
    EDWARD GRAHAM & AL. vs. GEORGE LITTLE & AL.
    Where a testator directed that his executors should sell any part of his rea! estate whenever they may think proper to do so “ without any order or decree of the Court.” Held that this real estate, not being charged with the payment of debts nor being directed tobe applied in that way, it could not be so subjected, in exoneration of the personal estate, but could only be resorted to, after the exhaustion of the personal estate, for the purpose of discharging the debts.
    The case of Robards v. Wortham, 2. Dev. Eq. 103 cited and approved.
    Cause removed from the Court of Equity of Wake County, at the Fall Term 1848.
    William P. Little made his will on the 2nd of March 1327 and therein made the following disposition: “In the first place, I give to my wife Ann, all the negroes which came by her and all their I>ast as well as future increase. Secondly, I lend to my wife during her natural life all the residue of my estate, real and personal. Thirdly, at the death of my wife I give to all my children, who may be then living, an equal part of the residue of my estate, both real and personal; and in case any of them should die previously, leaving issue, I wish said issue to have the portion which their parent would have drawn, if living : due regard being had to such as may have received any advances either from me or their mother at anytime previous to her death out of my estate. I appoint my wife Ann and my sons, Thomas P. Little and George Little, in all of whom I have the most unlimited confidence, my executrix and executors ; and they are hereby vested with full power to sell any part of my estate, either real or personal, whenever they may think proper to do so, without any order or decree of any Court. Lastly, it is my will and desire, that if any of my children die without issue or under age. in either case their portion to go to my surviving children, and to the issue of such as may have died leaving issue in the same proportion their parent would draw if living.”
    The testator died in the Spring of 1829, and in August following, the will was proved and Mrs. Little arid Thomas P. Little qualified as executors. The testator left seven children, of whom one was Minerva, who intermarried with Hamilton C. Graham and had issue three children, and then both she and her husband died in the life time of Mrs. Little, leaving their said children surviving, who are infants and are the plaintiffs in this suit. In 1845 Mrs. Little died, having made her will and appointed her son Thomas P. the executor, and he proved the will.
    The bill was filed in September 1847 against Thomas P. Little, George Little, and the other children of the testator, William P. Little, and states, that the testator left a large personal and real estate, and that the latter consisted of land in this State and Tennessee and elsewhere.; and that the executors sold large quantities of valuable land and appropriated the proceeds to their own use or misapplied them in the payment of debts of the testator, as they say, instead of his discharging the debts out of the personal estate, as they should have done. The prayer is for a discovery of the personal and real estates and especially of such parts of the latter as were sold, and an account of the proceeds and also of the residue of the personalty, and that the plaintiffs may be declared to be entitled, as representing their mother, to one seventh part of the residue of the personalty after the payment of the debts and the charges of administration and the like share of the prices of the land sold and the profits thereof and that the same be decreed to be paid to them, and also that partition be made of the land remaining unsold, so that one seventh part thereof in value should be allotted to the plaintiffs.
    The answers of the executors state, that the testator was largely indebted when he died, and also when he made his will, and have annexed to them an account of debts and charges paid to an amount exceeding $25,000 : that there were about GO or 70 slaves, and that a considerable number of them were sold for the purpose of raising money to be applied to the discharge of the debts* and that it would have required all of them, or nearly all of them, including those bequeathed specially and absolutely to Mrs. Little, to satisfy all the debts: and that, under those circumstances, it was thought most proper to sell such parts of the land as were unproductive and thus save some of the slaves (which were productive and increasing) by applying such parts of the proceeds of the land, as were requisite for that purpose, to the discharge of the debts. The answers state, that the testator left 21,700 acres of land, consisting of various tracts, of which a schedule is annexed, and that,.thereof, particular parts, mentioned in a schedule, had at different times been sold for the aggregate amount of $23,890 54; and they insist, that the same was under the will subject to the payment of the testator’s debts in exoneration of the specific legacy to Mrs. Little, or at all events that it was so subject to the discretion of the executors. The answers also state certain advancements made to the children respectively.
    
      W. H. Haywood, for the plaintiffs.
    
      J. H. Bryan, for the defendants.
   Ruffin. C. J.

The plaintiffs are entitled to partition of the unsold land specifically, or that it should be sold by the executors or under the direction of the Court, for that purpose, as may be for the interest of the parties. There must also be the usual order for an enquiry, as to the debts and administration of the personal estate; and a further enquiry as to the land sold by the executors and its produce, and how the same has been disposed of or invested and the interest thereon or profits made since the death of Mrs. Little, the tenant for life. Those are orders so much of source, as to call for no observations in themselves. But the parties, entertaining different views respecting the duty or power of the executors to apply the proceeds of the real estate to the debts, have asked a declaration of the opinion of the Court on that point as a guide to the master.

It is highly probable, that the rule of law requires a decision of the question made, that is opposed to the intention of the testator — not that expressed, but that entertained by him. From the amount of the debts, which now appear, it is natural to suppose the testator must have expected it would be necessary to sell a considerable portion of the estate, of son)® kind; and from the value of the slaves compared with the debts, the necessities of his wife and family, and the direction for the sale of any parts of his estate at the discretion of the executors, one conjectures with some confidence, that the testator would prefer, and probably thought he had provided, that the executors should or might sell land for the payment of his debts — especially as the only absolute immediate-gift'was to Mrs. Little, to whom the whole estate was given for life, and who was mother of all the children, and, as he supposed, would care equally for them. But one can only make conjectures upon those subjects, founded on what most men would be supposed to have intended under such circumstances, for there is nothing in the will to say, that the testator had such intention. He does not mention that ho owed a single dollar, much less direct the payment of debts out of any particular fund. Consequently the debts must be paid by the personal and real estates, in the order prescribed by law ; that is, by the persona] estate as the primary fund, and by the realty for the deficiency. It is true, the land is devised in mass, with the residue of the personalty. But that does not alter the rule of law. For, every devise is specific ; and the case is the same, as if the testator had, in one clause, devised all his land to his wife for life and then to his children, and in a subsequent clause bequeathed the ;residue of his personalty; in which case, the residue would be applicable to the debts in the first place, and then specific legacies, and, lastly, the land would make up the deficiency. It was stated in Robards v. Wortham, 2 Dev. Eq. 103, as the result of the cases, that, even when the land is devised to the heir, he holds, as devisee, exempt from debts, until all the pei’sonalty is exhausted, un. less the devise be to sell for payment of debts or there be a charge of debts on the land, in such terms as to exonerate the personalty or a part of it and place the land in .front. There is nothing of that kind here ; and, therefore, though the executors might sell land, they could not apply the money to the debts, to the prejudice of the devisees. It might have made no difference to the parties,' if Mrs. Little had died intestate, as the personalty saved to her by the land would have gone to those who owned the land and in the same proportions. That, however, it is said, is changed by her will; and therefore the plain* tiffs claim their share of the land itself or its produce. If it be asked, why, if the produce of the land be not applicable to the debts, the testator should have authorised a sale at all, the answer is, that he may have thought it would be best for his family and especially for his wife, that land, which was unproductive of present income, or not, in the judgment of the executors, likely to rise in value, should be sold and the money invested so as to secure to the several devisees the same benefit they had in the land ; that is, the interest to accrue to the wife for life and the capital to go over upon her death to the children. For the effect of a devise to one for life, with re* mainder in fee, with power to the tenant for life, alone or with others, to sell, but without any disposition of the money, must be, that the money goes, in place of the land, to those who would have had the land itself and in the same proportions and extent of interest. Therefore,- it must be declared, that the land given in the will was not charged with the payment of any part of the testator’s debts in exoneration of his personal estate, and that the produce of the land sold by the executors was not applicable by them to the debts.

Per Curiam.

Declared accordingly.  