
    
      Charles Cotesworth Pinckney and others, executors of Thomas Pinckney, vs. Eliza Pinckney, Benjamin Huger and his wife, Celestine, and others.
    
    Testator devised a plantation and the slaves thereon, m trust, and gave to his wife “the use of the mansion house and furniture, and the usual family accommodations” at the plantation, “during the continuance of the trust estate.” Held, that while residing on the plantation, she, the wife, would he entitled, as in the life time of the testator, for herself, her servants and horses, to the use of whatever supplies the plantation afforded, and was usually consumed by the family.
    Where a party on his marriage, consented to a settlement of his wife’s property, and afterwards made a voluntary settlement of property on her, including in it a considerable portion of the property embraced in the first settlement — held, that the last was no satisfaction of the first deed, andt that the wife, after the husband’s death, was not bound to elect between them, it not appearing on the face of the last deed, that it was intended as a substitute for the first.
    The doctrine of satisfaction applies, it seems, only to executory, and not to executed contracts.
    
      Where a party is put to his election, whether to take under or against an instrument, he is not bound to elect, until all the circumstances necessary to enable him to make a deliberate and discriminating choice, are ascertained ; and, it seems, if he make an election without it, he is not bound by it.
    Where a testator disposed of, by his will, a considerable estate, leaving, however, some residuary property, and provided that his debts should be paid from the income of a certain plantation and slaves ; held, that it was inadmissible to receive evidence of the amount of the debts, as compared with th'e fund provided for paying them and with the undisposed of property, in order to shew that the testator must have intended that the residuary property should be first applied towards paying the debts, and that the fund specially provided for satisfying them, should only be used in case the residuary property should be insufficient for that purpose.
    Where a testator provides that his debts and legacies shall be satisfied out of particular property, or a particular fund,' such property or fund, even though it be real estate, or the income derived from real estate, must be first used for that purpose, even in exoneration of residuary Or intestate personal property.
    The order in which assets, real and personal, are to be administered in this State, as laid down in' Warley vs. Warley, Bail. Eq. 397, approved of by the court.
    
      Before Johnson, Ch, at Charleston,
    June, 1844.
    
      The Chancellor. On the 27th December,-1803, the late Thomas Pinckney, the complainants’ testator, and the defendant, Eliza Pinckney, his widow, then Eliza Izard, before and in contemplation of their marriage, entered into a marriage contract, wherein it is recited, that upon the treaty of the said intended marriage, it had been agreed, that all the real and personal estates of the said Eliza, should be conveyed and settled to certain uses thereinafter to be expressed and declared; and, in pursuance thereof, the said Eliza conveyed to Ralph Stead Izard and William Lowndes, (the trustees of the settlement,) certain real and personal estates, whereof she was then seized and possessed, consisting of two plantations, one called Cow Savannah, and the other Fair Spring, and about thirty slaves, described by their names and families, in trust: 1st. For the use of the intended husband during the joint lives of himself and his intended wife. 2d. In the event of the death of the said intended husband, leaving the intended wife without issue, then to her use in fee simple. 3d. In the event of his dying, leaving issue of the marriage, and she surviving, then to her use for life, and after her death, to her issue, whether of that or any subsequent mar-* riage. 4th. In the event of the said intended husband surviving the intended wife, having issue of the intended marriage, then to his use for life, and upon his death, remainder to' the issue in fee; but if he. survived the issue, then to his use in fee. 5th. In the event of his surviving her without having issue of the marriage, then he was to take one half the estates in fee, and the other moity to such person or persons as she might by writing appoint; and in default of such appointment, then to him in fee. The deed confers on the trustees the power, with the consent of the parties in writing, to' sell and dispose of the whole, or any part of the estates, and to put the proceeds out at interest, or to reinvest them in other property, subject to the same uses.
    The marriage was shortly after had and solemnized, and the testator made another deed, dated 11th May, 1813, which purports to have been entered into by himself on the one part, and Ralph Stead Izard and Stephen Bull, of the other part,. for and jn behalf of Eliza Pinckney, the testator’s wife,- wherein it is recited that the said testator, since his intermarriage with his said wife, by the death of her father Ralph Izard, Esq., had received in her right a distributive share of his estate, real and personal, of considerable value, and that in consideration thereof, he was desirous of providing a better support and maintenance for his said wife, and her present and future issue. By this deed, the testator goes on to convey to the said Ralph Stead Izard and Stephen Bull, a plantation lying on Santee river, called Morelands, and eighty slaves by name, upon the following trusts : 1st. For the use' of his wife for life, and from and im-r mediately after her death, in case he shall survive her, and there shall be no child or children of the said Thomas and Eliza Pinckney living, then in trust to and for the said Thomas Pinckney in fee. 2d. If the said Thomas Pinckney “shall survive the said Elisia Pinckney, and there shall be one or more child or children of the said Thomas and Eliza Pinckney living, then in trust for the said Thomas Pinckney during the term of his natural life,” and after his death, “ in trust for the said child, if only one, his or her heirs, executors, and administrators, and if there shall be more than one, then in trust for such children, their heirs, executors, and administrators and assigns; but in giich shares and proportions as the said Eliza Pinckney shall, by testament in writing, or writing of appointment in nature of a will, which she shall have power in such case to make, direct or appoint.” 3d. If the wife survive the husband, and there shall be one or more children of the marriage living, then “ in trust for the said child if only one, if more than one child, then in trust for them, in such proportions as the said Eliza Pinck-ney shall or may by will, or any writing of appointment in nature of a will, give, direct and appoint; but if the said Eliza Pinckney shall survive the said Thomas Pinckney, and there shall be no child or children” of the marriage, living at the time of her death, then in trust for her use in fee.
    The deed then goes on to confer on the trustees power of selling and disposing of the whole or any part of the estate conveyed, the proceeds to be invested in other property, subject to the same uses and trusts, and declares that the provision for Mrs. Pinckney, made therein, was intended, and should be taken and accepted by her, in bar of her right and title to dower in the testator’s real estates.
    On the day of April, 1842, the testator made and executed his last will and testament; in the first clause he refers to the marriage settlement of May, 1813, and adds, “ as this settlement is now of force, and comprised one half of our (himself and wife) joint property, and now more than one third, according to my estimation, it stands, of course, in lieu of any bequest from me, fully recognizing, as I do, its validity, and confirming, if need be, all its provisions.” He- then goes on to give to his wife for life, his farm in Pendleton, with the household furniture, and his carriage and horses, and the Mansion House in Broad-street in Charleston, and the furniture and plate belonging to it, and Iris servant James.
    In the 2d clause of the will, he gives to the complainants, his executors, his plantation called Fairfield, in St. James’ Santee, and all the slaves thereon, of whom a list is subjoined, amounting to one hundred and twenty in number, and all the stock, interests and furniture, and every thing belonging to it, or used on the said plantation in the actual ordinary management thereof, in trust, to employ the said plantation, slaves, <fcc. in making crops, and directs' that the income therefrom shall be applied— 1st. That they (the executors) pay the expenses of the plantation. 2d. “ That they pay the debts I may leave, and the legacies bequeathed by this will.. -3d. That'they invest in some secure stock of this State or of the city of Charleston, all the income arising from the sales of the crops, not expended in the predisposition or appropriation of them as aforesaid j” and he then adds, “ and I do hereby make the following disposition of the sums of money thus invested in stock as aforesaid. It is to constitute a fund from which to pay the said plantation expenses, in the event of any failure of crops, by reason of freshes or storms, the interest accruing, first to be applied to the purpose, and if insufficient, as much of the principal as may be necessary ; but should this stock or its interest not be required, it is to be kept as an accumulating fund, reinvesting its interest, and adding thereto all surplussage of income from crops as they may arise ; and I do hereby expressly enjoin it on my said trustees, not to loan any portion of this stock or its interest, or any money arising from my estate, to any private individual whatever,” &c.
    
    In the 3d clause of the will he remarks, “ as this disposition of my said plantation called Fairfield, and the people thereon, which I designed for my eldest daughter, Celestine, has been made in pursuance of the express declaration in writing, addressed by her husband, Benjamin Huger, a Captain of Ordnance in the service of the United States, that he would never receive or accept one dollar of my property in any shape, it follows that this disposition of it is to endure during the joint lives of my said daughter and her husband; from the strong sense and determined character of the said Benjamin Huger, he would see that a bequest to his' wife would involve benefits to himself, and would lead him to treat this property as he has done the Abbe- ■ ville estate, which I offered him personally, and which he sternly refused with neglect and apparent repudiation. But if my said daughter should survive her said husband, Benjamin Huger, then I give and bequest my plantation Fairfield, and the people thereunto belonging, to said daughter Celestine, to her and her heirs forever; and I will that the trust estate hereinbefore devised and vested in my trustees, shall absolutely cease and determine on the death of the said Benjamin Huger, in the life time of my daughter, and the said trustees shall deliver all that part of the trust estate, consisting of the said plantation and ne-groes thereon, according to the subjoined list, to her immediately on the decease of her said husband, together with the crop or its value, made in the year of his death. But if the said Benjamin Huger survive his wife, my daughter, then on the decease of my said daughter Celestine, I give and bequeath the plantation Fairfield, with the negroes thereon, as aforesaid, to my brother Charles Cotesworth Pinckney, until his second son, Thomas Pinckney, shall arrive at the age of twenty-five years, and then to his said son Thomas Pinckney, and his heirs forever.”
    By the 4th clause of the will, he gives to his wife Eliza Pinckney, the use of the Mansion House, furniture, and the usual family accommodations on his Fairfield plantation, “during its continuance as a trust estate.” When that terminates, the whole estate is to follow the provisions of the preceding section, and he directs that “ its accumulations, which may arise from the sale of crops of Fairfield, and exist, at the decease of the said Benjamin Huger, or of my daughter Celestine,” be divided into two equal parts; “and I do hereby direct and enjoin it on my executors, to keep both parts invested in the public securities aforesaid, reinvesting the interest of each, so that they may increase by compound interest; and as soon as my nephew Thomas Pinck-ney, the second son of my brother Charles Cotesworth Pinck-ney, shall arrive at the age of twenty-five years, I give one part or moity o'f this fund to him and his heirs ; and as soon as my grandson, Thomas Pinckney Huger, the fourth son of my daughter Celestine, shall arrive at the age of’twenty-one years, and on the further condition, if he shall then assume and use the name of his great grandfather Thomas Pinckney, without addition of any kind, then I give and direct the other part or moity of the said fund and its accumulations, to him and his heirs. The fact of his assuming the name of Thomas Pinckney alone, to be signified by his publishing such fact in two of the daily papers of the city of Charleston, within six months after his arriving at the age of twenty-one years.” If on his coming of age, he refuse to conform to these conditions, the fund is given to the testator’s nieces, (Ann J. Harleston, wife of Edward Harleston, Esquire, and Maria Pinckney, daughter of C. C. Pinckney,) to be divided between them, share and share alike.
    The 5th clause is as follows : “ And as to the rest and residue of my estate, including any which I may hereafter (the word derive I suppose is omitted here) from the will of my father and mother, or from any other source, I will that my trustees as aforesaid, shall receive and put at interest any monies that may accrue, and that they receive the rents and profits of any real estate that I may be entitled to, and that they may employ any negroes Shat may fall to my share on my plantation, Fairfield, and that they pay over to my niece Mrs. Rebecca Rutledge, and her bus-band Edward C. Rutledge, Esquire, the amount of my bond to them from this source.” And the testator then directs that if there should be ady deficiency, it should be supplied from the trust funds in the hands of the executors.
    By the 6th clause, the testator gives to his daughter Celestine his farm in Pendleton, after the death of her mother, in fee ; but provides if she should die before the termination of the life estate, before given to the mother, or before the death of Benjamin Huger, her husband, the said farm should go to and be equally divided between his nephew Thomas Pinckney, the second son of his brother C. C. Pinckney, and his, the testator’s daughter, Rosetta Izard. In this clause he also gives to his said daughter, Rosetta Izard, after the termination of his wife’s life-estate therein, the Mansion house in Broad street, in Charleston, and the furniture, and the servant James, in fee, with a limitation over, in the event of her dying without issue surviving hei", to his brother Charles Cotesworth Pinckney, for life, remainder in fee to his son, Thomas Pinckney.
    In the 7th clause, he gives to his daughter, Rosetta Izard $1000, “ as a small testimony of the affection of her father, who leaves her this sum immediately, because it has been always understood she is to inherit her mother’s settled estate. To Mrs. Lowndes, his sister, and to his brother, he gives each $500; and to Edward Harlston, his gold watch and a painting of the "Virgin and child, by Rubens ; and to John L. North, $500.
    In the last clause, the complainants are appointed executors, and the will thus framed is signed and sealed by the testator, and attested by three witnesses. Following this, is a list of the ne-groes on the Fairfield plantation, one hundred and twenty in number, and of those on Moreland, amounting to seventy-three ; and then follows the following clause, also signed and sealed by the testator, and subscribed by the same witnesses, and was probably done at the same time as the body of the will, and intended to constitute a part of it, and was so treated at the hearing. “And I do hereby give and devise to my wife Eliza and her heirs, all such of the negro slaves named in the within list, as belonging to Moreland plantation, as were not named in the marriage settlement, referred to at the commencement of this my last will. In consideration of the great loss sustained by the sáid plantation in the year of the Cholera, her list is now made up to her. Provided, nevei'theless, that should there be a few people named origi- - nally in her settlement, and not now named in the foregoing list, or by their forming connexions with the Fairfield people, such shall remain of the Fairfield list and considered as being exchanged. The two above lists including all the people I now own, excepting ten or twelve whom I retain, and will dispose of hereafter.”
    Not long after the execution of the will, the testator sailed for Europe, and died at Havre in France, on the 7th July, 1842, leaving the defendant, Eliza Pinckney, and his daughters Celestine Huger and Rosetta Izard, both of whom have children, Thomas Pinckney, son of C. C. Pinckney," and Thomas Pinckney Huger, son of his daughter Celestine Huger, surviving him ; and the complainants state in their bill that they have proved the Will, and assumed the execution thereof. But that differences of opinion have .arisen and are entertained by the parties interested as to their various rights under the-two marriage settlements and the will, which I shall state particularly hereafter, and which they are unwilling to take the responsibility of deciding, concerning which they ask the advice and direction of the court. They state more particularly, that they are informed and believe that the real estate, described in the marriage settlement of December, 1803, has been long since sold, but that they do not know to whom the purchase money was paid, or whether it was received by the testator, or laid out in the purchase of other estates to the same uses. That the negroes named in this settlement, or some of them, are included in the deed of May 1813, and that they are advised that the last mentioned settlement was intended as a satisfaction of, or a substitute for the first, and that the defendant Eliza Pinckney, the widow, was bound to elect between them, and Celestine Huger and Rosetta Izard were bound to elect to take under these settlements or the will of the testator, and they submit whether they are bound to make the election at any and what time. They state also that the testator left considerable real and personal estates not disposed of by his will, and died considerably indebted, and they submit whether the debts are to be paid out of the un-devised personalty, and the real estate descended, or out of the fund charged with their payment by the will; and they pray that the rights of the parties may be ascertained and declared.
    The defendants have all answered ; each of them presenting some questions applicable to themselves, and it will therefore be necessary to refer to all the answers, premising that they all, without exception, admit the execution of the marriage settlement of 27th December, 1803, of the deed of the 11th May, 1813, and of the testator’s will of April 1842 ; and I shall begin with the answer of Mrs. Eliza Pinckney.
    She insists that the deed of 1813 was founded on the consideration of a large accession of fortune, which the testator derived through her on the death of her father, and was intended not as a substitute for, but an addition to the provision made for her by the deed of 1803. She arrives at this conclusion from the circumstances, that she had never heard it spoken of as a substitute ; that there is no reference in the last- to the first deed ; that the provisions and limitations of the last are different from those in the first, to an irreconcileable extent; and she admits that some of the negroes named in the first, may be included in the last, and how that happened she does not know, but insists that she is entitled to all the benefits conferred on her by both deeds and the will, considered as entirely distinct and independent of each other. But that if the court should be of opinion, and so decide, that they cannot all stand together, and she is bound co elect under which she will take, she submits that she is not bound to make the election until it shall be ascertained what shall be most for her benefit. She admits that the testator died possessed of real and-personal estate not disposed of by his will, and that he was considerably indebted at the time, but contends that the debts and pecuniary legacies are a charge upon the fund specifically set apart in the will for their payment, (the income from the Fairfield plantation) which she supposes to be ample, and that the undevised estates are distributable between herself and Celestine Huger and Rosetta Izard, and that if it should be necessary to sell any portion of the estates to meet pressing demands, they will be entitled to be reimbursed out of the income from the Fairfield estate.
    She submits also, that under the devise to her, of the testator’s “farm in Pendleton district, situate on the west side of eighteen mile creek, together with the household furniture, carriage and horses,” she is entitled to all the fixtures on the said farm which belonged to the houses and offices of the said farm, during her life. (What these fixtures are, is not stated in the answer, but I think it was stated in the argument to be a cotton gin or horse mill for grinding corn, or both.) She submits also, that, in the event of the court’s adjudging that herself and her two daughters are not entitled to the undevised estates, discharged from the payment of debts, then, under the devise to her for life of the “ Mansion house in Broad street, in the city of Charleston, with the furniture and plate belonging to it, and also my servant James,” who usually has charge of it, and of the use of the Mansion house and furniture, and the usual family accommodations, at Fairfield plantation, during its continuance as a trust estate, she is entitled to all the testator’s wines and family supplies, and the usual supply of plantation provisions or supplies while residing at Fairfield; and to show that such was the intention of the testator, she refers to a letter addressed by him to her, dated on board the Duchess D’Orleans at sea, off the banks of Newfoundland, 19th of June 1842, whilst on his voyage to France, from which he never returned, in which among other things he says, “ in the secret drawer of my secretary there is a note of Mr. W. C. Smith, and a note or bond of Mr. Holland, of Pickens district, for money lent. If any difficulty occurs in the payment of them, ask Mr. Lorton to collect them for you. My stock of wine goes to you and Ralph” (the defendant Ralph Stead Izard) “ of course, as you have a life estate in both houses ; there are a few dozen fine old wine ofPrio-leau in the wine loft;” and she adds, that when he, the testator, was about to leave Charleston on his voyage to France, he took the key of his cellar, in which his wines were kept, under his own care, and delivered it to the said Ralph Stead Izard, saying that the wine might be used by the family, then consisting of herself, the said Ralph Stead Izard and his wife Rosetta, which she insists is good as a donatio mortis causa to her, of the wines and money secured by the said notes ; and that she is entitled to the whole, or at least to one half, of the wines, or the proceeds in the hands of the complainants.
    In respect to the effect and operation of the two deeds or settlements, and the testator’s will, the defendants, Ralph Stead Izard and his wife Rosetta, rely on the same grounds as those stated in the answer of Mrs. Pinckney ; they insist too that the fund set apart by the testator, for payment of debts and legacies, which they regard as ample, is primarily liable, and that the undevised estates are distributable amongst his heirs at law, as in cases of intestacy, and that if a sale of any portion of these estates be necessary to meet these demands, they ' are entitled to be indemnified out of the income of the Fairfield plantation. But if the court should otherwise adjudge, then they submit that they and their co-defendant, Mrs. Pinckney, are entitled to the testator’s wines, under the donation in contemplation of death, referred to in the answer of Mrs. Pinckney ; and they state in addition, that, when the testator, in very bad health, was about to leave Charleston, on a voyage, from which he never returned, he took the key of his wine cellar, which was always kept by him, and presented it to the defendant Ralph Stead Izard, telling him, in substance, to use the wine there for the family, consisting then of themselves and the defendant, Mrs. Pinckney, and refer to the letter of the testator to Mrs. Pinckney, of the 19th June, 1842, as evidence of his intention.
    The dispositions of the will, in relation tp his daughter Celestine Huger and her children, and the terms in which they are expressed, manifest, too clearly, that he was, at the time, influenced by strong resentments against, perhaps, her husband only, but certainly operating on the testator’s mind to the disadvantage of both. Whatever may have been the cause of these feelings, it is a matter of deep regret that they should have found their way into the will itself, especially as they have proceeded from a man so distinguished as the testator was for intelligence and elevation of character. The will bears date but a short time before the testator sailed for Europe, avowedly in the hope that it might restore his impaired health, and he must have calculated on the possibility of his never returning; and it is matter of astonishment that, under such circumstances, he should, in the solemn act of making a last will and testament, when it might be supposed a parent would have forgotten the delinquencies of his children, if they were guilty of any, and would be influenced only by affection for a daughter, who, from the will itself, appears to have been, before that time, peculiarly the object of his solicitude and regard. Happily examples like this are of rare occurrence ¡ indeed I do not remember that any like it has fallen within my observation. The consciousness of the defendants, Benjamin Huger and his wife, that these resentments had their origin in some imaginary cause, must be a consolation to them. They state in their answer, most solemnly, that they are unconscious of any dereliction of duty or just cause of offence, given by them or either of them, to the testator, and they deplore the existence of such a state of feeling towards them, not on account of the influence they might have had on the dispositions of the will, but that they should have found their way into the breast of the testator.
    These matters have no necessary connexion with the questions of law growing out of this most extraordinary will; but as the will itself is a part of the case, and contains the charges. against the defendant, Benjamin Huger, I have thought this explanation due to him, and shall not again recur to the subject.
    These defendants, (Benjamin Huger and wife,) in their de-fence, rely on the same grounds as those taken by the defendant, Mrs. Pinckney, in relation to the effect of the two deeds and the will, and as to the appropriation of the funds set apart for the payment of debts and legacies to that object, instead of the un-devised estates, to a portion of which they claim to be entitled, and they insist that if,'the court should decide that they are not entitled to take under both the deeds and the will, and are bound to elect between them, they ought not to be called on to do so until it is ascertained which will be most for their benefit.
    These defendants state, in their answer, that the defendant, Celestine, was entitled, under a gift from her great uncle, General Charles Cotesworth Pinckney, to one-fourth part of the nett proceeds of the crops raised on a plantation in Georgia, called Steadfield, from 1812 to 1825, which, as they are informed and believe, amounted to a considerable sum, and that they were received by the testator in his life-time, and they pray an account of them.
    The answer of Thomas Pinckney, the minor, by his guardian ad litem, whose interests are opposed to the claims set up by the other defendants, admits the execution of both the deeds of 1803 and 1813, but submits that the last was intended to embrace the property contained in the first, and actually stands in lieu thereof, and relies on the following facts for the correctness of the conclusion, viz: That Cow Savannah and Fair Spring, the lands conveyed in the first deed, were of so little value that the testator did not think them worth planting, and they were sold to Mr. Timothy Ford for a small amount, long before the execution of the second deed. That the property conveyed in the second deed was of much greater value than that which he derived from his wife's fortune at the division of her father’s estate in 1813, and at a fair valuation would have covered not only this accession of fortune, but the value of the property conveyed by the first deed. That the last deed embraces twenty-four out of thirty negroes named in the first deed, and allowing for probable deaths, probably all that remained of that stock.
    He insists also that the general personal estate, not specifically devised, is the proper fund from which debts and legacies are to be paid, and that' the charge on the proceeds of the crops, made on the Fairfield plantation, for the payment of debts and legacies, is merely subsidiary.
    In relation to the claim of Benjamin Huger and wife, for an account of the proceeds of the crops of the plantation in Georgia, called Steadfield, received by the testator, this defendant states that he is informed and believes that they did not much more than pay the plantation expenses ; that considerable sums of money were paid by the testator to his said daughter, through the hands of John Yaughan, of Philadelphia, and that he had made to her an advancement of a valuable plantation and negroes in Abbeville district, which he insists must be regarded as a satisfaction of this demand.
    Being a minor, this defendant in all other matters submits himself and rights to the protection of the court.
    The questions arising out of these conflicting claims may be thus summarily stated :
    1st. Whether the deed of 1803 is to have its full effect and operation, or whether that of 1813 was intended as a substitute for it, and thus to render it inoperative.
    2d. Whether the will contains a disposition of the general residue of the testator’s estate.
    3d. If not; whether the debts and pecuniary legacies are to be paid out of funds provided in the will or the residuary estate.
    4th. Whether if it becomes necessary to provide for the payment of pressing debts, and a sale of the residuary estate should be required, the parties, entitled to it, will not be reimbursed out of the income of the Fairfield plantation.
    5th. Whether Mrs. Pinckney and Huger and wife, are, undei' the dispositions of the will and the provisions of the deed, called on to elect under which they will take, and if so, at what time and under what circumstances will they be required to make the election.
    6th. Whether Mrs. Pinckney is entitled to the use of the fixtures on the Pendleton farm for life.
    7th. Whether there is a good donation mortis causa of the wines to Mrs. Pinckney and Ralph Stead Izard, or whether Mrs. Pinckney is intitled to them as a part of the usual family supplies.
    8th. To what is Mrs. Pinckney entitled under the bequest in the 4th clause of the will, “ and as my plantation Fairfield must continue a trust estate during the life-time of the said Captain Benjamin Huger, I give the use of my mansion house and furniture, and the usual accommodations there, to my wife, Mrs. Eliza Pinckney, during its continuance as a trust estate.”
    9th. As to the rights of the defendants, Benjamin Huger and wife, for an account of the income from the Steadfield plantation in Georgia.
    1st. Mr. Justice Story, in his treatise on Equity Jurisprudence, p. 360, vol. 2, defines what is technically called satisfaction, to be the donation of a thing, with the intention expressed or implied, that it is to be an extinguishment of some existing claim or right of the donee; and whether the act done will or will not operate as a satisfaction of a pre-existing obligation, must necessarily be resolved by the intention of the donor, independent of the will or consent of the donee ; not that he is bound to accept the substitute, but when the intention of the donor is clear, he, the donee, cannot have both, but must elect between them ; when the intention is expressed, there can of course be no controversy about it, the donee must elect, and all the difficulties that have arisen about it is, in ascertaining under what circumstances the intention may be implied. From the nature of the inquiry, no rule would reach every case. The intention of an equivalent act may be manifested in such various forms, that no human foresight could anticipate and provide for every case that might occur. The cases, however, which have passed in review before the courts, serve as land-marks in the inquiry, and certain rules are deduced from them, which, for the sake of consistency and uniformity, ought not 'to be lost sight of. Thus, if one is bound.to do a particular act, and does one ejusdem generis, in the absence of all countervailing circumstances, it is usually regarded, by the court, as intended in satisfaction of his preceding obligation. (2 Story’s Eq. 360, 1.) But if the thing given is ejusdem generis with that due to the donee, the presumption, that it was intended as a satisfaction, does not necessarily arise, unless the thing substituted be equally beneficial, either in amount, or certainty, or value, or the time of enjoyment, with the thine contracted for. (2 Story’s Eq. 363; Blandy vs. Wid-more, 1 P. W. 324; Atkinson vs. Webb, 2 Yern. 478.) So when the thing given depends on a contingency, or is given with a view to some other purpose, it will not be presumed to be intended as a satisfaction of the existing obligation; as where a parent is under obligation by settlement to provide for his children, and by his will makes a provision for them inconsistent with it, or with a view different from that provided for in the settlement, it will not be regarded as intended as a satisfaction. (2 Roper on Legacies, ch. 18.)
    The question here is, whether the deed of 1813, which is reaffirmed in the will, and made a part of it, was intended by the testator as a satisfaction of the deed of 1803. No such intention can be collected from the deed or will. There is no allusion in either to the deed of 1803, and the intention must be ascertained from extrinsic circumstances. Those relied on by the defendants, Mrs. Pinckney and her daughters, are — 1st. That the deed of 1803 is professedly founded on the consideration of marriage, in pursuance of a previous agreement between the parties. 2d. That the provisions of this deed are different from and inconsistent with those of the deed of 1813. And 3d. That the consideration of the last deed is avowedly the accession of fortune derived from the estate of Mrs. Pinckney’s father. On the other hand, the defendant, Thomas Pinckney, to shew that the last deed was intended as a satisfaction of the first, relies on the circumstances, 1st. That the property settled by the deed of 1813, was equal or greater in value than all the property which he acquired by his marriage. And 2dly. That all that remained in specie of the property, included in the first deed, is embraced in the second.
    That the two deeds were founded on different considerations can admit of no question. The first on that of marriage, the best ■and most valuable. The second on the moral and good consideration of providing for a wife and children ; and it is equally clear that, although the property conveyed by the second deed is ejusdem generis with that conveyed by the first, the dispositions in them are essentially different. I will advert to one only which admits of no controversy. The first provides that “in the event of Mrs. Pinckney’s surviving” the testator, “and having issue of the intended marriage, then for the use of the intended wife during her natural life, and from and immediately after her death, then to the use of her issue if more than one, as also for any other issue which the said Eliza Izard, the intended wife, shall or may have by any future husband.” In the deed of 1813, in the event of her surviving the testator, the limitation is to the use of the child of the marriage, if but one, and .if more, then to their use in such shares and proportions as the said “Eliza Pinckney shall and may by her will, or by any writing or appointment in nature of a will, give, direct and appoint.” In the first, the issue of the marriage, and that by any subsequent marriage, are entitled to take independent of the will of Mrs. Pinckney. In the second, the issue only are to take, and if more than one, then in such portions as Mrs. Pinckney shall appoint; and it is unreasonable to suppose that the testator intended that the last should be a satisfaction of the first deed. It is impossible that he could have intended that the provisions of the last deed should be regarded as, a satisfaction of the provision made in the first for the issue that Mrs. Pinckney should have by any other marriage; and according to the rule it cannot be so regarded ; they are altogether excluded by the last deed, and no compensation is provided for them if there had been any.
    But it strikes me that the question does not necessarily enter into the case at all.' The property conveyed by the first deed never-belonged to the testator; it, was the property of his intended wife, Eliza Izard. The grant is not the act of Thomas Pinck-ney, but her’s, with the intention to provide for the issue oí the marriage. It was a subject over which he never had any control, and it will not be presumed, in the absence of any express intention, that in making the deed of 1813, he intended to impose the condition, that his wife and children should surrender their rights to the property conveyed by the deed of 1803. That is not all — according to the-definition of Mr. Justice Story, the doctrine of satisfaction applies only to the case of an existing claim or right, arid if we assume that, by the first deed, the testator disposed of any'right or property which belonged to him, it is' an executed contract, by which he parted forever with all interest which he had in the property, and vested it in trustees for the use therein expressed, arid not an existing claim or right of the -donees against the donor; and we look in vain for any principle or authority by which one, who has given an article of property to another, may resume it, without the consent of the owner,* on his giving another article of property ejusdem generis of equal or greater value.
    It is stated in the answer of the defendant, Thomas Pinckney, that the second deed includes all that remains in specie of the property conveyed by the first. The parties entitled under it can take no more than is covered by the two deeds. If all is included in the last, they can of course have nothing else. Whether it is or not, must be the subject of inquiry before the master. On principle, however, the complainants must account for any property embraced in the first deed, which the testator sold, including Cow Savannah and Fair Spring.
    
      2d. In the solution of the second question proposed, I need only refer to the 5th clause of the will. By that, the executors or trustees are directed to appropriate the residue of the testator’s estate to the payment of the bond due by him to his niece, Rebecca Rutledge, and her husband, Edward C. Rutledge, and if that should be insufficient to pay that debt, the deficiency should be supplied from the fund before set apart for the payment of debts. Now if this clause be taken in connexion with the concluding sentence, subjoined to the lists of the slaves, in which he says, “ the above lists include all the people” (negroes) “ I now own, except ten or twelve, whom I retain, and will dispose of hereafter,” it is quite clear that the testator did not intend to dispose of the corpus of the residue of his estate, and his directions to his executors, as to the payment of his bond to Rebecca Rutledge and her husband, contained in the clause under consideration, renders this conclusion irresistible. He manifestly looked to an accession of fortune from the estate of his father or mother, or both, in the form of lands, negroes, or money; and directs that if any negroes should fall to his share, they should be employed on the Fairfield plantation, and that the income to be derived from this source, the rents of the lands and the interest of the monies, should be applied to the payment of that bond. He does' not stop here, but directs that if there should be any deficiency from this source, “ the balance must be supplied from the trust fund,” (obviously the income from the Fairfield plantation) “remaining in their hands,” and gives as a reason that “ this payment will be required long before the appropriation of the trust fund.” That he intended that all his debts and legacies should be paid out of the income of his estate, and that no portion of the corpus should be sold for this purpose, is as clearly expressed in this and the other provisions of the will as if he had said in terms “my executors are hereby directed not to sell any part of my real or personal estate, devised or bequeathed, to pay my debts, or the pecuniary legacies bequeathed by this will, but must pay all from the income of my estates.” The principal, the corpus of the rest and residue of the estate, is not therefore disposed of by the will, and is distributable amongst his next of kin or heirs at law; his widow and children.
    ■ 3d. The third proposition cannot now be regarded as an open question. When a testator has set apart a fund for the payment of debts, it would seem, if we would follow the intention, which generally, and ought universally to govern in the interpretation of wills, that the fund alone was primarily liable for their payment, and must be exhausted before any other could be resorted to. In England, the policy of the. government is to sustain the landed aristocracy, and the courts, entering into the spirit of it, have resorted to the most subtle and refined distinctions, to dis-burden real estates from the payment of debts, in favor of the heir at law. But that policy is wholly inapplicable to the state of things here, where real and personal estates are equally liable for the payment of debts, and' where estates, in cases of intestacy, are equally■ distributable amongst the kindred, whether lineal or collateral; and we are left free to carry out the intention of the testator, unembarrassed by State policy. I take it, therefore, that when the testator gave to his executors his Fairfield plantation, and the slaves, <&c. belonging, in trust, amongst other things, that out of the income therefrom, “ they pay the debts I may leave, and-the legacies bequeathed by this will,” he intended precisely what he'expressed, and that that, and no other portion of his estates, should be charged with their payment.
    The cases in our own courts furnish abundant authority for this conclusion. In Hall vs. Hall, 2 McC. Ch. 303, the testator charged his estate generally, real and personal, with the payment of his debts, and after the execution of his will, acquired other real estates, and it was held that the estates charged were liable for the payment of the debts, and that the subsequently acquired real estates descended to his heirs, as in cases of intestacy. In Warley vs. Warley, 1 Bail. Eq. 404, the rules laid down are, that in the administration of assets, real and personal estates, devised for the payment of debts, or in any manner directed to be so applied, are first to be applied to the payment of debts. Secondly, personal estates not specifically bequeathed; and a bequest of the testator’s whole personal estate, or of the residue, after specific legacies out of it, is to be regarded as specific. Thirdly, descended real estates. Fourthly, personal estates specifically bequeathed. And lastly, real estates devised.
    These rules were practically carried out in Pell vs. Ball, Sp. Eq. 520, in a manner directly applicable to the case in hand. In that case, the testator directed by his will, that his debts should be paid “ from the nett proceeds arising from the sales of the crops” on his plantation, and after - providing for the payment of his debts, and a pecuniary legacy of ten thousand dollars to one of his relations out of that fund, he disposes of the subsequent crops ; and it was held, that the debts must be charged on this fund, in exoneration of descended real estates; and my brother Dunkin, who tried the cause, and whose judgment was affirmed by the court, remarks, that if the testator had bequeathed to his creditors by name, a sum sufficient to pay their debts, directing it to be paid out of the proceeds of the crops, the appropriation could not have been more perfect.
    The case in hand would clearly fall within this rule, but it does not stop here. The income of a particular residue of the estate is charged with the payment of a debt due by the testator to his niece Rebecca Rutledge, and her husband, Edward C. Rutledge ; and if that should prove insufficient, it is to be paid out of the income of the Fairfield plantation ; and it is impossi-sible to reconcile this disposition with the intention of the testator, that this fund should be charged with the payment of his other debts, and the pecuniary legacies. No phraseology could more effectually negative such an idea.
    4th. Having arrived at the conclusion, that the income from the Fairfield plantation is the fund primarily liable for the payment of debts, it follows as a necessary consequence, that if any other fund is broken in upon, the parties entitled to it have the right to be reimbursed out of it. The creditors, so to express it, have a lien upon the whole estate, real and personal, whether devised or bequeathed, or not; and it is a natural equity, that if they lay hold of another fund than that specifically charged with the payment, the party entitled to it must be reimbursed out of the fund charged. He is, in legal parlance, entitled to be subrogated to the rights of the creditor. (See Pell vs. Ball, Sp. Eq. 524-5.)
    5th. I have before shewn, that there is nothing apparent on the face of the deeds or the will, which renders them incompatible, find that they may all well stand together, and have their full operation and effect. It may be, however, that some of the negroes embraced in one or the other, or both of the deeds, are disposed of by the testator’s will with the Fairfield plantation. He seems to suppose that such might be the case, and has provided in the last clause of the will, that if any of them should be found on the list of the Fairfield people, either by mistake, or by their forming connexions with them, they should be considered as exchanged for those given to Mrs. Pinckney, as attached to the Moreland plantation ; and if it should so turn out, it presents a clear case of election ; she cannot have both, for the bequest of the negroes on the Moreland plantation, not included in the deed, is, by the will itself, put expressly upon the footing of an exchange, for those contained- in the deed, found upon the list of the Fairfield negroes.
    The term election, imports, of itself, a right to choose between one and another, or more things; and it is impossible to exercise that right understandingly, unless the party is fully informed.of their relative value, for withopt it, his judgment or will, or even his caprice, could not enter into the act of chosing. Hence, the well settled rule, that he is not bound to elect, until all the circumstances necessary to enable him to make a deliberate and discriminating choice, are ascertained; and if he even make an election without it, he is not bound by it. (2 Story’s Eq. 359— 60Í) If, therefore, any of the negroes included in either of the deeds, are otherwise disposed of by the testator’s will, Mrs. Pinck-ney is not bound to make her election until they are identified, and the relative value between them and the negroes substituted for them by the will, ascertained.
    In the event of Mrs. Huger becoming-entitled to the Fairfield plantation and negroes, on the contingency provided for in the will, she also would ■ have the right,' and be bound to elect, whether she would take under the deeds or the will, for she would not be bound by the election of Mrs. Pinckney; but according to the rule, she is not bound to do so until the contingency happens, for it is impossible now to anticipate what will be the condition of the property at that time — a circumstance in itself, clearly demonstrating the propriety and wisdom of the rule.
    6th. There can be no question that Mrs. Pinckney is entitled to the use of all the fixtures on the Pendleton farm that are attached to, and are necessary to, the full enjoyment of it in the condition it was at the death of the testator. In Fairis vs. Walker, (1 Bail. 541,) it was held that a cotton gin, attached to the freehold, passed under a conveyance of the land, and a distinction is taken between fixtures that .are put up for merely temporary purposes, the .use of which was not necessary to the enjoyment of the land itself, and such as are intended to be permanent, and are used to increase the comforts or the profits derived from the land itself; and in this respect, between a saw gin and a corn mill, there can bé no distinction ; the first is necessary to prepare the cotton crop for market, and the other to prepare food for the tenant and his - household. Indeed, it would., at this day, astonish any one, to be told that the machinery of a grist mill, propelled by water, did not pass under a grant of the land on which the house stood, and there is no difference between that and one propelled by steam or animal power.
    7th. Unless the claim of Mrs. Finckney and Ralph Izard to the wines, under the supposed gift caxisa mortis, should be sustained, it follows that they belong to and constitute a part of the residium of the estate, and must be disposed of with it. In that event, Mrs. Pinckney, and Izard and wife, and Huger and wife, would only be interested in the question, and their counsel has withdrawn the question raised, and I shall not, therefore, consider it.
    8th. It is not very clear what the testator meant, when, in the 4th clause of his will, he bequeaths to his wife, in addition to the Mansion House and furniture at Fairfield, “ the usual accommodations there.” The bequest of the use of the Mansion House and furniture is direct, and when he added “ the usual accommodations there,” he must have intended something more, and what these accommodations are, is the question. In general) the term accommodations embraces every thing necessary to comfort, but the interposition of the word “ there” seems to give it a locality, and I should infer from it, that he intended to give the usual supplies which a family derives from the produce of the plantation itself, in the form of provisions for the family, the servants, horses, (fee., suited to their fortune and condition.
    9th. The fact that Gen. Charles Cotesworth Pinckney, the grand uncle of the defendant, Celestine Huger, gave to her the one fourth part of the income of the Steadfield plantation in Georgia, and that the testator received them on her account, from the year 1812 to 1825, is not controverted in the answer of the defendant, Thomas Pinckney, jr., by his next friend, but it is stated and insisted, that considerable sums of money were paid to the said Celestine from time to time by the testator, which were intended by him as a satisfaction of this demand, and in addition to this, the testator had made an advancement to his said daughter, Celestine Huger, of a valuable plantation and ne-groes in Abbeville district, which it is insisted, was intended as a satisfaction of this demand.
    That the defendants, Benjamin Huger and wife, are entitled to an account of the sums received by the testator, on account of the income of this plantation, and that the testator will be entitled to be credited with any sums paid her on that account, (I mean expressly) there can be no question. But whether the provision represented to have been made for her, as represented in the answer, of the plantation and negroes in Abbeville, was intended as a satisfaction of this demand, (if, in fact, any such provision was made,) must be subject of inquiry before the master.
    The parties will be at liberty to move for all the orders necessary to carry this judgement into effect.
    From this decree some of the parties appealed, and it was now moved that the same be modified.
   Curia, per Johnston, Ch.

In determining this cause the court has attended, rather to the points made in the argument, than to the grounds of appeal; which were widely departed from, and much extended, in the remarks of counsel.

We- are satisfied that the Chancellor has given a fair construction to that part of the will, in which the testator gives to his wife “the use of his mansion house'and furniture and the usual family accommodations,” at Fairfield, “ during the continuance of the trust estate.” No reference was necessary to ascertain" that the 'testator intended that, when Mrs. Pinckney might choose to visit, or reside, at Fairfield, she should' be entitled, for herself,- her servants and horses, to the use of the supplies which she might find on the place. Not, as apprehended by counsel, that the executors should be under the necessity of purchasing for her special accommodation, articles not on hand at the time, or-not produced on the plantation ; but that she should have the right, as in the life-time of her husband, to enjoy whatever the plantation afforded, and was usually consumed by the family. No precise direction can be given by the. court. Nor can more be done than to lay down the general rule ; and, in case of contest about its application, to apply it according to the particular circumstances which may then exist. If a contest should arise, I apprehend that evidence may be received upon the point, whether the accommodations claimed are such as the family usually enjoyed. But the admissibility of such evidence need not be decided now: and the question is reserved.

The next point relates to the property covered by the two deeds .of 1803; and 1813. It has been argued that an inquiry should have been made, to ascertain how far the latter embraces property included in the former : because, it was Insisted, that so far as the property is common to both deeds, the latter must operate as a satisfaction to the former, or the parties interested must elect between them.

There is no evidence of any intention on the part of the testator to satisfy the first deed by the execution of the last. There is no reference, whatever, in the last deed, nor, indeed, in the will, to the deed of 1803; nor any thing to show that that deed was in the mind of the testator, when he executed the two junior instruments. When we consider the nature of the first deed,— that so as the testator was concerned, it was an executed, and in no sense, an executory, contract; that it left in him no interest to convey, no duty to perform, nor obligation to fulfil: — we are at a loss to conceive how the last can be regarded as a satisfaction made on his part. Where a party, under obligation to pay money, or to convey property, and who has not already done it, makes a payment or conveyance, corresponding to his obligation; here is a case of satisfaction. But satisfaction can never arise,— as the very word imports, — where the duty is already fulfilled. Here the deed of 18.03 had already divested Mr. Pinckney of all legal interest in the property covered by it: and if he undertook to convey any portion of the same property in the deed of 1813, the latter conveyance is simply inoperative, and .the property remains where it was before.

Where the obligation is attempted to be got rid of, by fulfilling it upon different terms,, or out of different materials, than those which it demands, there may arise a case of election : and the party entitled to it may either insist upon a precise execution of the duty, or take the substitute. -The option is with him and not with the opposite party ; as it is in every case of unconditional satisfaction. If he elects the substitute, there follows a discharge, dr satisfaction of the precedent obligation: but this satisfaction is incident to, and consequent upon the election made.

But even if we assume that there is property common to both the deeds in this case, and take that as the ground of an election ; no election (as between the deeds) can be made at the present time, or between the present parties. In the events which have happened, as well as in any event that can now happen, the interests of Mrs. Pinckney are the same under both deeds. She cannot, therefore, be required to elect between them. It is only upon her death, that the interests provided for in the instruments, diverge. Under the one, all the issue of Mrs. Pinckney by any marriage she may contract, are to take: under the other only her children by Mr. Pinckney. But if an election is to be made with reference to Mrs. Pinckney’s death, it must be made by the parties who shall then be interested in the property, and must depend upon the condition of the property at that time : and I apprehend that the trustees, who are responsible for the execution of the deeds, must be parties. But I do not imagine that a case for election will then be presented. The children cannot elect to the exclusion, or ¿o the prejudice, of the other issue then in esse: nor is it to be expected that the latter will concur in an election to take under the last deed, which does not seem to provide for them, instead of the first, which does.

There does, however, appear to be a necessity for an election in the case; but it does not arise as between the two deeds: but between the last deed (or perhaps between both the deeds,) on the one hand, and the will on the other. This election is to be made by Mrs. Pinckney, and will not extend beyond her personal interests. By that part of the will which follows the lists of the negroes belonging to Moreland and Fairfield, respectively, the testator by way of compensating for the loss which Moreland had sustained by the cholera, seems to add to the Moreland stock a number of slaves who, he says, may not be enumerated in the deed of 1813. But this is done upon condition that such of the original Moreland stock as may have been omitted in that list, and included in the Fairfield list, shall be regarded as passing with the Fairfield trust estate created by the will. If Mrs. Pinck-ney elects to take under the will, she must submit to this condition. But, as is said in the decree, she will not be required to make the election until the condition of the property shall be ascertained : and an enquiry may be made before the master as to what negroes are added to oi omitted in the Moreland list, as intimated by the testator.

The remaining questions relate t’o the provision made for the payment of debts.

It is insisted that an enquiry should have been made to ascertain the amount of the debts as compared with the fund provided for satisfying them and with the residue of the estate; without which, it is said, the real intention -of the testator cannot be discovered. The fund specially provided, it is argued, is to remain subject to that trust only during Captain Huger’s life, which was subject to. terminate at -any moment after the death of the testator, and is still subject to terminate at any moment; and it is argued that a fund so precarious, could not have been intended by the testator to be substituted for, and in exoneration of the residuary, undisposed of property, which is the primary fund; especially if, upon enquiry, the debts should be found to be of such an amount as, in all probability, to require the residuary property to satisfy them.

But the evidence that would have arisen from such an enqui-ry, so far as it is competent evidence to disclose the intention of the testator, is already before the court. The fact was before the chancellor that there were debts to be paid ; that the testator had provided a special fund for satisfying them ; and that the rest of his estate consisted, partly of property specifically bequeathed ; partly of property covered by a general residuary clause of the will; and partly of property undisposed of. Now nothing could be added to these facts, by the enquiry demanded, but the amount of the debts and the comparative value of these different parts of the estate.

The question to be now discussed is not what is the proper fund for payment of debts under the true construction of this will; — to that I shall attend hereafter ; — but the present question is whether evidence of the particular circumstances of the estate is to be received to aid in, or to control, that construction : and we apprehend it would be repugnant both to principle and authority to receive, or use, it for such a purpose.

Mr. Roper, (Yol. 1. Ch. 12, § 3. pi. 3) lays it down “that the amount of the personal estate, in comparison with the debts, (fee. is not to be considered, in forming an opinion of the testator’s intention to exonerate it;” and he refers to four cases, which I have examined ; and they fully sustain his position.

In Inchiquin vs. French, (Amb. 40) Lord Hardwick said that Lord Holt had held, rightly, that the court ought not to consider the circumstances of the testator in determining what was his intention.

In Stephenson vs. Heathcote, (1 Eden, 39, 43) parol evidence to shew an intention of the testator to exempt the personalty, was rejected by Lord Nottingham. And in decreeing upon the merits of the case, his Lordship says “ The intention must be discovered from the words of the will itself, and not from extrinsic circumstances. The court must proceed upon known principles; not on loose conjectural circumstances, or by considering what a man may be imagined to do, in the testator’s circumstances. We are not to enquire into the amount of the personal estate, to know whether it be or be not sufficient to pay debts,” (fee.

In Brummel vs. Prothero, (3 Ves. 111) Lord Alvanly said, “I will net look out of the will as to the state of the testator’s affairs. I shall not be guided by the consideration, whether he could or could not, under certain circumstances, have intended, what might, or might not, have been inferred from the same will, under other circumstances.”

In Bootle vs. Blundell, (1 Meriv. 193) Lord Eldon remarked, “with regard to circumstances dehors the will, which have been sometimes called in to assist in explaining it; (such as the respective amount of the real and personal estate; the greater or less degree of personal favor which the testator may be presumed to have intended towards this or that object of his bounty, and others of that nature,) I apprehend that they ought all to be set aside, in the consideration of a question depending on a will: such question being fit to be decided only by an examination of the whole will, taken together.”

In considering the remaining question, which is, whether the fund provided by the testator for payment of his debts, is to be regarded as the primary fund, the first observation is, that there are no creditors here, pressing their demands beyond the ability of this fund. No other fund has yet been broken into by creditors : nor are the executors here, shewing an exigency calling upon the court to set apart another fund in its place. Should creditors take hold of any other property, or, should the executors apply for leave to make use of other property; and shew a necessity for the application ; it will then become necessary to determine some of the questions argued here ; as, for instance, whether any compensation, and what compensation, should be made to the parties entitled to the property thus treated, and from what source the compensation should come. At present the only question is, which is the fund primarily liable.

It has been candidly conceded, in argument, that by the English rule personalty is liable before realty; and that in each of these classes respectively residuary or intestate property is liable before that which is specifically disposed of; and that where a specific property is charged with- debts, that shall not exonerate other property, otherwise liable in the first instance, unless the will contains an express exoneration or bears evidence of an intion to exonerate the latter. Evidence of this is found in the authorities quoted.

Mr. Roper says, (1 Rop. Ch. 12. § 3. pi. 11.) “ The rule is general, that, in the absence of contrary intention, the personal estate is the first and natural fund for the payment of debts and legacies, and the real estate is only to be resorted to in aid of the personal.”

Again: “ whether the real estate be devised to a person upon condition of his paying debts and legacies, or be charged with them generally, or whether it be given to trustees for those purposes, and the personal estate is disposed of by general residuary bequest; — none of these circumstances will prevent the personal fund being applied, in the first instance, to the satisfaction of these demands.”

He says, again, (Id. pi. 2.) when the question presented is, whether the realty is to be considered t'he primary fund for paying debts and legacies, it resolves itself in each particular case, into this : “does there appear from the whole testamentary disposition, taken together, an intention on the part of the testator, so expressed as to convince a judicial mind, that it was meant, not merely to charge the real estate-, but so to charge it as to exempt the personal ? for it is not by an intention to charge the real, but an intention to discharge the personal estate, that the question is to be decided.”

But we concur with the Chancellor that this is not the rule with us. It is admitted that the cases of Hall vs. Hall, and Warley vs. Warley, referred to by the Chancellor, did not necessarily require the decision which has been made in this case. But the question now before us was well considered in Warley vs. Warley, with a reference to the principal cases cited by Mr. Roper, and which have been again quoted by counsel: and upon mature reflection we are satisfied with the order of liability laid down in that case; and principally for the reasons so ably urged by the Chancellor who delivered that opinion.

We take it to be the rule with us that where particular property is pointed out, and especially where, as in this case, a particular fund is created, for the payment of debts and legacies: this is sufficient evidence of an intention that that shall be the primary fund or property to pay them. And we are satisfied that this rule in all cases accomplishes the prima facie intention of the testator, as well as the policy of our law. This must suffice, We might go further into this subject: but it must be apparent to all who witness and candidly consider the labors of this bench, that it is really impossible, in the time allowed us, to exhibit our opinions in a manner-corresponding to the importance, of the questions presented to us, or satisfactory to the profession, or even to ourselves.

It is- ordered that, with these explanations and modifications of the decree, the appeal be dismissed.

Johnson and Dunkin, CC. concurred.  