
    Heyward v. Glover.
    The testator first gave pecuniary legacies to he paid out of his estate in three years after his death, without interest. lie then divides his estate, bonds, notes. &c. between a sister and a brother’s (William) children ; to each bequest the condition was attached, “ after paying their proportion of my debts.” He then gives the residue of his estate to his sister. By a codicil he leaves twenty-five negroes to the children of another brother, Josias, his “ executor,” to employ the labor of the said slaves during their minority, and apply the profits of the same to their benefit. Held that the pecuniary legacies were a charge upon the whole estate, except as to the negroes o-iven to the children of Josias. Also held, that his sister and the children of his brother William were chargeable with the legacies and debts in proportion to the shares of the estate which they received. The word “proportion” indicates that each of the two great devisees were to pay according to the amount devised to them. Legacy charged on the whole estate, except that part given to Josias’s children. The case referred to ascertain if there was any residuary estate to pay the pecuniary legacies j and whether the executors had retained the estate in their hands longer than necessary to pay the legacies.
    John Heyward, Esq., by his last will, bearing date the 5lh of February, 1814, among other things, gave as follows: “I give to my niece, Ann Heyward, and my nephews, James, Thomas, John, and George, children of General Cuthbert, the sum of £1,000 each, to be paid out of my estate, in three years after my decease, free of interest. Also, I give to my brother, Josias Heyward, twenty-five negroes, to be drawn by lot, in families, out of the gang I got by my father’s estate,” and directs, in order to prevent families from being separated, that if he drew more than twenty-five, he should make compensation for the surplus.
    The testator then gave to his sister, Mrs. Glover, several plantations all the negroes which were given to him by his cousin, John Heyward, all his horses, carriages, furniture, and plate, and all his moveables at Trickton. “Also, I give and bequeath to my said sister, the crop now on hand at the Fisher’s Hill plantation (one of the plantations devised to her) ajter payment of her proportion of my debts, together with all bonds, notes, and accounts due and owing to me, and all my ready money.”
    The testator then gives to his niece, Ann Heyward, and his nephews, William, Thomas, John and Daniel, *several other plantations, and all “the rest and residue of the negro slaves which I got by my father’s estate, equally between them, share and share alike, with limitations over in case of their dying under age; also the crops now on hand at the Walnut Grove plantation (one of the plantations devised to them) I give and bequeath to my niece, Ann, and to my nephews, William, Thomas, John, and Daniel, the children of my brother, William Heyward, as aforesaid, after paying their proportion of my debts, equally between them; ” and as to any other estate which he might die possessed of, he gave the same to his sister, Mrs. Glover. No crops were on hand when he died, but cotton at Fisher’s Hill, worth about §1,600. He had sold what he had when he made the will. He had given the crop at Walnut Grove to Josias Heyward in his lifetime. The legacies were finally paid off in 1825.
    By a codicil, dated 30th of September, 1819, the testator, taking notice of the death of his brother Josias, gave the twenty-five negro slaves (given by the will to’Josias) to the children of the said Josias, Charlotte, Daniel, Thomas, and Joanna; and in case of the death of any one or more of them under twenty-one, or marriage, to the survivors. “And I do request and enjoin my executors that they do, with their best discretion, employ the labor of the said slaves, during the minority of the said children of the said Josias Heyward, and apply the profits of the same to the benefit and advantage of the said Charlotte, Daniel, Thomas, and Joanna.”
    The testator died in 1820, possessed of a considerable estate, and owing little or nothing.
    Upon a bill filed in 1825, by the children of William Heyward, the children of Josias Heyward, by their next friend, claimed the negroes bequeathed to them, and an account of their labor. The executors, by their answers, set forth that there was no residuary estate ; that they had paid the legacy to the Culhberts by the *crops of the es-tale, in which the negroes bequeathed to the children of Josias Heyward were employed, as well as all the other negroes, and insisted that they had a right to do so.
    DeSaussure, Chancellor.
    The general rule is, that property spe' cifically devised, does not contribute to the payment of debts, until the failure of the devised residuary estate. But the testator has an absolute control over this subject. He is the giver of the legacies, and may attach what conditions he pleases. Thus he may, if he choose, fix the debt on the specific legacies. It is always a question of intention. If no intent appears, then the. rule of law applies.
    In the case before us, the testator appears desirous not to die intestate, as to any part of his estate; for after many specific devises and bequests, he gives all his bonds, notes, and accounts, and all his ready money, to his sister, Mrs. Glover, and then superadds a general residuary clause, in favor of his said sister, as to any other estate, real or personal, which he might die possessed of, and not otherwise partic-dularly devised or bequeathed. It is said, there is no undisposed resid-duary estate : but of that, the complainants would be entitled to an inquiry before the commissioner, if the existence of such a fund would entitle them to an exemption from contribution to the debts. The will must be examined, to find out if it furnishes any indicia of an intent out of what funds the debts are to be paid. The testator having made large devises and bequests to his most favored relative, Mrs. Glover, bequeathed her the crops on hand at the Fisher’s Hill plantation, after payment of her proportion of his debts, with bonds, notes, accounts, and ready money. So, after large devises to his nephews and niece, children of his brother William, he bequeathed the then crop on hand at the Walnut Grove plantation, * after paying their just proportion of debts, equcdly between them. These clauses manifest pretty plainly his intention, that these large devisees and legatees should bear the burden of his debts proportionably.
    That he did not intend the property bequeathed to his brother, Jo-sias Heyward (and afterwards by his codicil to his children) to bear any part of the burden of the debts, is pretty obvious from his avowing to direct them to pay any proportion, as he did in the other clauses, and by his actual direction, that the executors should employ the labor of the slaves bequeathed, most beneficially, during the minority of the children of the said Josias Heyward, and apply the profit to their use. To this it might be added, that the postponement of the payment of the five legacies of £1,000 to each of the five children of General Cuthbert for three years, without interest, seems to have been made to give time to the legatees charged with the debts to pay them from the income.
    Upon the whole, I have come to the conclusion that the intention of the testator is sufficiently apparent, that the debts were to be paid by Mrs. Glover and the children of William Heyward, to whom he devised and bequeathed the great bulk of a great fortune, with an express declaration that it should be after they paid their proportions of his debts, which obligation he does not attach to the other and smaller devises and bequests.
    I apprehend, too, that the word “proportion” indicates that each of these two great devisees, Mrs. Glover and the heirs of William Hey-ward, should pay according to the value and amount devised to each respectively.
    It is, therefore, ordered and decreed, that the defendants do account with the complainants, and that in accounting, the executors of Mr. John Heyward do charge Mrs. Glover with such proportion of the debts of the testator, as the whole value of the estates devised and ^bequeathed to her, bears to the whole value of the estates devised and bequeathed to the children of William Heyward, and the remainder of the debt to be charged to the said heirs of William Heyward deceased. The children of Josias Heyward, being entirely exempted from contributing to the payment of the debts, are to receive the whole amount of the proceeds of the labor of the slaves bequeathed to them according to the will of the testator. The costs to be paid out of the estate.
    From this decree,
    Petigro for the executors of J. Cuthbert,
    appealed, on the ground that the legacy of £5,000 was a charge on the negroes bequeathed to the complainants, as well as on all other ne-groes and lands of the testator.
    Martin, for J. Cuthbert and wife, (the daughter of William Heyward,)
    appealed from the decree, on the grounds: that the legacy of £5,000 was not chargeable on the proportion of negroes given to them) or if chargeable at all, the payment attached only to the services of those negroes for three years, and that after that time the executors were bound to account for their hire. And that under any circumstances the decree should have required the defendant to account; to the end that it might be ascertained whether there were not funds to pay the legacies at the expiration of three years from the testator’s death.
    Petigru.
    The payment of debts does not enter into the case; they were trifling and have all been paid, and there is no dispute about it. It is admitted, that the debts were to be, and were in fact paid out of the crops bequeathed to Mrs. Glover and William Heyward’s children. The testator, so far as it appears, left no residuary* estate, ile has devised and bequeathed the whole of his estate specifically, and in a pecuniary legacy of £5,000, and the question is, out of what fund are these legacies to be paid ? Legacies are general, demonstrative, or specific. The legacy to Mrs. Glover is specific. Those to Josias and William Heyward demonstrative. There can then be no doubt that if Mrs. Glover, whose legacy is specific, be bound to contribute, those bequeathed to Josias and William must of course. A specific legacy identifies the thing given, by a particular designation by name or description, and is what Lord ITardwicke calls, an individual legacy, and belongs to the first class. Demonstrative legacies constitute a second class, also specific, as where the thing given is described in general terms, and both are equally bound to contribute. 2 Fonbl. 369. 2 Madd. Cha. 7. The crops are equally specific, and the same rule applies. When there are no funds out of which a pecuniary legacy can be paid, without breaking- in on the specific legacies of personal estate, they must all contribute. Sayer v. Sayer, Precedents in Chancery, 392. Gilb. For. Roman. 328. It would mock the pecuniary legatee to say that he should take nothing. But in this case the legacy of £5,000 is directed to be paid out of his estate after three years from his death, and is a charge upon the whole personal estate. The provision that it should be paid after three years shows that it should be paid out of the profits, and not by sale of the estate.
    Martin, contra.
    The rule is, when there are no funds out of which to pay pecuniary legacies, that specific legacies must contribute; and the only question is, whether this will has not exempted the legacy to the children of William Heyward from this contribution, by the last clause of the codicil. Ennis v. Johnson, 4 *Ves. 508, 751. The rule laid down in Ennis v. Johnson is, that you must look through the whole will to see what the intention is. The last clause of this codicil directs, that the property bequeathed to them should be employed to the best advantage for their benefit during their minority, without any restriction or limitation as to time or circumstance. The will gives to Mrs. Glover at least three-fourths of Iris estate, and all taken together shows the intention to exempt the legacy to ihe children of William Heyward from contribution. In any event a reference ought to be had to ascertain whether there was or not any residuary estate.
   Curia, pier

Colcock, J.

In this case we are informed that the question intended to have been submitted to the chancellor was, whether the property given by the testator to the children of his brother Josias Heyward, was made chargeable with the payment of a portion of the pecuniary legacies given in the first clause of the will to the testator’s niece and nephews, and not whether it was chargeable with the payment of the debts. I think the chancellor has in effect decided the question, as it is clear to my mind, that the testator means to say, that the negroes left by him to the children of Josias Heyward are left free of all incumbrance, and he most clearly says, that the pecuniary legacies are to be paid by those who are charged with the payment of the debts, either considering the legacies as debts or supposing that the testator meant them so to be considered. In the result, however, we. concur with the chancellor. For the words used in the first clause of the will are certainly sufficient to charge his estate generally with the payment of the pecuniary legacies, independently of the words used in the subsequent clauses as to the payment of the debts. The only question then would be, are the words used in the codicil in re-Ltio11 t0 the *bequest to Josias Heyward’s children, such as to exempt their legacy from the operation of the general words used in the first clause; and this I think was the intention of the testator. His estate was a very large one, and the bequest to Josias’ children (in comparison to the -whole) a mere pittance. Sensible of this, and no doubt well recollecting the charge which he had made on his whole estate for the payment of the five thousand pounds to his nephews and niece in the first clause, and also of the infant state of these children, he says, “I do request and enjoin upon my executors named in my will aforesaid, that they do with their best discretion employ the labor of the said negroes during the minority of the said children of the said Josias Heyward, and apply the profits of the same to the benefit and advantage of the said Charlotte, Daniel, Thomas, and Joanna Heyward.” Now, here is an express application of the profits of the labor of these negroes, which is utterly inconsistent with the general charge made on the whole estate to pay the £5,000, and being found in the last of the will, must be considered as intended to exempt this legacy from contributing in any degree to the payment of that sum. The decree is affirmed, and the defendants ordered to account to the children of Josias Heyward for the whole amount of the proceeds of the labor of the slaves bequeathed to them. But it has been further contended in behalf of the children of William Heyward, that if there be any residuary estate, that estate is subject to the payment of the pecuniary legacies, because the devise and legacy to the children of William is specific. And also that they are entitled to an account in order to enable them to decide on the propriety of the executors having kept the estate five years for the payment of the pecuniary legacies, when it is clear that the testator thought they might be paid in three. The court are of opinion, that it is proper these *matters be referred to the commissioner to report upon. If there be a residuum, it is liable to the payment of these pecuniary legacies, and if there be none, and the income of the estate for three years was sufficient to pay them, then the executors should account to the children of William Heyward for the rents and profits of their portion of the estate for the two last years.

Decree affirmed.  