
    [Sunbury,
    June 28, 1824.]
    CLARK against RIDDLE, surviving executor of DOUGHERTY.
    IN ERROR.
    Where a testator devised all his estate, real and personal, to his wife, during her natural life, after discharging all Ms lawful debts, and from and immediately after her decease, he gave and devised, of the same, pecuniary legacies to different relations, the residue 'of his estate, whatever it might be, to be equally divided between two other relations, or the surviving heirs of each: held, that the will gave no power to the executors to sell the real estate.
    This was an ejectment for land' in Lycoming county, brought by the defendant in error, Francis Riddle, surviving executor of Henry Dougherty, against the defendant in error, Thomas Clark. The action was instituted by virtue of the act of 12th March, 1800. 3 Sm, L. 433, the first section of which declares, “ that in all cases, wherein testators have devised, or may hereafter devise, their real estates, or any part thereof, to their executors, to be sold, or have athorised and directed, or may hereafter authorise or direct, such executors to sell and convey, such real estates, or have dii’ected, or may hereafter direct such real estates to be sold, without naming, or declaring who shall sell the same, if one or more of such executors is or are since dead, or shall hereafter die, it shall and maybe lawful, for the surviving executor or executors, to bring actions for the recovery of the possession thereof, and against trespasses thereon, to sell and convey such real estates, or manage the same for the benefit of the persons interested therein, as fully and completely as he, she or they, together with his, her or their co-executor or co-executors, would be empowered to do, if he she or wei’e still living. ”
    The plaintiff’s right to recover, depended upoix whether the will of Henry Dougherty, contained a power to sell his real estate, for the payment of his debts and legacies? The part of the will upon which the question arose, was in these words:
    .. “I give and devise unto my dear wife, Sarah Dougherty, all. my estate, real and personal, dui'ing her natural life, after discharging all my lawful debts. She the said Sarah Dougherty is not to involve or destroy any part of the said estate, more than such lawful and reasonable demands for to make her life comfortable and happy. And fx’om and immediately after her decease, I give and devise, of the same, unto my nephew, John Dougherty, five pounds, likewise, Henry Dougherty, five pounds, and Daniel Dougherty, twenty pounds. And I give and devise to my sisters, in Ireland, in the following manner: — to my half sister, Peggy Dougherty? thirty pounds, and the residue of my estate, whatever it may be, is to be equally divided between my two natural sisters, now in Ireland, Molly and Meagey Dougherty, or the surviving heirs of each. And lastly, I nominate and constitute and. appoint my said wife, and my two trusty friends, Francis Piddle, and James Stewart, of this place, to be the executors, of this my last will, hereby revoking, &c.”
    The Court of Common Pleas gave judgment in favour of the plaintiff, upon which the defendant sued out a writ of error.
    
      Anthony, for the plaintiff in error,
    was estopped by the court, who wished first to hear the counsel on the other side.
    
      Campbell, for the defendant in ei’ror,
    observed, that the will contained an implied power to sell. It was evident, that the testator did not mean, that the little personal property he left, should be taken to pay his debts. Where one devised his lands, his u debts and legacies being first deducted,” it was a held to be devise to be sold for the payment of debts. 4 Ba. Ab. 284.
   Per Curiam.

This is an ejectment, in which Francis Biddle, surviving executor of Henry Dougherty, the defendant in error, was plaintiff below; and the only question is, whether the testator, Henry Dougherty, ordered his land to be sold, for the payment of his debts and legacies. If he did, the plaintiff may recover by virtue of the act of 12th March, 1800, 3 Sm. L. 4331 But if the will contains no such order, the plaintiff has no title. The testator devised, ci all his estate real and personal, to his wife, Sarah, during her natural life, after discharging all his lawful debts,” and from and immediately after her decease, he gave and devised, “of the same, unto his nephew, John Dougherty, five pounds, likewise, to Henry Dougherty, five pounds, and Daniel Dougherty, twenty pounds, and to his sisters in Ireland, in the following manner: to his half sister, Peggy Dougherty, thirty pounds, and the residue of his estate, whatever it might be, was to be equally divided, between his two natural-sisters then in Ireland, Molly and Maegy Dougherty, or the surviving heirs of each.” And he appointed his wife, and his friends, Francis Riddle and James Stewart,- his executors. IIis wife survived him, but is now dead, as is also James Stewart, the other executor. There is nothing like an express order, that the testator’s land should be sold, nor can we perceive any thing from which an implication of such an order can be drawn. The land is charged with the payment of debts and legacies, which might be paid by the devisees, and then no sale would be necessary. If not paid, the land .may be sold by legal process. All the testator’s lands are subject to the payment of his debts, by the law of the country. And if an intention of an order of sale can be drawn from this will, sp may it from every will in which land is devised. For it is presumed, that every testator knows the law by which' his lands are liable to his debts. The devisees of this land may recover it, in an ejectment; the creditors, if there are any, may have it sold by execution, after obtaining judgment against the surviving executor; or the legatees, if not satisfied, may come on the land, by actions of several kinds. There is no occasion, therefore, to have recourse to a forced implication, in order to procure a sale. It appears to the court to be a plain case. The will of Henry Dougherty contains no order or direction for the sale of his land, express or implied. The judgment of the Court of Common Pleas, must therefore be reversed.

Judgment reversed.  