
    *DECEMBER TERM, 1801.
    CORAM — -SHIPPEN, CHIEF JUSTICE, YEATES, SMITH AND BRACKEN RIDGE, JUSTICES.
    Elizabeth Tucker against Maria Hassenclever, Elizabeth Shallus and Adam Melcher who survived Jacob Melcher. Mary Clifton by her guardian Jonathan Williams against Same. Francis Clifton by her guardian against Same.
    A will, beginning with “ I direct all my just debts and funeral expences to be “ paid by my executors,” and then devising four pecuniary legacies and live tracts of land, and concluding, “the rest and residue of my estate, real and personal, I “ give to my four brothers and sisters, A, B, C and D.” The pecuniary legacies, on a deficiency of personal estate, are chargeable on the lands.
    Case stated. Isaac Melcher, of Grseme Park, in Horsham township, in Montgomery county, esq. being seized of estate personal and real, made his last will and testament in the words following, dated 22d May 1788.
    “It is my will, that my just debts and funeral expences be “fully paid and satisfied by my executors hereafter named, as “soon after my decease as possible. Item, I give and bequeath “to my niece' Maria Vanderen, the sum of 300I. money of “ Pennsylvania, to be paid her in gold and silver coin on the day of “her marriage, or arrival at lawful age, which ever shall first “ happen, meanwhile to be placed out’ at interest from one year “after my decease, on goocl real security, for her -use, and in “case of her death in an •unmarried state, then to sink into my “ residuary estate. Item, I give and bequeath to Miss Eleanor “ Clifton, of Philadelphia, the sum of 500I., to be paid to her “ one year after my decease, and in case of her death without “ issue, to be equally divided among her three sisters, Elizabeth, [*295 Mary, and Frances, or the survivors of them. Item, I give, “devise, and bequeath unto Horatio Lawrence, son of J. Cald“well, and to his heirs and assigns, my five tracts of land, No. “15, 16, 17, 18 and 19, situate at Logstown, now called Mont-“morin, in the county of Westmoreland, estimated at 3000I., to “ hold to him, his heirs and assigns forever; and I do further “give and bequeath to him the sum of 100L, to be paid to him “ at lawful age, meanwhile to be placed out at interest, on good “ security, for his use; but in case he departs this life unmar- “ ried, the devise of lands and bequest of money to him made “ as aforesaid shall be void, and the whole sink in my residu- “ ary estate. Item, I give and bequeath to my friend Christo“pher Baker, of the city of Philadelphia, scrivener, the sum of “ *501. as an acknowledgment of services received, to be “ paid to him one year after my decease. Item, the rest “and residue of my estate real and personal whatsoever and “ wheresoever, I give, devise and bequeath unto my dear brothers “and sisters, Adam Melcher, Jacob Melcher, Maria Hassenclever “and Elizabeth Shallus, (the wife of Jacob Shallus) their heirs “and assigns for ever as tenants in common, and to be equally “divided between them share and share alike, provided always, “ that my sister Maria Hassenclever keep the whole in her possession, during her widowhood. Lastly, I do hereby nominate and appoint William Clifton, Andrew Eppele and Jacob “ Lawersweyler, executors of this my last will and testament, “ratifying,” &c.
    The said Isaac Melcher died, seized of the said real estate in fee simple, and possessed of the said personal real estate absolutely, on the day of ; and at the death of the said Isaac, all the legatees and devisees in the said will named, were living, to wit, Maria Vandaren, Eleanor Clifton, Elizabeth, Mary, and Frances Clifton, Horatio Lawrence, Chris-; topher Baker, Adam Melcher, Jacob Melcher, Maria Hassen-clever, and Elizabeth Shallus.
    Subsequent to the death of the said Isaac Melcher, Eleanor Clifton one of the legatees in the said will named, died on the 22d day of July 1791, leaving no issue. Christopher Baker another of the legatees died on the day of ; and Jacob Melcher another of the residuary legatees died on the 22d day of July 1790.
    It is agreed, that there are no assets in the hands of the executors in the said will named, out of which the said legacies or any part thereof can be paid and satisfied; and that the value of the lands devised is to a greater amount than the legacies in the said will mentioned.
    The question submitted to the court is, whether the lands devised in and by the said will are liable to the payment of the said legacies; and whether the said residuary legatees are chargeable therewith, on account of the said devises and of the said lands, into the possession of which they entered after the death of the said testator ? If the court shall be of opinion from the preceding statement, that the said residuary devisees are liable on account of the said land, to the payment of the said legacies, then judgments to be entered for the plaintiffs, with costs of suit. But if the court shall be of a different opinion, then the judgment tp be entered for the defendants.
    * *The case was argued last term by Messrs. Rawle and 9 J S. Levy for the defendants, and by Messrs. Ingersoll and Adams for the plaintiffs.
    For the defendants it was urged, that the words rest and residue of my estate real and personal can only mean the remainder of his personal estate, after payment of his debts, funeral expences and legacies, and of his lands after taking therefrom the five tracts of land devised to Horatio Lawrence. In the beginning of the will, the words are my just debts and fimeral expences shall be paid as soon as possible, but legacies are not mentioned. If there had been no residuary clause, it cannot be pretended, that the legatees could have any claims to be satisfied out of the real estate. It is a rule in the construction of wills, that when a testator has given away all his interest and estate in certain lands, so that if he were to die immediately, nothing remains undisposed of, he cannot intend to give any thing in these lands to his residuary devisee.' Willes 297. A residuary devisee cannot take a devise of lands which has been lapsed, though it is otherwise as to personalties. Bla. Rep. 736. Goodright v. Opie, Fortesc. 184. S. C. 8 Mod. 123. Wright v. Horne, 8 Mod. 222. A residuary legatee shall have no contribution from specific legatee. 2 Equ. Ca. Abr. 552. pi. 7. Pecuniary legacies if assets are wanting, shall be paid in average. 1 Wms. 127. But specific legacies are not bound to abate in proportion. 1 Wms. 422. They are not to be broken into in order to make good a pecuniary legacy, and much less shall pecuniary legatees on a deficiency of assets, have any remedy for their legacies against a devisee of land. 1 Wms. 201. 1 Vern. 31. And every devisee of land is as much a specific legatee, as a pecuniary legatee. 1 Wms. 678. 3 Wms. 324.
    It cannot be denied, that the personal estate of a testator is the primary fund for the payment of all his personal debts, or general legacies. 2 Equ. Ca. Abr.'369, c. 5. 2 Cha. Rep. 273, Free. Cha. 3. 2 Vern. 125, 302.
    Now it is apprehended, that exclusive of these cases, where lands are expressly charged by the testator for the payment of his legacies, there are only five other cases mentioned in the books, wherein they have been held to be so charged.
    1. When there is a necessary implication to such effect, as in Alcock v. Sparhawk, 2 Vern. 228. One by will devised his land to his brother (who was his heir at law) in fee, gave different legacies, and made his brother executor, desiring him to see his will performed. It was held that the land was chargeable with *the legacies. Such from the very nature of the case, must have been the testator’s intention. L 297
    2. Where the executors have been impowered to sell lands, and the amount has thereby become equitable assets, as in Kidney and Williams v. Coussmaker, Ves. jr. 436. Devise of land to be sold, money produced by the sale was charged with simple contract debts, on the intention, though doubtful.
    3. Where the legatee is a meritorious creditor, as a wife, child, brother or sister. It was so laid down in Elliot v. Hancock, 2 Vern. 143, in the case of a child. The father gave land to his younger son and made him executor, and gave an annuity of 5I. per annum to his eldest son, but did not expressly charge the land. A creditor is considered as a purchaser for valuable consideration. 1 Cha. Ca. 10. And children are in equity, considered in the nature of creditors. Pow. on Powers 163.
    4. Where the application is, contra spoliatorem, as in Joyce’s case, Neis. Cha. Rep. 155, where the defendant had embezzled the personal property.
    5. Wherever lands by the decisions in England are made liable to the payment of simple contract debts, these pecuniar}' legatees may follow the lands. But plain words are then requisite to charge the estate of an heir; for a charge so far as the value of it amounts, is pro tanto a disherison. Davis v. Gardiner, 2 Wms. 188. If the word debts had been omitted in the present will, they would not have been chargeable with simple con - tract debts in England. Ib. 190. Where a testator charged his lands with the payment of his legacies, it did not subject them to the payment of his debts. Clifton v. Burt, 1 Wms. 679.
    In the present case, the plaintiffs are mere volunteers and strangers; the defendants are brothers and sisters, and are considered as meritorious creditors, entitled to testator’s bounty. To Mrs. Hassenclever he devised the possession of the entire residue of his whole estate, during-her widowhood. If the testator has miscalculated the extent of his personal property after payment of his debts, and has made his bequests on that ground, it is a mistake, which this court cannot rectify.
    Argument for the plaintiffs. It is of no moment to consider whether the devise over to the now plaintiffs, the sisters of Miss Eleanor Clifton, is good or not. If the legacy was entailed on her, then she took the same absolutely, and her sisters succeeded thereto after her death, as her next of kin; but if the devise over is good, then they become entitled under the will.
    It is obvious, that the distinctions which have prevailed in England between real and personal estate, are not equally applicable in Pennsylvania, where lands are made chattels ^ „ for the payment of debts. 1 Dali. 481. 1 29
    
    It is however admitted, that the distinction between general and specific legacies prevails here. But we conceive that the defendant’s counsel have erred, when they considered the devise to their clients as specific. The truth is, that no specific'lands, or portions of land, are devised to them ; no tracts of land are particularized, no metes or bounds are set forth. The testator has devised to them the rest and residue of his estate, real and personal. Pie had before bequeathed four pecuniary legacies, and five specific tracts of land, and these prior claims are satisfied. If authorities are required to ascertain so clear a position, they are to be found in 3 Atky. 59. 2 Bla. Com. 514.
    There is no doubt but the personal property of a testator is the primary fund for discharging his debts and principal legacies, but the rule is not restrictive on persons who make their wills. This will is silent as to what fund shall be looked to for the payment of his legacies. The two species of property are blended together in one mass, and the words, rest and residue of my estate real and personal, shew this. The intention of the testator shall be carried into execution, if possible, throughout the whole will. 2 Dali. 245.
    The defendant’s counsel have cited Davis v. Gardiner, 2 Wms. 188. But it will be found in the state of that case, that the expressions are, after all my legacies paid, I give the residue of my personal estate to my son, which evinced his intention that the legacies were to be paid out of his personal property. It is true, that in the close of the case, a distinction seems to be set up, as to the operation of words, charging lands with the payment of debts, on a deficiency of debts, and of legacies. But •Mr. Coxe, in his judicious note, lb. 190, observes, that although the court may have expressed itself more strongly in the case of creditors than of legatees, it seems that no rule of construction has been adopted in the one case which does not apply to the other. He cites a variety of cases which warrant his position. 1 Vem. 411. 2 Vern. 228. Prec. Cha. 264. 3 Wms. 95. 4 Bro. P. C. 90. Talb. Cas. no. 1 Vez. 499. 2 Vez. 271, 313.
    A classification of the cases, wherein lands have been held chargeable with the payment of legacies, without express words for that purpose, has been attempted by the defendant’s counsel. The correct rule we conceive is, we are to be governed by the intention of the testator in this, as in other instances of the construction of wills.
    This was the criterion in Alcock v. Sparhawk, Elliot v. Hancock, and Joyce’s case, already cited, all of which prove that *299] Hands may be so charged without express words, pursuing the intent.
    The case of Astley v. Powis, 1 Vez. 496, is strongly allied to the present. There the testator devised money legacies and annuities, and then gave to E. B., his heirs and assigns forever, all his manors, &c., making him executor and residuary legatee after all just debts are paid and satisfied. Lord HaRDWicice observed, this would charge the real estate with the legacies, if the personal was deficient, for it does not give a specific devise of any part of the real estate, but by way of residue after the annuities, &c. which shews what was before given was out of either of those funds ; and his charging the legacies on the real estate, shews an intent that debts should be paid out of either fund, for legacies are to be paid subsequent to debts, and all this is one clause. The proper construction is, to take these words, after debts paid and satisfied, as relative to and running over the whole sentence, which clearly shews the real estate is chargeable.
    Cited in 13 S. & R. 353 ; 69 Pa. 176, in support o£ the proposition that in Pennsylvania,, where the testator has blended his real and personal estate, the real estate is subjected to the burden of the legacies, on a deficiency of personal estate.
    So in Kidney and Williams v. Coussmaker, i Ves. jr. 440, the Lord Chancellor says, a very little is sufficient to subject lands to the .payment of debts. Where a testator combines real with personal estate generally, all the burthens of the personal will be put on the real so combined with it. Ib. 444.
    The case of Nichols v. Postlethwaite, determined at Nisi Prius at Carlisle in October 1791, is directly in point as reported in 2 Dali. 131. There I. D. seized of land and having no personal estate, bequeathed several pecuniary legacies to different persons, and all the rest and residue of his estate, real and personal, he gave to his son J., whom he appointed executor, and who after the testator’s death entered into the land; and the court held it clearly, that nothing is given to the residuary legatee but what remains after payment of the legacies. These are a charge upon the testator’s real estate.
    What the plaintiffs rely on is, that on the face of the will it appears that the testator intended the devisee of the residue should take nothing until the pecuniary legacies were paid.
   The court continued the case under advisement until this term; Smith, J. observing, that from his own knowledge, the statement in the last case could not be correct, as to the testator’s having no personal estate.

And now this term, Shippen, C. J. pronounced the opinion of the court, that the testator certainly intended to charge his lands with the payment of the legacies, in case the personal estate ^should be deficient, and that the court had little doubt r*,00 on the point submitted to them upon the argument. *- ^

Judgment for the plaintiffs.

Vide 2 Bro. Ch. Ca. 94. 2 Ves. jr. 267. 3 Ves. jr. 545, 738.

These causes were removed to the Pligh Court of Errors and Appeals, and after solemn argument, the judgments were affirmed in January 1803.  