
    H. L. Lloyd and G. W. King, Executrix, and Executor of Wm. Lloyd, vs. H. H. Lloyd and others.
    
      Administration — Marshalling Assets — Wills and Testaments.
    
    The testator directed “that all his just and lawful debts, and all lawful charges against his estate, be fully paid,” and then devised and bequeathed “ all the rest and residue of his property, real and personal,” to his executors, in trust, &c. He afterwards acquired real estate which descended to his heirs at law : Helds that the case could not be distinguished in principle from Henry vs. Graham, 9 Rich. Eq. 100, and that the personal estate bequeathed was liable for payment of debts in exoneration of the real estate descended.
    BEFORE BOTKIN, CH., AT CHARLESTON/
    FEBRUARY, 1858.
    This case came before the Court on exceptions to the Master’s report, which is as follows:
    “ The decretal order of Chancellor Dargan, of the 16th Jan., 1857, directed me to take the account of the executor and executrix, with the estate of their testator; to take the account of rents and profits between the hefrs and distributees of the testator, and the defendants Alonzo J. White, Wm. B. Smith and John D. Ford of the real estate, in which they were jointly interested, and the account between them generally ; also to enquire and report the real and personal estate of the testator; distinguishing between that portion of the real estate which passes under the will, and that which does not; to marshal the assets and to inquire into and report on the debts of the testator, whether by mortgage or otherwise; and whether the estate of which he died intestate ought to be disincumbered by his personal estate for the benefit of his heirs at law or distributees; with leave to report any special matter; also to call in the creditors of the testator by public advertisement, to present their demands forthwith.
    “ By the decrees of Chancellor Dunkin, of the 16th and 17th February, 1857, the several returns of the commissioners in partition of the real estate were confirmed, and the Master was directed to sell the real estate specified in the writs of partition, and to retain the shares belonging to the estate of William Lloyd, deceased, subject to the further order of the Court.
    “ I respectfully report that I have taken the account of the executor and executrix with the estate of their testator, and find the items duly vouched, showing a balance of $274.99 to the 15th Septemher, 1857, in favor of the estate.
    
      “ The account of the rents of the real estate, held jointly by the testator with Alonzo J. White, Wm. B. Smith and John D. Ford, has been adjusted satisfactorily to the parties. I further report that the testator died intestate as to all his real estate, excepting a vacant lot in America street and the house and lot in Pinckney street, owned jointly with A. J. White. I further report that I called in the creditors of William Lloyd by advertisement in the newspapers, to present their claims forthwith, and the schedule (B.) annexed will show which of them have presented their claims to me and established the same. Among the debts is one for $8,500, with interest, due George W. King, the substituted trustee of Mrs. Hannah Louisa Lloyd, under a deed of H. W. Ravenel, and others, to D. G. Joye, dated 20th February, 1851, in which a house and lot at the corner of East Bay and Inspection streets, was conveyed to Daniel G. Joye for the consideration of $8,000, in trust, for the sole use of Mrs. Lloyd for life, and at her death to such of her children and in such proportions as slid by deed or will should appoint or declare. The.said house and lot Was afterwards, viz: on the 15th June, 1852, sold to Mrs. M. J. Morris for $8,500, received by Mr. Lloyd, and for this amount his estate is liable, with interest from his death.
    “ I further report that the remaining personal estate of the testator has been valued by competent witnesses at $12,632.78, as per schedule annexed, part of which is of doubtful value.
    “ With a view to a proper marshalling of the assets, I beg leave to report that, by the will of the testator, executed on the 11th June, 1853, after directing that all his just debts should be paid, he devises and bequeaths all the rest and residue of his estate, real and personal, to his executrix and executors, in trust for the sole and separate use of his wife during her life or widowhood, with special limitations over ; and the testator departed this life on the 10th August, 1856; that all his real estate, with the exception of a moiety of a lot, held jointly with Mr. A. J. White, and a vacant lot in America street, was purchased by him after the date of his will, and is distributable under the Intestates’ Act.
    “That both the personal and real estate were heavily laden with debt at the testator’s decease, and that the personal estate is wholly inadequate for the payment of the debts.
    “ It appears to me that the whole of the rest and residue of the estate, is specifically devised and bequeathed; that the land acquired after the making of the will should first be applied to the payment of the debts, afterwards, the personal estate specifically bequeathed, and last the real estate specifically devised as before stated — but the question is respectfully submitted to the judgment of the Court.
    “ I further report that the house and lot at the corner of Mazyck and Queen streets, was acquired after the date of the will, and I recommend that the same when sold be applied in the same manner as the rest of the real estate descended. I further report that, under the several orders I sold the real estate to the several purchasers named in schedule D. annexed, for the prices therein mentioned, all of whom have complied with the terms of their purchases and have received titles from me. The schedule will exhibit the particulars of the costs and net sales among the parties entitled.
    “ And lastly, I respectfully report schedule E., showing the result of the net sales of the real estate and the value of the lot not yet sold, as amounting to $38,853.58, from which after deducting the debts mentioned in said schedule, there will remain a balance of seven thousand seven hundred and forty-eight dollars, to reimburse the personalty for the debts paid thereout by the executor.
    “ From which it results that the following will constitute the estate devised and bequeathed to Mrs. Hannah L. Lloyd during her life or widowhood, viz:
    “The above slim from the real' estate to replace personalty already applied to debts..................................$ 7,748 15
    Personalty in schedule C...................................12,631 78
    Balance of cash as per executor’s account............. 274 99
    Half house and lot corner East Bay and Pinckney streets................................................ 660 57
    Vacant lot in America street.............................. 600 00
    $21,915 49
    “ Trust property under the deed of H. W. Ravenel and others, to D. G. Joye of 20th February, 1851....................................................$9,541 25.”
    The complainants excepted to the report on the ground : '
    That the Master should have ruled that the debts of the testator are to be paid out of his personal estate in exoneration of the descended realty, instead of ruling the contrary.
    Dünkin, Ch. Upon hearing the Master’s report, my impressions were in favor of the exception. But I had occasion to consider this subject very fully in the case of Brown vs. James, 3 Strob. Eq. 24; and, although there are some verbal differences in the wills, I am of opinion that the construction must be the same. The manifest object of the testator, William Lloyd, was to give his whole estate to his executors for the benefit of his family, in the mode therein prescribed. The provision for the payment of his debts was simply superfluous. If he had devised and bequeathed to them his whole estate, “ subject., however, to the payment of -his debts,” the effect would be the same, and the qualification, (as a qualification) equally nugatory. In Brown vs. James, the testator bequeathed to the object of his bounty, all his personal property and attempted a specification, of what it consisted, concluding with an, &c.! Although it was expressly premised in the will that the disposition therein made was “ after the payment of his just debts and funeral expenses,” yet the legacy was held to be specific, so far as to subject real estate descended to the payment of debts, before resorting to the personalty thus bequeathed, 
    
    But, as remarked by Chancellor Harper, in Warley vs. Warley, Bail. Eq. 397, every devise of real estate is specific. The testator in this will has devised the estate, real and personal. As to the realty the devise is necessarily specific, and, as a resort for the payment of debts, it must be postponed to real estates descended. For the purposes of this inquiry, the same character must attach to the personalty disposed of in the same clause. In the absence of any express direction by the testator, the principle of law in this country is that the property, of which the testator has made no testamentary disposition, shall be applied to the payment of debts in priority to that of which he has so disposed. Then, in the language of the Court in Broion vs. James, has the testator so charged the estate devised and bequeathed in this case as to exempt the estate primarily liable according to the mode prescribed by law for the marshalling of assets? It is not perceived that any other charge was created, or intended to be created, than that which the law implies.
    It is ordered and decreed that the exception be over-ruled, and that the report of the Master stand as the judgment of the Court.
    The complainants appealed on the grounds,
    That the exception to the Master’s report should have been sustained on the ground therein taken, and his Honor, the Chancellor, it is respectfully submitted, should have decreed accordingly.
    
      Yeadon, for appellant.
    
      McBeth 8? Ford, contra.
    
      
      
        ) The following extract from the will contains every thing necessary to a complete understanding of the case :
      “First. I will and direct that all my just and lawful debts, and all lawful charges against my estate, be fully paid.
      “Second. I give, devise and bequeath all the rest and residue of my property and estate, real and personal, to my executrix and executors hereinafter named, and to such of them only as shall qualify as such on this my will, and to the survivors or survivor of them, and the heirs, executors and administrators of such survivor forever, to his, her, or their only use and behoof forever. In trust, to and for the sole and separate use and benefit of my beloved wife, Hannah Louisa Lloyd, during her life or widowhood,” with limitations over.
    
   The opinion of the Court was delivered by

Dunkin, Ch.

This Court is of opinion that the case cannot be distinguished in principle from Henry vs. Graham, 9 Rich. Eq. 100.

It is ordered and decreed that the decree of the Circuit Court be reversed; that the exception to the Master’s report be sustained, and that the accounts he reformed accordingly.

Johnston and Wardlaw, CC., concurred.

Decree reversed.  