
    
      John Jenkins and others, Executors of William M. Clark, deceased, vs. John Hanahan and Elizabeth Mary, his wife, and Martha Mary Murray Clark, James Joseph Clark and Elizabeth Jenkins Clark, infants.
    
    Executors are not entitled to charge their estate with the expense of an accountant to arrange their own accounts.
    Devise of a plantation, called ‘V.,’ and “so much money as,- with' the said plantation, ‘V.,’ will be equal in value to the C. T. plantation, in liéu and to stand in place of so much land,” is, as to the money, a' general, not a specific bequest. '
    Bequest of all the'slaves of which testator might die possessed, to be divided, into three parts; one given to his widow and one to each.o'f two children: genera], not specific bequests.
    where an abatement had to' be made, from bequests to children, for payment Of debts, &c., it seems that the testator’s distinctly expressed intention, to make the shares of the children equal, would overrule any technical distinction, (in liability to contribute,) between general and specific legacies, by which that equality would be disturbed.
    Heard by Harper, Ch., at Charleston, January, 1839.
    Complainants’ testator devised, among other things, as follows: “I give, devise and bequeath all my plantation,-or tract of land, usually called “Cypress Trees,” containing about two hundred and twenty acres, unto my dear wife, Elizabeth Mary Clark, her heirs and assigns, forever. Item: I give, devise and bequeath, unto my dear daughter, Martha Mary Murray Clark, her heirs and assigns, forever, all my right, title, interest and estate in the plantation, or tract of land, commonly called “ Vinegar Hill,” that came from the estate of her grandfather, Joseph James M'urray: and, as the said plantation is, in my opinion, less valuable than the plantations, respectively, given to my wife and other children; and, as it is my wish, that, at my death, my wife and each of my children be, as nearly as possible, on an equality, in regard to property, I give, devise, and bequeath, unto my daughter, Martha Mary Murray Clark, so much money as, with the said plantation, “ Vinegar Hill,” will be equal in value to the “ Cypress” plantation, in lieu, and to stand in place of so much land, to her, and her heirs, forever. Item: I give, devise and bequeath the plantation, or tract of land, called “ Shell House,” unto my son, James Joseph Clark, his heirs and assigns, forever. Item: I give, devise and bequeath the plantation, or tract of land, called “ Mulberry Grove,” containing about two hundred and eighty acres, unto my dear daughter, Elizabeth Jenkins Clark, her heirs and assigns, forever. Item: It is, as I have already said, my desire that, at my death, my wife and children, respectively, should be, as nearly as possible, possessed of property of equal value; and, as my dear daughter, Martha Mary Murray Clark, under the'deed of her grand-father, Joseph James Murray, to her mother, then Abigail Jenkins Murray, dated 23d February, anno Domini, 1815, will be, possessed, in her own right, of as many slaves as can fall to my present dear wife and her two children, on a division among them of all the negroes that belong to me, I therefore will, order and direct, that all the negro slaves, of which I may die possessed in my own right, be divided into three equal portions, or parts; and that my negro slaves, Frank, Bob, Sarah and her children, Joe, Prince, John, Martha, Mary, Sam and Ben be included in one of these three equal parts: and I give and bequeath the one, of these three equal portions, in which the slaves designated are included, unto my dear wife, Elizabeth Mary Clark, forever, to and for her own sole and separate use,” &c„
    “Item: I will, order and direct, that the provision made by me, in this will, for my said wife, shall be in lieu and bar of dower and thirds, and all things else she can have a claim for, against my estate, real and personal. Item: I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, unto my dear wife and children, to be equally divided among them, share and share alike, to them and their heirs, forever.”
    The complainants, Executors of the deceased, stated that they had made a division of the negroes, according to the directions of the will, but that the y were advised that, in consequence of the infancy of the children, (who were all minors,) the division was invalid, unless confirmed by the sanction of the Court. They submitted, further, that “ the residue of the testator’s estate has proved entirely insufficient to satisfy all the debts and legacies, which are chargeable thereon; and complainants are advised that it will be requisite, that the legacies should proportionably abate, to satisfy the said demands. And complainants are desirous of carrying into execution the provisions of the said will, and effecting a full and final adjustment of the testator’s estate; but that questions have arisen and difficulties presented, as to the legal and proper manner of accomplishing these objects, and, more particularly, as to the payment of the testator’s debts; whether, in order to satisfy said claims, all the legatees and devisees, without exception, shall contribute in proportion to the amount of their several legacies and devises; and also, as to the difference, in value, between the “ Vinegar Hill” and “ Cypress Trees” plantations, how the same shall be ascertained and paid; and also, as to the mode of adjusting the accounts of the executors, in the administration of the estate; and whether a partition shall be made, by the authority of the 'Court, among the parties severally intitled, of the clear surplus which shall be found, after said adjustment, subject to such distribution.
    Elizabeth Mary Hanahan, one of the defendants, formerly .the wife of the testator, in her answer stated that the testator, > ¡after his intermarriage with her, had received, in her right, a number of slaves and about twenty-eight thousand dollars in money, and that the plantation, “ Shell House,” devised, by the testator, to his son, James Joseph, was her inheritance; •that the devise to her was, by the express terms of the will, in lieu of these claims and of her dower, which would have amounted, together, to more than what she had received from the estate. She therefore denied the liability of her portion .to contribute to the payment of debts, or legacies.
    The case was referred to the Master, who reported;
    1st. That the difference, in value, of the two tracts, “ Cypress Trees” and “Vinegar Hill,” was $9,046.
    
    2d. That Elizabeth Mary Hanahan was not liable to contribute for payment of debts or legacies, being, as to the devise and bequest to her, a purchaser for valuable consideration.
    3d. That the partition of the negroes ought to be confirm,ed; there being, in fact, no objection interposed by any of the parties.
    4th. That the complainants’ accounts, as executors, were regular, correct and properly vouched; except as to certain charges for the expense of dissecting and arranging the accounts, which were disallowed by the Master.
    
      To this report, the following objections were filed :
    
      (By the Complainant.) — That the charge, in the accounts, for payments made to an accountant, for arranging the accounts, ought to have been allowed.
    
      (By the infant Defendant, Martha Mary Murray Clark.) — ■
    1. That Mrs. Hanahan is improperly exempted from abatement and contribution, to pay the testator’s debts.
    2. That this defendant is not credited, in the executor’s accounts, as she ought to have been, with rent for the Vinegar Hill plantation; which was her property, under the will of her grand-father, Murray, and the produce of which has gone into the general funds of the estate; whereby she is made to contribute, out of her own property, to the payment of testator’s debts, and legacies.
    
      (By the infant Defendants, James Joseph Clark and Elizabeth Jenkins Clark.) — 1. That the Master ought to have reported,’ that the devises and bequests to those defendants are not liable to abate, or contribute to the payment of the sum assessed, as the difference in value between Cypress Trees, and Vinegar Hill.
    2. That he ought, further, to have reported the share of John Hanahan and wife, in the residuary estate of the testator, as liable to contribute, both to the payment of debts, and to the assessment in favor of the devisee of Vinegar Hill.
    After hearing the argument on the report and exceptions, his Honor pronounced the following decree :
    The Master’s report presents a full statement of this case, and of the questions made.
    With respect to the complainants’ single exception, I think the Master’s decision very well supported by his reasoning. It is sustained, also, by the decision of the Court, in Bogan vs. Logan, (1 M’C. Ch. 5,) and in Teagúe vs. Dendy, (2 Id. 213.)
    
      The first exception of the infant defendant, Martha M. M. Clark, and the second of the two infant defendants, James J. Clark and Elizabeth J. Clark, relate to the same matter. There is no doubt, on the authority of the cases referred to in the argument, that the provision made for testator’s wife, being in bar of dower, she must be regarded as a purchaser of it, for valuable consideration; and, if the residuary estate should prove insufficient for the payment of legacies, she cannot be called upon to abate with the other legatees. Burridge vs. Bradyl, (1 P. Wms. 126,) Blower vs. Morret, (2 Yes. 420,) Davenhill vs. Fletcher,) Ambl. 244,) and Loocock vs. Clarkson, (1 Desaus. 471.) This, of course, does not apply to the share ok the residue given to her. By a bequest of the residue, the testator means that which shall be left, after the payment of debts and legacies. The defendants, Hanahan and wife, are satisfied with the report. The exceptions are overruled.
    With respect to the matter of the second exception of the defendant Martha M. M. Clark, nothing appears in the report of the Master. It does not appear, that there was any shewing, before him, of the facts on which it is founded, nor any such question made: nor was there any shewing to the Court. , I cannot, therefore, regard it as involved in the cause.
    The first exception of the infant defendants, James J. Clark, and Elizabeth J. Clark, raises the question, how the legacy, or devise, to Martha M. M. Clark, of so much money as will make up the difference in value between the Vinegar Hill plantation, and the Cypress Trees, is to be made up. There is no exception to the assessment reported by the Commissioner: but it is apprehended that, after the payment of debts, there will not remain enough, of the residue, for the purpose; out of which fund, no doubt, the testator contemplated that it would be paid. Besides the provision for the wife, and some trifling specific legacies in the codicil, there remains only the land and stock, devised to the testator’s children, and the slaves given to the two younger children. The general rules on the subject are well known, that 'general, or pecuniary legacies must abate, rather than specific ones, and specific legacies of personalty, rather than devises of land. Questions might, perhaps, be made, whether the devise to Martha M. M. Clark is not to be regarded as a devise of land, privileged from abatement; of whether it is not a pecuniary legacy, which must fail, if there is not enough of the residue to pay it; and, with respect to the bequest of slaves, whether it is general, or specific. But, if the intention of the testator can be discovered, that is to govern, in preference to the artificial rules upon upon the subject. Of the intention of the testator, in the present instance, and the leading object of his will, there can be no doubt. Assuming that, by the provision made for her, by her grand-father, his daughter, Martha, is put upon an equality with his other children, in fespect to slave property, (and with the correctness of his estimates, we have nothing to do, he might make his own estimates,) his distinctly expressed object was to put them on a footing of equality, with respect to the landed provision made for them. And how is this eqality to be preserved 1 Very obviously, if there is not enough of the residue, to pay Martha the amount of the difference, in value, between the two plantations, all three of the children must abate equally. That is to say, if the whole residue should be exhausted by debts, Joseph and Elizabeth must contribute to Martha, out of their legacy of slaves, two-thirds of the amount reported by the Master. And so of any other deficiency of the residue: they must make good two-thirds o.f such deficiency.
    It is ordered and decreed, that the Master’s report be confirmed ; that the complainants proceed to administer the estate, and, out of the residue, pay to the defendant, Martha Mary Murray Clark, the amount reported by the Master, as the difference in value between the plantations, called Vinegar
    
      Hill, and Cypress Trees ; but, if the residue should not be sufficient for the purpose, that the infant defendants, James Joseph Clark and Elizabeth Jenkins Clark, pay two-thirds of such deficiency, out of the slaves bequeathed to them by the will of their father.
    The infant defendants, James Joseph Clark, and Elizabeth Jenkins Clark, appealed from so much of the foregoing decree, as directs that, in the event of the testator’s residuary estate proving insufficient to pay the sum of money assessed, as the difference in value between Vinegar. Hill, and the Cypress Trees, two-thirds of such deficiency should be paid out of the slaves bequeathed to these defendants; and they moved that the same be reversed, or modified, in that particular, on the following grounds:
    1. That the bequest of the said slaves to these defendants,
    was specific, and, therefore, not liable to abate, except for the payment of creditors. ,
    2. That the bequest to Martha Mary Murray .Clark, of the difference in value between Vinegar Hill and Cypress Trees, amounted to no more than a general pecuniary legacy; and no part of the estate, real or personal, specifically devised, or bequeathed, being expressly charged with the payment, it must either be paid out of the residuary estate, or fail altogether.
    3. That, if the pecuniary legacy to Martha Mary Murray Clark, was a charge upon any part of the estate specifically devised and bequeathed, it was equally a charge upon the whole estate; and there was nothing, in the will, to warrant the selection of that part of the personal estate, bequeathed to these defendants, to bear a greater pro portion of the charge, than the value of the part, so bequeathed, bore to the whole estate.
    4. That the decree, in the particular objected to, was contrary to the true intention of the testator, whether the same
    
      be ascertained by the rules of law, for the construction of testaments, or is inferred from a particular interpretation of his will; and was, in every respect, contrary to law and equity.'
    The complainants also appealed on the ground- stated in their exception to the report of the Master.
    The defendant, Mary M. M. Clark, also appealed, on the' grounds stated in her exceptions to the Master’s report, and on the further ground, that, in case the residue should not be sufficient to pay the amount' reported by the Master, as the difference in value, between Vinegar Hill and Cypress Trees, the defendants, James Joseph and Elizabeth J. Clark, ought to be required to pay the whole, instead of two-thirds of such deficiency, (as directed by the decree,) out of the slaves bequeathed to them, otherwise the testator’s intention to put them on a footing of equality, as to the landed provision made for them, would be defeated.
   Curia, per

Johnson, Ch.,

The Court concur, generally, in the judgment of the circuit. Further explanations, however, in relation to some of the questions raised by the appeal, are thought necessary to the’ better understanding of the views of the Court, in relation to theim

1st. With regard to the claim set up by the complainant, to be indemnified for money paid to an accountant for arranging their accounts.

On looking into the report of the Commissioner, it will be seen that the accounts referred to were not accounts kept by the testator, himself, in such a.manner as to require extraordinary skill, to adjust and arrange them; but,- by the complainants, of their administration of the estate. The necessity of employing an accountant arose, therefore, out of their own negligence, or incompetence, and they must bear the burthen of it, Teague vs. Dealy and Logan vs. Logan, are conclusive of the question.-

2dly. The Commissioner has reported the difference, between the Cypress Trees plantation, devised by the testator’s will, to Elizabeth M. Clark, and the Vinegar Hill plantation, devised to his daughter, Martha M. M., at $9,046 00, which is acquiesced in by all the parties. It is agreed, too, that the residuary estate is not sufficient to pay this sum and the debts; and two questions arise, 1st. whether the legacy to Martha M. M., of so much money as will make up the difference in value between Vinegar Hill and the Cypress Trees, must not fail for want of assets; and, 2dly. if not, whether she is not bound to abate, rateably with the other legatees, Joseph J. and Elizabeth J., to make up the difference.

The first question arises out of the assumption, in behalf of the widow and the legatees, Joseph J. and Elizabeth J., that the bequests of the testator’s negroes, to be divided between them, is a specific legacy, and the bequest of money to Martha M. M., a general legacy; and the second, out of the assumption, on the part of Martha M. M., that the bequest of money to her is specific, and that of the negroes, to the other parties, general.

The testator, by his will, devised to his wife, Elizabeth M. M., the plantation called Cypress Trees, and to his daughter, Martha M. M., all his interest and estate in a plantation called Vinegar Hill, “ that came from the estate of her grand-father, Joseph James Murray.” and then proceeds thus, “and as thesaid plantation is, in my opinion, less valuable than the plantations respectively given to my wife and other children, and as it is my wish that at my death, my wile and children be, as nearly as possible, on an equality, in regard to property, I give, devise, and bequeath to my daughter, Martha Mary Murray Clark, so much money as, with the said plantation, Vinegar Hill, will be equal in value to the Cypress Trees plantation, in lieu of, and to stand in place of so much land.” He then goes on to devise to his son, Joseph J., a plantation called Shell House, and to his daughter, Elizabeth J., another plantation, called Mulberry Grove, and then proceeds, “it is, as I have already said, my desire that, at my death, my wife and children, respectively, should be, as nearly as possible, possessed of property of equal value; and, as my dear daughter, Martha Mary Murray Clark, under the deed of her grand-father, Joseph James Murray, to her mother, then Abigail Jenkins Murray, dated 23d February, 1815, will be possessed, in her own right, of as many slaves as can fall to my dear wife and her children, on a division amongst them, of all the negroes that belong to me: I, therefore, will, order and direct, that all the negro slaves, of which I may die possessed, in my own right, be divided into three equal portions, or parts;” of which, he gives one to his widow, one to his son, Joseph J. and one to his daughter, Elizabeth J.

As observed in the Circuit Court decree, a bequest of the residue of the estate of the testator, means what is left after the payment of debts and legacies, and it follows that the funds must be exhausted before the other legacies can be called upon to abate, or contribute towards it. If that fund fails, then the deficiency must be made up from the general legacies, rateably, before resort can be had to the specific legacies. About these rules there can be no diversity of opinion. The difficulty consists in their application. In determining what legacies are specific, and what are not. Now, a specific legacy is defined, generally, to be “the bequest of a particular thing, or money, specified and distinguished from all others of the same kind, as of a horse; a piece of plate; money in a purse, &c., which would immediately vest with the assent of the executor,” (1 Roper on Leg. 149.) The terms of the definition, themselves, sufficiently import that, to render a legacy specific, the thing bequeathed must be so described as to distinguish it. from the bulk of the testator’s estate, and may be delivered in specie, as money in a particular bag, or chest, or in the hands of C., or my horse, called Castor, (Roper on Leg. 135, 150—1.) So, a bequest of all the testator’s property at B, he having property elsewhere, was held specific, Sayer vs. Sayer, (1 Vern. 688.) So, in Nesbitt vs. Murray, (5 Ves. 150—6,) where the testator gave some specific legacies, out of his estate in Jamaica, and bequeathed the rest and .residue of his estate, in the said Island of Jamaica, to trustees, •to sell and invest for certain uses, and then gave a variety of ..other legacies, Lord Alvanly held that this was a specific legacy of all testator’s property in Jamaica, and that the generality cf the terms, “ all the rest and residue of my estate,” were li,mited and controlled by the words, “in the Island of Jamaica’,’ to the property there.

Now, if the disposiiions of this will be analized, it' will be found that the bequest to Martha M. M., is an uncertain sum .of money, to be ascertained by a comparison.between the relative value of Vinegar Hill and the Cypress Trees plantations, and there is no foundation for the assumption that it is .specific. It wants the identity and certainty necessary to a .specific pecuniary legacy. The legacies of negroes to Joseph J..and Elizabeth J. are of one-third part, to each, of all the .negroes of which the testator might be possessed, at the time ,of his death; and there is nothing in this to distinguish the ne-groes bequeathed to one from those bequeathed to the other, and nothing to distinguish either from those bequeathed to the .wife. In the execution of the trusts of the will, the negroes .must be divided before the executors could assent to the legacies ; they want, therefore, all the requisites of specific legacies. If, by a literal construction of the particular terms employed in this bequest, a different conclusion might be drawn, 1 think it might be sustained on the general provisions of the will. In the construction of wills, the intention, to be collected from all its provisions, must prevail over the particular phraseology; and, on this principle, it was held, by Sir Wm. Grant, in Page vs. Leapingwill, (18 Ves. 463,) that a legacy, in terms, purporting a general legacy, was, notwithstanding, specific. Thus, A, the testator, devised certain lands to trustees, to be sold, but not for less than ¿£10,000, and, believing that they would not, under any circumstances, bring less, disposed of fractional parts of that sum for the benefit of B and others, and directed that, after those legacies were paid, the overplus should be invested in public stocks, for the benefit of C & D. The lands were sold, under a decree, for less than ¿£7000, leaving nothing after the legacies to B and others were paid; and the question was, whether C and D were entitled to any thing. Now, the term, surplus, clearly imports what was left after' paying the legacies to B and others; yet, it was argued that C and D took with B and others, in the same proportion that they would have done, if the land had brought ¿£10,000. The assumption by the testator, that the land would bring that sum, and baseing his disposition of it upon that calculation, was regarded as restraining the general import of the word, surplus, to the meaning of a certain sum remaining of an ascertained fund, after paying out of it, the other sums specifically given.

The dispositions of this will express, very clearly, that the the testator intended to make the fortunes of his wife and children as nearly equal as the existing state of things would permit, and especially, that Martha M. M., should be compensated for the deficiency in the value of Vinegar Hill, as compared with the real estate devised to his wife and other children. Over the negroes, which she derived from her grand-father, he had no control; but, assuming that they were of equal value with those which might fall to the shares of his wife and children, upon an equal partition, of all the negroes that he owned, amongst them, he evidently regarded them as standing upon a footing of equality, with regard to that species of property; and the bequest of money to Martha M. M., was evidently based in the supposition that his residuary estate wás sufficient to pay his debts and this legacy. If this must fail for want of assets, a leading object, (the equalization of their real estate,) will be defeated, and will necessarily produce an inequality against which he obviously intended to guard. If the deficiency is to be supplied from the legacies of negroes to Joseph J. and Elizabeth J., a like inequality results. If, therefore, we take the rule that general legacies must abate, rateably, to pay pecuniary legacies, or if the intention of the testator, collected from all the provisions of the will, prevails; it follows that the pecuniary legacy to Martha M. M. and the legacies of negroes to Joseph J. and Elizabeth J. must contribute rateably, to make up, to Martha M. M., the difference in value between Vinegar Hill and the Cypress Trees.

Peronneau, for Complainants; King Sf Walker, for Defendants, Hanahan et ux; Finley, for Defendant M. M. M. Clark; Bailey 3f Brewster, for Defendants, J. J. and E. J. Clark.

The appeal is therefore dismissed and the decree of the Circuit Court is affirmed.

Harper and Dunicin, Ch., concurred.  