real estate. The words in question, can only have the effect of rendering the personal estate subject to the payment of debts. On this point, therefore, the decree of the Chancellor must be reversed.

On another point I differ with the Chancellor, and that is with respect to the manner in which the debts are to be apportioned between the tenant for life and the remainderman. The old rule was as stated by the Chancellor ; but this has been exploded by more modern decisions. The rule now is, that the tenant for life must keep down the interest; but if the debts are to be paid off, so much of the estate must be sold as is necessary to pay them : or, if it be not divisible, the whole must be sold, and the surplus invested, so that the tenant for life may receive the interest during his life. White v. White, 4 Ves. 32, Lord Penrhyn v. Hughes, 5 Ves. 107.

In this case the whole estate has been sold. The debts must be paid off out of the proceeds of the personal estate, and the surplus of that estate invested, so that the defendant may receive the interest during his life ; the complainant then to receive the principal: and it is referred to the master to report on the proper mode of investment. The defendant must receive the proceeds of the real estate. In other respects, the Chancellor’s decree is affirmed.

Johnson, J., and O’Nealx,, J., concurred.

Decree modified.  