
    *Martha Thompson (Administratrix of James Thompson, deceased,) v. Jacob W. Thompson and Nelson McCollister.
    It seems to be a well-settled principle, that the purchaser of an unincumbered estate, if he agree to take it subject to the incumbrance, and an abatement is made in the price on that account, is bound to indemnify his grantor against the incumbrance, whether he expressly promise to do so or not — a promise to that effect being implied from the nature of the transaction.
    .A will is to be construed in the light afforded by the circumstances under which it was made, and the subjects to which it relates.
    And its terms are not, of necessity, to be construed technically and with a strict reference to grammatical accuracy, but sensibly an.d liberally, in order to give effect to the testator’s intentions.
    Nor is it to be so construed as to destroy ail benefit from a devise, if it ean consistently be avoided.
    A testator may, by an express direction in his will, charge his personal estate with the removal of an incumbrance upon his realty, although not personally bound for the debt; or, he may do so by dispositions and language that are tantamount to an express direction; as, where the continuance of the charge primarily on the land would be repugnant to some of the provisions of the will and defeat them. In this, as in other cases, the principal object of regard is the testator’s intention.
    If one person, upon a sufficient consideration, make a promise to another, for the benefit of a third person, such third person may maintain an action at law upon the promise.
    Error to the court of common pleas of Pickaway county.
    The plaintiff, as administratrix, with the will annexed, of James Thompson, deceased, in the course of her administration of said •estate, in the year 1852, paid to the Ohio Life Insurance and Trust Company the snm of $700, principal, and three installments of interest, amounting to the sum of $87.30, being the amount then due. on a mortgage to said company, made by ¥m. Hamilton, in 1835,1 on lot No. 147, in Circleville, Ohio.
    *On the settlement of her accounts with the probate court of said county, the defendants, being heirs and legatees of said deceased, excepted to this payment to the Trust Company, as they had', notified the administratrix they should do, before the same was made. Their exceptions were heard and overruled by the probate court, and the payment allowed to the administratrix. The defendants appealed to the court of common pleas, where, upon final hearing, the decision of the probate court was reversed.
    This petition in error was filed in the district court, by the administratrix, to reverse the decision in the common pleas, and the district court reserved the question presented, and sent it to this court for its decision.
    The question in controversy arises upon the following agreed' statement of facts:
    
      “ One William Hamilton, being the owner of lot No. 147, in Circleville, on the 17th of July, 1835, mortgaged the same to the Ohio Life Insurance and Trust Company, to secure the payment of $700, loaned from said company. Said lot was afterward conveyed by Hamilton to J. L. Eranklin, subject to said mortgage, and by Franklin to J. L. Green, subject to the same incumbrance. On the 27th of April, a. d. 1844, J. L. Green conveyed said lot to James Thompson, the testator — the consideration $450 ; and the deed a general warranty, except as follows: ‘ Which said property is subject to the lien of a mortgage, to secure the payment of the sum of $700, executed by W. Hamilton and wife to the Ohio Life Insurance and Trust Company (dated as above), and is hereby conveyed to said Thompson, subject to the lien and incumbrance of said mortgage.’ In making said conveyance, the amount of said mortgage was deducted from the purchase money, and the consideration in the deed-was for the balance of $450. Said Thompson paid the semi-annual interest, due on said mortgage, from the time of his purchase till his death, and died on the 3d day of November, a. d. 1850, and, by his last will and testament, duly proved, etc., devised said lot, No. *147, to his daughter Lucinda; and it is admitted that the following clauses of said will are all that are applicable to the question in controversy, to wit:
    
      “ Item 1. It is my will that, out of my personal estate, my just debts be first paid, and that the residue of my personal estate be equally divided between my children.”
    “Item 5. I devise and bequeath to my daughter Lucinda Thompson, during the term of her natural life, lot No. 147, in the town of Circleville, and county of Pickaway, with the appurtenances thereto belonging. Also, 200 acres of land in said_Yellow Bud tract, running across the same from east to west, parallel with Martha Ann’s said tract, in said Yellow Bud lands. At the death of the said Lucinda, the said lot and 200 acres of land to be equally divided among her children.”
    “ Item 9. In case any of my aforesaid children, to whom I have made devises, shall die without issue, it is my will that the property hereby devised to such one as shall die without issue, shall be held and enjoyed by the rest of my children then living, until the last of my children shall die, when the property thus held shall be equally divided among my grandchildren.”
    
      Page & Renick, for plaintiff in error, presented an argument, of which the following is the substance:
    I. It is admitted as the rule in England, that if a man dies leaving a debt of his own contracting, which is a charge on his real estate, his personalty is the primary fund for payment. If he leaves real estate subject to a debt contracted by another, the heir or devisee takes such realty subject to the debt. In the case of a debt contracted by himself, his personalty is bound by it, unless he plainly manifests an intention to exempt it. In the case of a debt imposed on the realty by another, he must manifest an intention to charge his personalty, otherwise it is exonerated. The intention of the party from whom both funds proceed is the governing principle. Where an estate has been purchased ^subject to a mortgage, and the purchaser remains entirely passive, the land continues subject to the charge, and neither the executor nor the heir of the purchaser is liable for the payment of it. Where the purchaser dies intestate, the charge can be thrown on his personal estate, as the primary fund only, by acts or circumstances evincing a decided intention to make the debt personally his own.
    II. As to the acts and circumstances which are held to evince such intention, there is considerable conflict among the cases, and as the present case is one of a will, it is not necessary to offer a criticism upon the authorities.
    
    “ As to wills, the result of the cases seems to be,” says Chancellor Kent, “ that the testator may, by express directions, charge such incumbrance on his personal assets; or even without express v; ords, he may do it by dispositions and language that are tantamount; as if, for instance, the continuance of the charge primarily on the land, would be repugnant to some of the provisions in the will, and defeat them.” Cumberland v. Codrington, 3 Johns. Cas. 372.
    III. Thompson, the testator in this case, did not, by express directions, charge the mortgage in favor of the Ohio Life Insurance and Trust Company, upon his personal property; but he has done so by dispositions and language that are tantamount: the continuance of the charge on the land, would be repugnant to the provisions of his will. By the will, the lot was devised: 1. To his daughter Lucinda during life. 2. At her death, the said lot to be equally divided among her children. 3. In the event of her death without children, the said lot to be held and enjoyed by the rest of the testator’s children then living, until the whole of them should be dead. 4. Upon the death of all the children of the testator, the said lot to be equally divided among all his grandchildren.
    *It is perceived that the" testator has carved several estates out of one inheritance, viz: first, an estate for life; second, a contingent remainder .in fee simple; third, an executory devise for life ; and fourth, an executory remainder in fee simple.
    It is evident that this testator’s intention was to keep this property in his family. He determined that it should not pass into the hand of strangers until every child of his was dead. Hone of his children had, upon any contingency, a fee simple; that is, the power to convey the premises in question to a stranger. Whether this provision in his will proceeded from attachment to that property, or distrust of the devisee, or a wish to provide for her and her children, in such a manner that improvidence, fraud, or accident could not deprive her of the bequest, it is not necessary for the court to determine. He had the power to dispose of his estate, according to his own inclination, and from motives sufficient in his own mind, he resolved to continue these premises in his family during a certain period. The fact that he did so determine, seems too evident for argument. Now, at the death of the testator, there was :a large incumbrance on the estate which he had thus disposed of. That incumbrance was due, and it was to be extinguished by some person. If it was not to be discharged by his executor, then, upon whom rested the obligation to pay it? Upon the devisee of the life estate, or upon her children, who were not then in existence ? Upon her brothers and sisters, who might never inherit ; -or upon their offspring, whose existence and inheritance were still more contingent and remote ? Did the burden rest upon any single person, or all these persons? If upon more than one, in what manner was the debt to be apportioned ? Is it to be supposed the testator intended that his daughter Lucinda should assume the incumbrance ? Why should this duty rest exclusively upon her, when her interest was but a life estate, and the fee simple was devised to others ? Will it be maintained that it was the duty of the remainder-men to pay the debt ? It would not seem reasonable to .require payment of them, ^because their interest in the premises was contingent, and very distant. They might discharge the incumbrance and yet never enjoy the estate. Supposing the obligation to lie upon Lucinda Thompson, what would be the consequence of her neglect or inability to pay the mortgage? On the -other hand, if the persons who are to enjoy the remainder of the •estate should fail to pay it, what becomes of the inheritance ? The direct consequence of a neglect, refusal, or inability of the devisee to pay the mortgage debt, would be a sale of the premises to a stranger in fee simple. A sale of the lot in fee simple would defeat the intention of the testator. Therefore, the continuance of this charge primarily on the land, would be repugnant to the provisions of the will. If so, it was the duty of the executor to discharge the debt out of the personal assets.
    IY. It is deemed a valid argument, in constitutional law, to imply from the grant of a power the ordinary means of its enjoyment .and execution. A power to create implies a power to preserve. A power to destroy, if wielded by a different hand, is hostile to and incompatible with these powers to create and preserve. Where the repugnancy exists, the hostile power must yield. By parity of rea•son, from a devise may be implied also a devise for the necessary and ordinary means of enjoyment and execution. To devise an estate for a certain purpose, is to devise the ordinary means of exeeuting that purpose. To make a bequest subject to such infirmities' as will inevitably destroy the purpose of the bequest is a gross repugnancy, which is never to be inferred. It is to be presumed that a testator would not leave it in the power of accident or fraud to defeat his intentions, especially where it is a matter of so little difficulty, by removing the incumbrance, to effectuate his purpose. It is, therefore, not an unnatural inference that he designed to remove all the obstacles in the way of executing his intentions, which he had the power to remove.
    Y. Estates may arise from implication — a plantation or square *of buildings may be bestowed on a person by mere inference of law. 1 Jarman, chap. 17 ; Walker v. Whiting, 23 Pick. 317. If so, may not an incumbrance to the enjoyment of an estate •be removed by implication ? When that incumbrance must defeat the intent of the testator, by destroying the devise, is it not a fair inference that he did not intend the object of the devise to be disappointed of his bounty ?
    It is a rule in the construction of wills, that repugnant expressions must yield to an intention and purpose expressed or apparent upon the general context. With greater propriety we may affirm that an incumbrance, which it was a matter of choice with the testator.to extinguish, and the continuance of which will inevitably defeat his intention, apparent in the general context of his will, is a repugnance which must yield and be removed. The court is bound to give effect to a devise wherever they can, and if one mode of construction will support the devise, and the opposite may defeat it, the latter must be rejected.
    YI. But it may be objected that a superior title in a third person would, equally with an incumbrance, defeat the devise.
    It is answered that the instances are not parallel. The devise of an estate subject to a mere incumbrance, and of one to which a third person has a better right, are not analogous cases. In the former case, the testator has a right to devise the estate; he can dispose of the premises, and the charge upon them is not inconsistent with the passing of fee. But when he attempts to devise an estate which belongs to another, no interest passes, and the devise is absolutely void. An executor can not be compelled to purchase an estate in which the testator had no interest, for the benefit of a legatee. But it is the duty of an executor, in most cases, to dis>charge a mere incumbrance on the realty.
    
      If the title to lands devised prove invalid, it is an accident or misfortune, not contemplated by the parties or law, and defeats' beyond remedy, both the intention of the testator and the object of his bounty. The opposite counsel might, with as much reason, *reply that the will is defeated when the premises are swallowed up by an inundation or earthquake.
    It may not be in the power of an executor, or the testator himself, to purchase or extinguish a superior title. The owner may obstinately refuse to receive ten times the value, and no court has authority to compel him. The case of a mere pecuniary incumbrance, a mortgage for money lent, is as different from the subsistence of a better title in another, as storm, flood, and fire are from-human agency.
    YII. Neither is a comparison to be made between this case and’ dower. Inchoate dower is not an incumbrance; for the covenant against incumbrances, it is held in Ohio, does not extend to it. It has no existence during the life of the testator. It is a mere possibility or contingent interest. It comes into existence after the husband’s death, at the same moment with the devise, and, for a period,, they co-exist. It never can, as an incumbrance or superior title,, sweep away the estate. The dower of Thompson’s widow can not by any possibility bring the premises devised to a judicial sale, but the mortgage may.
    YIII. There is' another fact in the ease which may be of importance. The testator paid the interest on this mortgage during' his lifetime, and in his will, directed that out of his personal estate his just debts should be paid. In point of fact, he regarded this-' debt as his own, dreaming little of the subtle discussions in Cumberland v. Codrington.
    IX. But even if there was no will in this case, the decision of the court of common pleas is erroneous; for the rule which distinguishes between an incumbrance imposed on the realty by the deceased, and one imposed prior to his purchase, has never been adopted in Ohio.
    It would be difficult to assign any reason for this distinction in the nature of things, in justice or policy. It never could have occurred to a legislator or jurist. No theorist in law would have-dreamed of it. It is a mere whimsicality, the consequence of an ^artificial reasoning so subtle as almost to escape the notice of the understanding.
    
      A distinction so destitute of reason must have originated, as did many rules of law, in some case of great hardship in which judges endeavored to escape from some rigid and unjust rule, the offspring of the feudal system.
    Two reasons are usually assigned for the rule in question :
    1. It is said in case of an incumbrance imposed by another, the purchaser has not made the debt his own — it is not his debt, and ■ consequently his personalty is exonerated. This reason is false; for it is decided that if the purchaser expressly promises to pay the debt, yet it remains an exclusive charge on the realty; that the fact of making a promise to pay the debt does not charge the personal assets. But does not the purchaser by such promise make 'the debt his own in every legal sense ? May he not be sued upon the promise, and his personal and real property taken in execution ? If so, how can it be said that the purchaser has not made •the debt his own?
    In all cases where the buyer takes the land subject to a mortgage, as Thompson did in the present instance, whether he covenants with his vendor or not, to pay the incumbrance, he is bound without any specific contract to indemnify him. If so, as between the vendor and purchaser, the incumbrance becomes, to most intents and purposes,’the debt of the latter. Such was the language ■ of Lord Thurlow, in Tweddell v. Tweddell, 2 Bro. 101, 152 ; Felsh v. Taylor, 13 Pick. 133; Swasey v. Little, 7 Pick. 296; Ewen v. Jones, 2 Ld. Raym. 937.
    If the court are convinced that the purchaser of an incumbered estate, in point of fact, makes the debt his own, at least to certain intents and purposes, then is not his executor bound (under section ■S3, Swan’s Stat. 353) to discharge the incumbrance as much as .any other debt of the deceased ?
    2. Another reason commonly given, is this : Where the incumbrance was placed on the land before it came into the *hands ■of the-purchaser, his personal estate is not augmented by the debt, .and therefore should not bear the charge.
    This reason is also untrue; for in many cases, if not m all, the purchaser of the incumbered estate receives the benefit of the incumbrance in the diminished amount of purchase money paid by him. He assumes the charge on the realty, and retains in his, own hands the amount of the incumbrance, instead of paying it to the -vendor. His personal estate is therefore directly augmented. ■
    
      I suppose the real cause of the difference taken between a debt, contracted by the deceased himself, and by another, is this: In. England all the lands descended to the eldest son, and the per., sonal estate was distributed equally among all the children. This rule of law arose from a disposition to cherish a landed aristocracy. No matter however great the landed estate, it descended to-* the eldest son, without being subject to the debts of the deceased; and his personalty, after paying his debts, was divided among his-offspring.
    To remedy this hardship, in later times, judges sought by this distinction to cast the burden on the heir, and relieve the remainder of the children. They attempted, as they did in many other-instances, to escape from the operation of a hard rule of feudal-, law, by an artificial distinction.
    All the English cases evince a decided struggle, on the part of" the courts, against reason and common sense, to cast the burden of' the incumbrance upon the heir, and to relieve the personal assets, for the benefit of the younger children.
    Taking this view of the origin of the rule, there might have-been cause for resorting to the distinction in England. But in this * country, where the whole estate of the deceased descends equally to all his heirs, the rule in question is not merely a senseless technicality, but it is a positive evil. It is an evil because it is an unnecessary multiplication of artificial rules of law. And it is an-evil because no testator, except a lawyer, is aware of the existence of the law, and dying in ignorance of it, he may neglect *to exonerate from the incumbrance real estate which he may have • devised, thereby doing injustice to one legatee and bequeathing-him a worthless inheritance.
    If, when the reason for a law ceases, the law ceases, then there is no cause for an enlightened court at this day, to declare that the • rule in controversy shall be in force hereafter in Ohio. Jarman (2 vol. on Wills, 563, 564, 1 Am. ed.) regrets that the rule was ever-established in England.
    
      C. N. Olds, for defendant in error, presented an argument, of' which the following is the substance:
    1. The indebtedness of the Trust Company was not an incumbrance placed on the lot by the testator, but was contracted by Hamilton nine years before Thompson purchased. It had been con-tinned, while the lot passed through the hands of two prior pur- . chasers, and it remained till Thompson’s death the debt of Hamilton, charged, however, upon this particular property. Neither ' Thompson nor any one else had ever agreed with Hamilton to pay this indebtedness for him. All the purchasers subsequent to Hamilton had ever done to connect themselves with the debt, was to receive the lot with the knowledge that it was subject to, and charged with, this incumbrance, and to keep the incumbrance to its original .amount, by the payment of the semi-annual interest accruing thereon.
    Under this state of case, the rule of law, as settled by all the authorities extant, both English and American, is, that this incumbrance follows the real estate, as devised, and remains a charge upon it in the hands of the heir. 2 Jarm. on Wills, 557-559 .(marginal).
    The same principle is laid down, in a still stronger form, in Lechmere v. Charlton, 15 Ves. 197, 198 (marginal).
    In Cumberland v. Codrington, 3 Johns. Ch. 228-235, the whole question in all its bearings, is discussed, in a most elaborate and masterly manner, by Chancellor Kent. The summary of his ^decision in that case is much stronger than is required to sustain the case at bar.
    The same doctrine is adopted and approved by the Supreme Court of the United States, in McLean v. McLellan, 10 Pet. 625.
    In the examination I have given this case, I have not been able to find a single authority, either in England or America, that is in conflict with, or disturbs in any degree, the course of the decisions ■and authorities above quoted. It is an unbroken and uniform current, flowing in the same channel through the equity jurisj)rudence of ■both countries. As counsel upon the other side have equally failed to find any such conflicting authorities, I think it is safe to adopt the language of the United States Supreme Court, in 10 Peters, and say, “ there is no doctrine better established.”
    
    II. But counsel for plaintiff would escape the force of this “ well-established doctrine,” by attempting to show that Thompson, the testator, intended by his will to charge this Trust Company debt .upon his personal estate.
    There is no doubt that Thompson, by his will, might have made this debt a charge upon his personal estate. In the language of ■Chancellor Kent, he might have done so, “ by an direction in his will, or by dispositions or language equivalent to an express •direction.” But has he done so?
    This inquiry raises a question of intention, and that intention is to-be sought for in the terms of the will itself. It may appear, from what the testator has there said, or it may appear equally well from what he has not said.
    It is not claimed that there is any express direction in the will -that this debt should be paid out of his personal estate. Certainly no such direction is contained in item 1 of the will, which provides “that his just debts Shall be first paid out of his personal estate;” for the testator had never, either directly or indirectly, made this •debt his own. The Trust Company could not sue him for it. They had no claim whatever upon him personally. Their right •of action was upon the bond and mortgage of Hamilton. If *he (Hamilton) failed to pay the bond, when called on for payment, they could then assert their claim, through the mortgagee, against the lot, but not against Thompson.
    Is there any other direction to pay this debt contained in any other item of the will? Certainly not. The fact is, in the entire will, from the beginning to the end of it, not a single allusion is made to this Trust Company debt, in any form whatever. Is there .any reason for this silence ? Can the intention of the testator be found in what he has not said? I think it can, and that very -clearly.
    This mortgage to the Trust Company had rested upon that lot, at the time of Thompson’s death, for more than fifteen years. It had been on the lot, in the hands of three different owners, for nine years before he purchased it. He bought subject to this incumbrance. He knew very well that the deed from Green to himself .gave him title only to such interest in this lot as might remain after the prior incumbrance to the Trust Company wus satisfied. The only estate he took by his deed was the equity of redemption. He held this title voluntarily for six years. He could at any time have ■paid off the mortgage, and secured the absolute title in fee to him-self; but he preferred to hold it otherwise, as the two owners before him had done. He found it to his advantage, doubtless, not to pay off the incumbrance, as he had the possession and enjoyment of the entire property, by the payment of the interest only on a large portion of the purchase money. And when he made his will, and gave Hu's lot to his daughter, he devised to her exactly what he had purchased for himself, and what he had chosen to hold for six years, — - that was, this equity of redemption, and nothing more. It was all the interest in that lot he could give, for it was all he ever possessed. He might have directed his executor to biry the fee-simple for her-by paying off the mortgage, but he did not. He might have lifted the mortgage himself after the devise was made, for his will bears date almost two years before his death; but he did not. *The fact that his will is utterly silent as to this incumbrance is, under all the circumstances, a most significant fact. This very silence declares his intention, clear as any language could have' expressed it. If it had been his intention to give this lot to his daughter, clear of the incumbrance upon it, there was an obvious necessity for him to say so; but if he intended to give her exactly what he had himself possessed, there was no allusion to the mortgage required, and his-will should have been worded exactly as it is.
    III. Counsel for plaintiff assume; erroneously, that this incumbrance had to be extinguished by some person. On the contrary, there was no.one asking for its extinguishment. It had been due for the last fourteen years, and yet the Trust Company had not demanded its payment. It was expressly understood, when the debt was created, that it was not to be paid at maturity. These Trust Company mortgages, as a matter of public notoriety, differ widely from an ordinary mortgage debt. The 'Toan and incumbrance assume more of the character of a perpetuity than any other form of indebtedness in Ohio. The object of the company is to secure a permanent- investment of its capital, and its interest is promoted by a continuance of the incumbrance as long as possible. The owner of the land also finds it equally to his advantage to let the incumbrance remain upon it; for, while he paid only for the equity of redemption (that is, for the residuum after the mortgage had been deducted), he has the actual possession and enjoyment of the entire property, and this possession and enjoyment fully compensate him for the payment of the interest accruing on the mortgage. This matter Thompson well understood, for he had practiced upon it for six years; and the fact that he must have understood it, gives character to this devise in the form he has made it. Silence as to the incumbrance is not evidence of an oversight or omission of what he intended to say. This very silence, as I have before said, speaks forth his intention.
    *IV. But counsel for plaintiff insist, that the intention of testator is shown by the fact that he has, in his will, carved out of' this lot, as devised, four particular estates, which may be defeated if the Trust Company mortgage is not paid off by the administratrix.. To this proposition, I may reply—
    1. If the testator had so little knowledge-of legal technicalities-that he “ never dreamed of the subtle discussions in Cumberland and Codrington,” how could he have ever apprehended all the nice technicalities which counsel throw around these four particular estates ? ¥e are now seeking for the intention of the testator; and I venture to assert that he had never heard so much as the names of these four particular estates in all his lifetime; and if they had been named in his hearing, he could not have understood their meaning- and legal attributes. It is idle, therefore, to suppose that he intended to protect estates of whose existence and attributes he had never dreamed.
    2. Again, why must these estates be defeated, if the Trust Company mortgage is not paid off? Can they not exist together ? Is-this incumbrance inconsistent with the life estate of Lucinda Hall, which she receives by the will, or with the other three estates therein created? Are not the possession and enjoyment of the entire property for life a sufficient inducement for her to pay the annual interest on the Trust Company debt ? It was inducement enough to her father, why not to her ? If the Trust Company could, as counsel for plaintiff suggests, force a sale of the premises in case the interest was not paid, and thereby pass the title in fee simple to a stranger, it only shows a still stronger inducement to the devisees to keep-this incumbrance under their own control.
    3. But, again, the estate in this lot, which the testator received by his conveyance from G-reen, -was, in his estimation, a valuable estate. Ho estimated this equity of redemption, at the time of his purchase, at $450. The increased value which he had afterward' added to it, by buildings and other improvements, *does not appear in the agreed statement of facts; but it does ajipear that he desired to keep this property in his family, and its increased and increasing value may be safely inferred. His daughter, then, takes-by the devise a valuable estate for life — valuable in spite of the incumbrance; the residuum, after the mortgage should be paid off by h :‘-r, would be a worthy gift for a father to bestow and a daughter to receive. The devise, then, can not be defeated, even were she-compelled to pay this mortgage.
    The same reasoning applies with equal force to the other three-•estates; and more especially when we remember that all these estates .are to be enjoyed in the testator’s own family, among his children .and grandchildren.
    4. But still, again, an examination of item 5 of the will shows ■that this devise of lot Ho. 147, is coupled with a devise of'200 acres •of land to the same party. The lot and the land together constitute the devise. It is an entire thing. They are together in the mind of the testator, and they descend together: The four estates, named by counsel, are carved out of the lot and land together, as one thing. Suppose, then, the title to the lot should fail entirely, or that the incumbrance to the Trust Company should consume it wholly, does that defeat the devise? Does not the land remain, and •does not the devise operate upon it ? How, then, can it be said that the extinguishment of the mortgage by the heir will be repugnant to the terms of the will and defeat the devise ? It might as well be claimed that if the title to ten acres of the two hundred should fail in the hands of the devisee, therefore the whole devise must be defeated.
    5. But there is a more general reply to this proposition.
    It will not do for an executor or administrator to infer an intention •of the testator, that he should pay out money of the estate, in all ■cases where a devise might otherwise be defeated. There may be an outstanding title in a stranger, by which a devise may be wholly defeated, and yet the administrator can not buy in *that -title to protect devised premises. The life estate of Lucinda Hall in these premises might be forfeited and wholly lost to her, under ■our statute (Swan, 935), by the non-payment of taxes; but the .administratrix could not pay these taxes out of the personal estate, to prevent this devise to her from being thus defeated. The devise ■may fail, or be defeated, in a variety of ways; but the administrator has no right to interfere, unless the intention of the testator to that ■effect appears by “ an express direction, or by dispositions or language ■equivalent to an express direction." In other words, the intention of the testator must be so apparent, that it is in reality a command to his administrator to do as the testator has willed. The administrator 'can create no new liabilities for the estate he represents; he can assume no new obligations. The rights of all parties concerned are ■settled and fixed by the will and the death of the testator. The administrator holds a trust, to be administered impartially, for all ■concerned. Hé stands between the creditors and the heirs, responsible alike to both. The rights of those entitled to the personal estate are as much under his protection as are the rights of devisees of the real estate. The law knows no favorites; and the administrator is a mere creature of the law, to do its bidding.
    
      
      The ablest case will be found in 3 Johns. Cas. 229, Cumberland o. Codrington, in which Chancellor Kent has cited and discussed all the cases.
    
   Thurman, C. J.

It seems to be a well-settled principle, that the purchaser of an incumbered estate, if he agree to take it subject to the incumbrance, and an abatement is made in the price on that .account, is bound to indemnify his grantor against the incumbrance, whether he expressly promise to do so or not — a promise to that effect being implied from the nature of the transaction. Tweddell v. Tweddell, 2 Bro. C. 154, margin; Woods v. Hungerford, 3 Ves. Jr. (Sumner’s ed.) 132, margin; Waring v. Ward, 7 Ves. Jr. (Sumner’s ed.) 337, margin ; Earl of Oxford v. Lady Rodney, 14 Ves. Jr. (Sumner’s ed.) 423, margin.

In the case before us, the agreed statement of facts is somewhat ^defective in not expressly showing whether there was an abatement in the price, on account of the mortgage to the Trust ■Company, upon the sales from Hamilton, the mortgagor, to Franklin, and from Franklin to Creen; nevertheless, we think that this ought to be presumed from the admitted facts, that both conveyances were expressly subject to the mortgage, and that Creen, in selling to Thompson, deducted the amount of the mortgage debt from the value of the lot, and made his conveyance expressly subject to the incumbrance. It is difficult to see why he made this abatement, unless he was bound to indemnify Franklin, or how he could be thus bound if the latter was under no obligation to indemnify Hamilton. For if there was no such liability, then Hamilton —not only as between himself and the Trust Company, but also as between himself and those claiming under him — was bound to pay the mortgage debt; and if he was able to do so — and there is no showing, in the case, to the contrary — the value of Creen’s estate was the full value of the lot; and it is not to be presumed that he would take less for it; much less, that he would abate over two-thirds of it.

Indeed, these conclusions are not gainsaid by the defendants’ counsel, for he does not deny the liability of either Franklin or Green; and the scope of his argument seems to admit it. Without laying any stress, however, upon this fact, we think their liability ought to be presumed for the reasons already stated.

That Thompson became bound to indemnify Green is sufficiently obvious, and as Green was under a like obligation to Franklin, and the latter under a similar liability to Hamilton, the mortgagor, it follows that the only just method by which Thompson could perform his duty, was to discharge the mortgage debt. For although, as between the Trust Company and these several parties, it was-Hamilton’s debt; yet, as between Hamilton, Franklin, Green, and Thompson, it was, equitably, Thompson’s debt. And so he treated' it, for he paid the interest on it to the Trust Company, from the date of his purchase to the time of his death; and *it does-not appear that he ever asserted a claim against any one for reimbursement.

In the meantime he made his will, by which he directed his just debts to be paid out of his personal estate, and devised this lot tolos daughter Lucinda, then sole and unmarried, for her life, with remainder in fee to her children, should she die leaving any; but if she should leave none, then to his other children, and the survivors and survivor of them, for life ; and the remainder in fee to his grandchildren.

Upon this will — in the light afforded by the circumstances under which it was made and the subjects to which it relates — we are to-decide, whether the testator designed to provide that the mortgage debt aforesaid should be paid out of his personal estate. And wears unanimously of the opinion that he did, and that he employed-adequate terms to effect his intention. He expressly directed his-just debts to be paid out of his personal estate ; and although it may be true that, technically speaking, this was not his debt, yet. this is by no means decisive of the question. The terms of a will are not, of necessity, to be construed technically and with a strict reference to grammatical accuracy; but they are to be viewed sensibly and liberally, in order to give effect to the testator’s intentions. Of all the instruments that need the benefit of a liberal construction — a construction that prefers substance to mere form— wills need it the most.

Now we have seen that, substantially, this was Thompson’s-debt; that, justly and equitably, it was his, and that he must have so regarded it. What is more natural, then, than that he should call it, what he believed it to be, his debt, and that he should suppose it to be included in a direction to pay his debts ? That he did so suppose, we entertain no serious doubt. Not only for the-¡reasons already given do we think so, but these reasons are greatly .strengthened by the other provisions of the will. The testator knew that the Trust Company could demand payment whenever .it chose to do so, and that, if payment should not be *made, the mortgage would be foreclosed and his devisees lose the estate. And although he might not have anticipated a speedy demand, yet he surely could not have presumed that it would be deferred until Bucinda’s death, and the enjoyment of the estate by her children, should she leave any; much less could he have supposed that it would be delayed until the fee should vest in his grandchildren, .should that event occur. And yet, by his various devises, he manifested the strongest possible wish that the property should remain .in his family — giving to none of his own children, in any event, more than a life estate, and limiting the fee to some, or all, of his grandchildren. This intention, so clearly exhibited and so well effectuated by various provisions, is wholly inconsistent with the idea that he meant that his devisees should have nothing but the ■equity of redemption. And besides, had that been his design, it is altogether probable that he would have said, in express terms, that they were to take subject to the mortgage. He had so taken, ■with a clause to that effect in his deed, and he would very likely have inserted a similar clause in drafting his devise; for it will hardly be imagined that he omitted to do so because he supposed it unnecessary. We have no reason to think that he was at all versed in the subtle distinctions and recondite learning that appear in the arguments before us, and that it was owing to his legal lore and sound judgment that he omitted what would have made his intention perfectly manifest. We can well enough understand how he could call that his debt, which -he regarded as such, and which was so in reality, though not technically, and, therefore, why it is that we do not find it specially provided in the will that his executors should pay it; but that he omitted to say that his devisees should take the lot, cum onere, because he knew that the .law would cast the burden on them if he did not expressly shift it, is what we do not believe.

We have seen that it was the intention of the testator to keep the property in his family, and that he could not reasonably .expect that the collection of the mortgage debt would be deferred *until the remainder-men should come into possession. It ¿follows, that if he designed to devise the estate, cum onere, he expected the incumbrance to be removed by his daughter Lucinda ;, for he could not suppose that it would be removed by those to whom he had contingently devised a mere estate for life. But is it reasonable to believe that he expected her to discharge it? It amounted to over two-thirds of the value of the lot, and required a considerable sum of money to pay it off, and she was to have but a life estate. To discharge it would be to pay more than the life' estate would be worth, and the devise to her would be an injury instead of a benefit. At least this is the presumption arising upon the agreed statement of facts, and that is all we can look at. But a will is not to be so construed as to destroy all benefit from a devise, if it can consistently be avoided. “ As to wills,” said Chancellor Kent (in Cumberland v. Codrington, 3 Johns. Ch. 372), “the result of the cases seems to be, that the testator may, by express directions, charge such incumbrance upon his personal assets; or, even without express words, he may do it by dispositions and language that are tantamount; as if, for instance, the continuance of the charge primarily on the land, would be repugnant to some of' the provisions of the will, and defeat them.”

I have so far considered the case upon the assumption that Thompson did not expressly promise Green to pay the debt, that view of the case being the most favorable one for the defendant in error. If he did make such a promise, it was upon a sufficient consideration, and an action of assumpsit could have been maintained upon, it by the Trust Company — it being well settled, “that if one person makes a promise to another, for the benefit of a third person, that third person may maintain an action at law on that promise.” Cumberland v. Codrington, 3 Johns. Ch. 254, and cases there cited; Crumbaugh v. Kugler, 3 Ohio St. 549. And if such were the case, there could be no doubt that Thompson was a debtor for the money, and that his liability was .covered by the clause in his will directing; his debts to be paid. But it *is, to say the least of it, doubtful whether the agreed statement of facts would warrant us in finding that such an express promise was made, and we prefer to place oui* decision on the other view of the case, with which we are entirely satisfied.

The judgment of the common pleas must be reversed.  