
    [Philadelphia,
    January 14,1836.]
    HOGELAND’S APPEAL.
    A testator directed his executor to convert his whole estate into money, and declared that he forgave certain debts due to him by his sons A. and B., and his sons-in-law, C. and D. He ordered the residue to be equally divided into six parts; and bequeathed one-sixth to a trustee, with directions to invest the same and pay the interest to E. (one of his daughters, the wife of F.) during her life, and the principal at her death to her children; He then added, “ It is further my will, that whatever debts may he due to me and owing from any of my sons or sons-in-law, (except those herein forgiven,) I order to be deducted from the share of such son or son-in-law, whether given direct or in trust; and the neat proceeds only after such deduction he appropriated to the use of such branch of my family.” At the date of the will, F., the son-in-law, -was indebted by bond and mortgage to the testator; after whose death, the land of F. bound by the mortgage, was sold by the sheriff, upon an execution at the suit of a judgment creditor; Held that the mortgage given by F. to the testator, was to be deducted from his wife’s share; and consequently was not a lien upon the land.
    Appeal by Derrick Hogeland from a decree of the Court of Common Pleas of the county of Montgomery, ifl the matter of the distribution of the money arising from the sale of certain real estate, by virtue of a writ of venditioni exponas, issued in a suit of James Comly, administrator, &c. of Deborah Ayres, deceased, against William Ayres, devisee of Samuel Ayres, deceased.
    George Shelmire, by his will dated the 15th day of January, 1828, after bequeathing to his wife certain articles of personal property, and directing that she should have the use of a house and lot of ground during her life, did “ give and forgive” to his sons William, Jacob, and George, and his sons-in-law, John Stephens, and Joel IÍ. Mann, who had intermarried with his daughters Ann and Sarah, certain bonds and mortgages executed by them and held by him, as therein mentioned. He then provided as follows:
    “ I order my executors hereinafter named, to sell at public sale, all the rest of my personal estate, not herein given to my said wife Rachel, and the messuage and lot which I purchased of the administrators of Isaac Davis, as soon as convenient after my decease. Out of the neat proceeds of said sales, and my outstanding money, I order my executors to place out at interest on land security, or otherwise render safe and productive, 7000 dollars; the interest of which I order to be paid to my said wife, Rachel, annually during Jier natural life, on the anniversary of my decease.
    “ The residue, if any, (after discharging just debts, funeral expenses, and costs of administration,) and all my other moneys not embraced in the above sum of 7000 dollars, I order to be divided into six equal parts; one of which six equal parts, I give to my son William, or to his legal representatives — one other sixth parti give to my son Jacob, or to his legal representatives — one other of which sixth parts I give to my son George, or to his legal representatives —one other of the sixth, parts I give to my daughter Ann, or to the issue of her body — one other sixth part I give to my daughter Sarah, or the heirs of her body — the other sixth part I give to my friend Israel Hallowell, of Abington township, in the said county of Montgomery, in trust that he put the said six;th part to interest on land security, or otherwise render it safe and productive, and pay the interest thence arising, to my daughter Mary, during her natural life, annually, and at her decease to pay the principal sum to all her children in equal portions. The children of deceased parents, if any, to take the share which would have been due the parent if living.”
    “ It is further my will that whatever debts may be due to me and owing from any of my sons or sons-in-law, {except those herein forgiven,) I order to be deducted from the share of such son or son-inlaiv, whether given direct or in trust; and the neat proceeds only after such deduction be appropriated to the use of such branch of my family.
    
    “ And at the decease of my said wife Rachel, I order my executors to sell at public sale, the said timber lot adjoining Elias Yerkes, for the best price which can be had, which price, together with the 7000 dollars set apart for the use of my said wife Rachel, after discharging the further costs of administration, I order to be divided into six equal parts.” [Five of which' six parts he gave to his sons William, Jacob, and George, and his daughters Ann and Sarah, the other sixth part he bequeathed as follows:] “ The other sixth part I give to my said friend Israel Hallowell, in trust to be disposed of for the use of my said daughter Mary, in all respects as the gift herein given to him for that purpose, and in both cases the interest to be for the separate use of my said daughter Mary, and at her decease, the principal for her lawful issue as in the case aforesaid.”
    The testator then appointed his son George, and Joseph Wood, trustees to receive the interest bequeathed to his wife, and dispose the same for her use; and lastly, appointed his sons William, Jacob, and George, and his sons-in-law William Ayres, John Stephens, and Joel K. Mann, executors of his will.
    George Shelmire, the testator, died on the 8th of February, 1828, leaving a considerable estate. Among the debts due to the testator, was a bond dated the 2d of April, 1814, for 2000 dollars, executed to him by his son-in-law, William Ayres, who had married his daughter Mary, one of the legatees named in the said will. To secure the payment of this bond, a mortgage was given by Ayres of the same date, upon a tract of land in Montgomery county. A scire facias had issued upon this mortgage, at the suit of Shelmire, in March, 1826, and judgment obtained for 2300 dollars, upon which a levari facias issued to August term of that year, which was stayed by the plaintiff Shelmire; and no further proceedings were taken to collect the debt, duringt he life time of Shelmire. On the 30 th of December, 1829, judgment was obtained by James Comly, administrator, &c. of Deborah Ayres, against William Ayres, upon which a venditioni exponas issued to April term, 1.831; and the tract of land mortgaged to Shelmire was sold by the sheriff. The money arising from the sale having been brought into court, auditors were appointed to ascertain the facts and make distribution thereof; who reported that the mortgage was not a subsisting lien upon the property, having been deducted from the legacy bequeathed to the wife of William Ayres by her father; consequently, that Derrick Hogeland, the next judgment creditor was entitled to the fund. Exceptions were filed to this report; and after argument, the court of Common Pleas set aside the report, and ordered the money to be paid to the executors of George Shelmire, the mortgagee.
    Derrick Hogeland appealed from the decree of the Common Pleas of this court.
    
      Mr. Sterigere, for the appellant,
    cited 1 Roper on Legacies, 326. Gordon on Decedents, 50, 206. 2 Black. Com. 379. 3 Burr. Rep. 1541, 1581,1662. 2 Dali. 244. 2 Roper, 62. 5 Bac. Mr. 684. 1 Peere Wins. 83. 2 Vernon, 521. 2 Peere Wms. 128.
    
      Mr. Poivel, contra,
    contended that the manifest intention of the testator was, to confer a benefit upon his daughter personally. In two clauses of the will he mentioned his outstanding debts as a fund for the payment of the legacies; and the proceedings for the recovery of the debt due by Ayres, showed that he looked to it as part of the future assets. This being the obvious general intent of the testator, he argued that the court would give effect to it, rather than rely upon a doubtful passage, to the prejudice of the testator’s daughter and legatee, whose claims were certainly greater than those of mere strangers.
   The opinion of the court was delivered by

Gibson, C. J.

This is an exceedingly plain case. A testator directs his property to be equally divided among his children, but orders that debts owing to him by any of his sons or sons-in-law, except those forgiven in the will, be deducted from the share of such son or son-in-law;, and that the residue only be paid to him, whether given immediately or in trust. The share, allotted to the wife of a son-in-law indebted to him by mortgage, he gives to her separate use; and the question, is whether the mortgage was merged in her share and 'extinguished by it, or whether, though deducted from the share, it remains an unsatisfied incumbrance on the mortgagor’s land. If the latter, it would follow that neither the daughter nor her husband got any thing like an equal share of her father’s estate. The argument on the other side is, that as the mortgage was not forgiven, it necessarily remains a charge in favour of the executors, not for the benefit of creditors (for there were none) but for the separate benefit of the mortgagor’s wife, and the other children. It follows not, however, that because not forgiven, it may not be satisfied out of the wife’s share. It is better for her that it should be so, than that she should get a sixth of it to her separate use. If it had been forgiven, it would have ceased to be a debt, and it would have been absurd to order it to be deducted. To do so would have been to forgive it to the husband, but to remember it to the wife. It was because it was not forgiven; that it was to be remembered in the general division. How else could the testator direct it to be satisfied by retaining it out of the wife’s portion ? It is said, that would not benefit the wife, who is supposed to have been the principal object of the testator’s bounty. Would it not benefit her to have her husband’s debt paid and his land disencumbered 1 But there is no peculiar favour evinced to his married daughters; as his sons and sons-in-law are put exactly on a footing, and the •share of the wife is said to be the husband’s. This equality of consideration between daughters and their husbands is common to a particular class, with whom the most usual method of evidencing advancements, is to have recourse to notes, obligations, or book entries, to stand against the children when their shares come to be received.

The mortgage is therefore declared not to be a lien on the moneys in court; and it is ordered that the decree of the court in this particular be reversed, and the report of the auditors affirmed.  