
    JOHN HARRIS and others, against JOHN ROSS and others.
    
    Where one legatee can resort to two funds, and another to but one of them, the former shall not be allowed to resort, in the first instance, to that which is the sole reliance of the latter legatee.
    A charge upon land by will, for the maintenance of one who is deaf,, lame and helpless, to begin immediately, and to continue during- the life of such beneficiary, is to be preferred to legacies of an ordinary character charged on the residue of the estate after the expiration of a life interest therein.
    There is no reason, generally, why land devised to several, burlhened with a charge for the maintenance of a person, shall not be sold for a division;— but this must be done cum onere. Where, however, the maintenance of snc.ii person can bo had on the land itself, but, probably, cannot be secured' by a sale, a Count of Equity will only order it, experimentally, to ascertain bow the fact is.
    Cause removed from the Court of Equity of McDowell County-
    Lewis Harris made his will in Jnly, 1845, containing the following provisions:
    
      “I give to my wife all my lands with all my stock of every kind, and all my farming tools, and household and kitchen furniture, to be fully possessed by her during her life, or widowhood. My daughter, Sarah, to have her maintenance off the land, during her natural life. I give to my two sons, Giles and John, three hundred dollars each; to be raised out of my estate at the death of my wife. I give to my grand-son, Joab Harris, sixty-five dollars, when he arrives at the age of twenty-one years. The balance of my estate, after the payment of my debts, to be equally divided between all my children.” He appointed his son John Harris and John Ross, executors; and the testator died shortly afterwards and both of the executors proved the will, and left the effects in the enjoyment of the widow, who lived on the land, and kept her daughter, Sarah, with her. She, Sarah, was almost entirety deaf, had but one hand, and being considerably advanced in years, was, therefore, unable to perform any labor, or earn any thing towards her maintenance. The widow died in March, 1856, and at her death, administration of her estate was granted to her son Giles, who took possession of her effects; and at the same time, Ross, as executor of the testator, took possession of such of the personal things originally belonging to the testator, as were left by the widow. Giles Harris had lived with his mother and sister on the land, and worked it so as to maintain them; and after the widow’s death, he and Sarah continued in the possession of the place, as before, for the purpose of maintaining Sarah.
    The bill is filed by John Harris and Joab Harris, and the other children of the testator, against Giles, Sarah, and John Ross, and seeks an account of the personal estate of the testator and intestate widow, and that the latter may be equally divided among all the children, who are her next of kin, and that the former may be applied to the satisfaction of the several pecuniary legacies to John, Giles, and Joab, if sufficient for that purpose, and praying for a sale of the land, which the bill alleges to be of the value of $2.500, and that out of the proceeds, a sufficient sum shall be set apart, in the first instance, and invested so as to yield interest annually to an amount adequate to the comfortable maintenance of Sarah, and out of the residue, the legacies to the two sons and grandson, or any balance of them, satisfied, and the surplus divided among all the children, under the residuary clause.
    The answers of Eoss and Giles Harris, set out accounts of the personal estates of the testator and Mrs. Harris; and that of the latter and Sarah, state, that she is decrepid, and so infirm, as to be wholly unable to provide for herself, and was the peculiar object of the care of her parents — that the purpose of her father, in charging her maintenance on his land, was to provide her with a home, and secure, certainly, the means of her subsistence by an income, issuing out of the land; that the profits of the land which is cultivated for her, by her brother Giles, is barely sufficient to afford her a scanty subsistence, and would not do that, if she were not saved the expense of hiring a house, by living in that on the land; that the whole value of the land does not exceed $1,000, and that it 'would not sell for that sum; and that the interest thereon, would not support her in her present condition, much less, would it be adequate, hereafter, as she is old, and her infirmities increase yearly, so that each succeeding year will probably add to the expense of her maintenance; and, therefore, she insists that the land ought not to be sold, as she is willing to take it as it is, in satisfaction of the charge of her maintenance.
    To facilitate the hearing, the parties consented to have certain inquiries made by the master, and he reported the nett balance of the testator’s personal estate to be $148.47, in the the hands of the executor, Eoss, and of Mrs. Harris’ estate to be $72.52, in the hands of the defendant, Giles Harris. He further reports, that it will require the sum of $80 a year to maintain Sarah, comfortably, and that the land would not sell for more than $1000, and that the interest thereon would not support her; but, that the use of the land and houses, if unsold, would afford her much more comfort, as a home.
    Neither party excepted to the report, but the plaintiffs insist that the master is mistaken in finding the value of the land, and say that they will make it bring much more.
    Gaither, for the plaintiff.
    
      Avery, for the defendant.
   Rukrin, J.

Of course, the small sum in the hands of Giles Harris, as administrator of his mother, is subject to distribution amongst her next of kin, and there is no reason why it should not be made immediately.

The personal estate of the testator, Harris, in the hands of Ross, cannot, until after the sale of the land. It is, indeed, applicable to the legacies to the two sons, and the grandson, but it may not be in equal proportions. For the latter legacy is payable out of the personal estate only, while the other two are charged upon the whole estate, including the land.— Neither is to be defeated, if there are funds for their satisfaction, and, as it is ascertained that the personalty is not sufficient, and that, if divided,pro rata, the grandson will lose the the larger part of what is given to him, the application must be deferred until it shall appear what the land will raise, clear of Sarah’s incumbrance, as it may bring enough to allow a payment in full to the grandson out of the personal estate, and then leave a sum, with the residue of the personal estate, sufficient to pay the $300 to each of the sons. In the meanwhile, the parties may require Ross to bring the money into court, and have it invested at interest, until it shall be seen how it ought to be applied. This is upon the common doctrine that testators intend the payment of all their legacies, if there be funds, and that where one legatee can resort to two funds, he shall not resort to the one, in the first instance, to which alone the other can look, so as to exhaust it, and defeat the latter.

"With respect to the principal question, arising out of the provision for the daughter, Sarah, it may be observed that it is assumed in the pleadings on both sides, that it is the preferable charge; and the Court considers that to be correct. That charge, attached to the land immediately upon the death of the testator, and came into enjoyment as against the mother, the tenant for life; she held subject to it, and the will continues it, during the daughter’s life; consequently, it continues to exist in the same state against those who take after the mother. But it is nothing more than a charge. No estate in the land vested in her, nor any right to the possession against the heirs at law. It is clear, that the testator did not intend any thing of that kind; because he directs the $600 for his sons to be raised out of Ids estate at the death of Ids wife, and, therefore, he must have contemplated that a sale might then be necessary, notwithstanding the daughter might be living. All the perplexity in the case, arises, therefore, out of a doubt, whether a sale will insure a proper maintenance for the daughter and leave any thing for the heirs, or the two sons. If it will not, as the master finds, it is manifest, that a sale can do no good to any one; and, therefore, as the land is all she has to look to, and she is willing to occupy it for her charge, there ought not, in that case, to be a sale, but she ought to be left in the enjoyment, unless the residuary devisees prefer having it sold, and securing to her an annual sum for maintenance.— That is not likely to take place, as she, and the defendant, Giles, are two of the devisees, and they are both opposed to the sale, at present. But, the other parties insist that the land will bring a sum sufficient to secure the sister’s maintenance, —-discharge the pecuniary legacies, and leave a surplus; and they further insist, that the only way to determine that, is by a sale. The Court, therefore, though inclined to concur with the master, as to the arrangement, best for the family, is obliged to have regard to the rights of the legatee, John Harris, and of those entitled to the residue, so as to give them the opportunity of, at least, an experimental sale, whereby it can be seen whether it will duly secure the maintenance of Sarah, and at the same time, yield anything for the other parties. It must, therefore, be declared, that Sarah is now entitled to the sum of $80 annually, for her maintenance, and also, that she is entitled to have such further sum allowed her annually, as from time to time, from her increasing age and infirmities may be proper, with liberty to her to apply therefor. The sale will, therefore, be made on these terms: That the purchaser shall give bond and good security to pay into Court, on a certain day, annually, the sum of $80, for the use of Sarah during her life, and that the same shall also be a charge on the land, and that for tbe principal sum, which, at six per centum, will yield interest to the amount of $80, namely, the sum of $1333.33-J, the purchaser shall give bond and good security, payable upon the death of Sarah, and as a further security, that the title of tbe land be retained until the further order of the Court: and that for the residue of the price, over and above the sum of $1333.33i, the purchaser give bond and good security, payable at one and two years with interest from the first day of the next term of this Court, subject, when collected, to the future order of the Court, so that it may be applied, if need be, to enlarging the allowance to Sarah, or to the other purposes of tbe will as may be right. U nless the land should, therefore, bring at least $1650, it would not, in the opinion of the Court, yield an adequate security for the daughter’s maintenance, and the sale ought not to be confirmed, but, she left in the occupation according to her offer; and, therefore, the master will not let a purchaser into possession at a less price than that sum, until he shall have reported the sale to the Court, and the further order of tbe Court thereon.

Per Curjam, Decree accordingly.  