
    *Executors of Decker v. Executors of Decker.
    Devise to J. D. of a tract of land, “ free and clear from any incumbrance, except as hereinafter mentioned,” “ with a limitation over, in case devisee die without issue,” followed with directions that, in “consideration” of the devise, J. D. should pay at different periods, to different persons: Held, that J. D. is only personally liable for the sums appointed to be paid in his lifetime. The amount falling due after the death of J. D. is a charge only upon the land devised.
    *This cause was adjourned here for decision from Pickaway county. It was a bill in chancery, and the object was to obtain the true construction of a will. The facts involved in the cause are as follow:
    In 1815, John Decker, by his last will and testament, devised to his son, Jacob Decker, eight hundred and thirty-five acres of land, at the estimated value of eight thousand three hundred and fifty dollars, “ free, and clear from any incumbrance, except as hereinafter mentionedin consideration of which devise, he requires the said Jacob to pay to seven of the children of the said John Decker the sum of four hundred and forty-four pounds eight shillings and ten pence, Virginia currency, each, in payments of one hundred pounds per year; the first payment to be made to the eldest son, on May 1, 1816; the second, to thenext son (the devisee), on May 1, 1817, and so on, until payments of one hundred pounds each had been made to all those seven; and in the next course of payments, commencing with the oldest son, and going on in the same routine as before, the whole payments were to be settled up. But out of the first payment to each of those heirs was to be deducted the amount advanced to them by the testator, in his lifetime. To his two unmarried daughters, Elizabeth and Rebecca, he required the said Jacob to pay one thousand dollars each, on their marriage day, which was to be holden as one of the yearly payments, directed in the will, and was to postpone the payment which would be then due to the next of the seven first-named children, and the residue of six hundred and fifty dollars each, was to be paid to the said daughters, in their proper place, among the other payments. The will further provides, that if the devisee, Jacob Decker, should die without issue, that then the estate devised to the said Jacob, “ after the rest may have their legacies, shall revert back to the rest of my children and their heirs, to be equally divided among them.” In 1823, Jacob Decker died without issue, having paid up to the several heirs all that by the terms of the will became-due in his lifetime. Having disposed by will of his own estate, and made complainant his executor, this bill is filed to settle the rights of the executors of the two estates under the wills. There are no facts in dispute. The principle involved in the construction of John ^Decker’s will being settled, the parties can adjust the estates.
    Ewing, for complainant:
    We contend that the legacies are sums arising out of land devised, and properly chargeable upon it, and that they do not attach to the person of the devisee, until they become due; that they-are not like notes or bonds, payable at any future day, debitum inpresentí solvendum in futuro, but that they attend the estate devised, until the day of payment arrives, when they become the personal debt of him who then has the estate by the will. We admit that Jacob Decker was bound to pay all the legacies that became due in his lifetime, while he was the owner of the estate; but when the estate left him, and went to the remaining heirs, they took it incumbered with such legacies, as became payable after it fell into their hands. This is a case sui generis. I can find nothing like it in any of the books; but there are certain familiar principles, applicable to the construction of devisees, which, applied to this, will obviate the difficulties which seem to attend it.
    1. It is an invariable principle in the construction of wills, that every devise shall be intended to have been made for the benefit of the devisee; and so strong and absolute is this legal intendment, that it is made to control the construction of the will. As if land be devised to A. without words of inheritance, he shall take but a life estate. But if it be devised to him, “ upon his paying,” or, “ so that he pay,” etc., a sum of money, however small, he shall have an estate in fee; for it is possible, say the books, that his life-estate might determine, before the profits of the land would repay 'him, and so the devisee would be injured, and not benefited by the-devise. But if the sum be charged upon the estate devised, and not upon the person of the devisee, he shall have but a life estate, or he can in no event suffer loss by the gift. 6 Johns. 192; 6 Cruise, 253, 254; 10 J. N. 153; 1 Atk. 502, 510. Resting this case, then, •on the same principles on which those cases rest, and taking it as -an unvarying canon, in the construction of devises, that the devise shall be intended to have been made for the benefit of the devisee, we say that the estate being here limited to the life of the *devisee, the legaciess hould he holden a charge upon the estate, and’ not on the person; otherwise, the devisee might be injured by the gift; but this the more especially, as the words of the will will bear that construction.
    2. And it is laid down in Pawlet v. Pawlet, 3 Vent. 366, 367, that when a legacy is charged upon a real estate, if the person entitled to it (the legacy) die before - the day of payment, it sinks into the 1 and, for the benefit of the inheritance. Vide 1 Atk. 502, 510.
    On the same principle, I conceive, that when a life estate in land is devised subject to a legacy, and the devisee dies before the legacy becomes due, that the charge attaches, or rather continues attached to the estate and merged in it; and that a burden devised by the testator goes the same way with the benefit, and is lapsed by the death of the party to be charged, as well as of the party to be benefited, if he dies before the charge or benefit attaches.
    'Scott and G-rimke, for defendants:
    Although it is contended by the defendant that the legacies of .John Decker are not a charge upon the land, it is not intended to be asserted that the land may not be a fund out of which they, or a part of them are to be eventually paid. But the devise of the land is to Jacob Decker, in consideration of his discharging the legacies to his brothers and sisters, language which is too strong, precise, and unequivocal to be controlled by any subsequent declaration, and which words, by force of their technical meaning, as well as the plain and manifest intention of the testator, .have given the estate absolutely to Jacob, and have therefore made the legacies a debt due by himself. In consequence of which the personal property of Jacob Decker is, as in all other cases, the primary fund out of which the debt is to be discharged, and the real estate •can only be brought in aid of the personalty, provided this last is deficient. The bill, therefore, is defective in not averring a failure <of assets sufficient to pay the legacies due by Jacob.
    
      It may be supposed that inconvenience and hardship might be the result, if this construction is given to the will. It may be said that although in this instance, the last testator, *Jaeob Decker, has actually died worth movable property sufficient to pay all the legacies, yet it may have been otherwise; and if he had also alienated the land in bis lifetime, the legatees would be left absolutely destitute, and without any means of enforcing the payment of the sums due to them. But these inconveniences are continually occurring, in consequence of the necessity that the> rules of law should be general ones, and in consequence of the inability of a vast majority of testators to comprehend the whole-force and extent of those rules. If the testator, John, did intend that the legacies should be a charge primarily, on the land, nothing would have been easier than to have said so. And he would, in pursuance of this intention, have devised the land to his executors, to be sold, or in order that his executors should sell it. Either of which is the appropriate course when it is intended to change the order in which assets are ordinarily distributed. Indeed, nothing but a devise of this nature would enable the land to be «sold, in any other way than by an application on behalf of the executor to the court of common pleas for license to sell. A devise of land to executors to: be sold, implies a strong personal trust and confidence, and therefore dispenses with the necessity of an application to the court. But no other case does.
    It is doubtful, however, whether the inconvenience supposed can in reality occur, whether the land be primarily or only secondarily liable. And if it can not, then there can be no pretense, in the absence of plain and positive intention, and of precise and unequivocal phraseology, for declaring these legacies a real, rather than a personal charge. Land is in almost every one of our states liable to the payment of ail the debts of the testator, provided his personal property is not sufficient for that purpose.- But in some instances, the heir to whom the land has descended, or the devisee to whom a more independent estate has been transferred, have before the ascertainment and settlement of the debts of the estate, sold the land to a bona fide purchaser; and in both cases the court have decided, whenever the question has been made, that the land may be reached even in the hands of such bona fide purchaser, and applied to the discharge of those debts which the personal fund is insufficient to pay. Thus, in Gore v. Brazier, 3 Mass. 523, land devised, and which^had been aliened by the devisee to a Iona fide purchaser, was pursued and was converted into a fund for the discharge of the debts of the testator. The law relative to this subject is the same in that state as in Ohio, and the opinion of Parsons may be considered as settling this once difficult and intricate question. In Graff v. Smith, 1 Dall. 481, the heir sold the land over which he supposed he might exercise an entire and perfect control. But it was, notwithstanding, rendered liable in his hands to the payment of the debts of the testator. These decisions may at first appear extraordinary when it is considered that an executor has only a naked authority, and no interest in the real estate. But, as remarked by Parsons, the law which declares lands to be liable to the payment of debts would be nugatory, if the heir or devisee were permitted to sell it discharged of the debts. It is true, in the cases to which I have referred, the contest has been between the purchaser and the creditors, or legatees of the first devisor; and here, in the event supposed, of a sale by Ja'cob Decker in his lifetime, and upon the supposition, also, that the legacies are his debt, it may be supposed difficult to find an analogy to the cases cited. But there are three kinds of charges : charges on the land, charges on the person, and charges on the person in respect to the land devised. The first is the only instance in which the land is primarily liable.' In the second, it is secondarily so, and is so declared by the testator whose will is duly recorded, and of which every purchaser is bound to take notice, as without it he can not make out a chain of title. It is true the distinction between these various kinds of charges is very subtle, even as stated by Cruise, and it may be as well contended that the legacies are a mere personal charge, as that they are a charge upon the person, in regard to the estate in his hands.
    The question, whether a charge is a personal or real one, has generally arisen in wills, when it is doubtful whether the testator intended to devise an estate in fee, or only life estate. And it has been universally decided, where the charge is personal, that a fee simple is devised, and where the charge is on the land, that an estate for life only is devised ; the reason of which distinction is obvious. Jackson v. Bull, 10 Johns. The direction in the will, says Mr. Justice Story, in Wright v. Denn, 10 Wheat 224, “ is that James do pay Hannah and ^Abigail the sum of fifty pounds each, when they come of age, but it is not said or implied anywhere in the will that these legacies shall be a charge upon the land.” “The direction is personal, and must be a charge on the person, only unless it can be shown from other parts of the will that the testator charged it on the land.” So in 2 Marshall, 229, the charge was declared to be a personal one, although the arguments in favor of its being a real charge must have been very strong. But there are other parts of the will of John Decker which denote that he intended the legacies to be only a personal charge. He manifests a strong desire that the estate should be left in his family, and declares that it shall go over to others of the family, in the event of Jacob’s dying without issue. The whole estate is limited over, on this event, and after the payment of the legacies. But if the legacies were first to be paid, if the land were the appropriate fund for the discharge, and he must be supposed to have known this if he intended them to be a real charge, then in no event, could his intention, that the land should go over on a certain contingency, be accomplished. If the legacies are a charge on the land, they were so in the lifetime of Jacob Decker, as well as after his death. Then this strange and manifest inconsistency and injustice would result. The land is exactly sufficient to pay all the legatees and also Jacob a sum equal to the largest of the bequests. The land is sold, except so much as will be sufficient to .give Jacob this sum. The devise over is thus defeated by the testator himself, except as to that small part which is sufficient to remunerate Jacob for the difficult task he has undertaken, and that very part is the only portion of the estate which is made to go over, and over which Jacob is deprived of all control. Now the first testator, John, intended two things: 1. That the legacies should be paid by Jacob; and 2. That the estate should be limited over on a certain event. Both will be accomplished, if the charge is declared a personal one. One only can be attained, if it is decreed to be a real one. Indeed, there are unanswerable reasons why a •charge should be declared to be personal rather than real, if the will is at all doubtful. The legatees have a stronger security for the payment of their bequests in the first case. Two funds are provided for their payment—the land devised by the first devisor, *and the j>ersonal propertyleft by the second devisor. In the latter case, the first fund only is available.
    It may be said that the limitation is too remote, being on an indefinite failure of issue. But in the first place, it is immaterial how this may be. “ We are seeking for the intention,” says Tilghman, in a case in Binney. And in the second place, although, it is admitted that no question was once more agitated, yet it is contended that it is now settled, that dying without issue means dying without leaving issue, and does not convey the idea of an indefinite failure. The cases of Jackson v. Anderson, 16 Johns. 382, and Millege v. Lamar, 4 Dessaussure, 617, have put this question to rest.
    This devise of an estate in fee simple is also inconsistent with the idea that the land is charged with the legacies. If, where the charge is personal, the estate must necessarily be a fee, 10 Johns. 158, the converse must also hold, and whenever a fee is given, it •affords demonstrative proof that the intention was to give an estate in fee simple. In 3 Serg. & Rawle, 487, note, Tilghman says, a devise with an obligation to pay large sums of money is a devise in fee simple. But such an estate is inconsistent with any other estate than that of a fee from rent. In 3 Serg. & Rawle, 359, the •court held a covenant entered into by three sons, to whom the father had conveyed land, not to be a real one, but only binding the person, and that if it were real, ejectment would lie. And then there is no remedy by bill in chancery, for the remedy at law is plain and adequate. Indeed, whether the legacies are a real charge or operate as a condition, which are the views the most favorable for the complainant, the remedy is at law. 1 Bac. 632, 633; 4 Cruise, 428, Criekmer’s case, and Curtis v. Wolverton, there cited.
    There is another class of cases which shed a good deal of light on this subject. It is settled that where a party incurs a debt, to secure the payment of which he creates an incumbrance on land, and dies intestate or after devising the land, that the land thus incumbered with the debt is primarily liable in the possession of the heir or devisee, and that the heir or devisee of such first heir or devisee can not be relieved by having the burden thrown on the personal fund. Thus in Shafto v. Shaf'to, note to 2 P. Wms. 664, the devise of land, subject to a mortgage made by his devisor, covenanted for the ^payment of the debt, the question being whether the personal estate of the devisee should not be liable. The chancellor decided that the land was primarily liable because the original debtor had created a charge upon it, and although as between his heir and personal representatives the latter should have been made to relieve the former, yet it was different as between the heir and personal representatives of the second devisor. The same rule was declared in Tankerville v. Fawcett, 2 Bro. 57. Lord Kenyon there says: “ Where an estate descends or comes to one, subject to a mortgage, although the mortgage be afterward assigned, and the party enters into a covenant to pay the money borrowed, yet that shall not bind his personal estate.” The case of Tweddel v. Tweddel, 2 Bro. 101, is to the same effect. In Woods v. Huntingford, 2 Ves. 128, R. H. mortgaged land for the payment of a debt. The land was afterward conveyed to the use of John,, and was then reconveyed to R. H. The question was between the heir and personal representatives of R. H. which estate should pay the debt. The land being to the use of John, who joined with his father in a covenant for the payment of the money, he was considered the original debtor, and being afterward reconveyed to R. H. it was decided that it would have been primarily liable after the death of R. H., if he had not made the debt his own by entering into a new mortgage. Thus a clear and satisfactory rule has been established by these cases, that whenever a party has incurred a debt, and has created a charge upon land in order to secure the payment of it, and then devised the land, the land is secondarily liable, as between his real and personal representatives; but that as between the real and personal representatives of his devisee the land is the primary fund. And the determination of this case would, therefore, seem to depend upon the mere question whether the legacies are a debt due by old John Decker. And we believe it requires no argument to prove that they are not; that they are a gratuity instead of a debt. But as an estate in fee simple, which necessarily presupposes an unincumbered estate, is devised to Jacob, and as the whole estate is given over, after the death of Jacob, and not merely the residue, after the payment of the legacies, no alternative remains but to consider the charge a personal one, and then *the legacies are a debt due by Jacob, and not by John, and the consequence is, that as between the real and personal representatives of the former the land is only secondarily liable. Jacob has affirmed the will, as the bill itself shows, and in the language of the will, in consideration of the devise of the land, he has assumed the debt, and has accordingly discharged a great part of the legacies. Indeed, some light is necessarily thrown on this subject by the conduct of Jacob, in his lifetime and by his last will. It is not meant to be asserted that his construction of the will is decisive of the meaning which should be attached to it; but in a doubtful case, and where the intention is wished to be discovered, the opinion of the devisee and executor is of some importance. No part of the land, as appears by the bill, has yet been sold for the discharge of the legacies, but they have nearly all been paid by Jacob out of his other property. And in his will he desires that all his debts should be paid out of his personal property in the first instance. If the intention of John Decker is at all doubtful, Jacob is the person who would best apprehend that intention ; and the bill averring that the other legacies are paid, and praying for a sale of the whole land, shows that those legacies have been paid by Jacob as a debt due by himself. In whatever light, therefore, we view this question, there appears to be no reason to-consider them as a real charge, which would be inverting the usual order in the distribution of assets; but there appears to be every reason to believe that it was the intention, as the language of the will plainly imports, that they are a charge upon the person only.
   Opinion of the court, by

Judge Burnet :

This appears to be an amicable suit for the purpose of obtaining a construction of the last will and testament oí John Decker, as a-guide to the parties in settling the estates which they severally represent.

The question presented is, in some respects, a novel one, and it is not easy to determine with certainty to what class of cases it-properly belongs; whether to that which would make the legacies a charge on the land, or to that which makes them a charge on the person, or to the third, which considers them as a charge on the person in respect to *the land. If they are chargeable on the person, it must be because the testator has devised an estate; for when the devise is of a life estate the’charge is on the land, and not on the person, for an obvious reason, because the estate might terminate before the devisee derived the least benefit from it, and it certainly must terminate with his life. The consequence is, that the value or quantum of the estate, which is the. consideration of the responsibility of the devisee, is to be taken into the account, as one of the guides by which the rules of construction are to be applied.

A devise of the fee has been considered as sufficient to show an intention in the testator to create a personal charge, while a devisa of any inferior interest, as an estate for life, is taken to indicate an intention to charge the land, and not the person of the devisee.

In construing wills, it is an universal rule that they are to be expounded favorably, and according to the intention of the devisor. When his intention can be ascertained, it shall prevail, however defectively it may be expressed.

In the will before us, John Docker does not declare, in terms, whether his son Jacob, on accepting the devise, shall become liable to the payment of the legacies, as a personal charge, or not. It is true, that in consideration of the devise, he requires him to pay the legacies to his brothers and sisters, and if we were confined to this part of the instrument, in ascertaining the will of the testator, we should be apt to conclude that the legacies were a charge on the person. The language is sufficiently strong and explicit, to sustain that interpretation ; but the whole instrument must be examined. One part may explain another, and it is from the operation of the whole that the parts are to receive a construction. On looking into the will, then, we find that these legacies are made payable by installments, and become due at different and remote periods. The testator does not profess to give Jacob a certain unqualified fee in the land ; but on the event of his death, without issue, the whole estate is limited over, in fee, to his brothers and sisters, including the legatees, to be equally divided between them. The land devised, is estimated in the will at eight thousand three hundred and fifty dollars. The legacies to be paid, nominally, exceed that sum, but are subject to a deduction of certain payments, made to the legatees, by *the testator in his life, which are not stated. It is, however, understood, that the difference between the value of the devise, and the sums to be paid, was the estimated proportion of the estate, intended for the devisee, so that if he had received a fee simple in the land, and had paid the legacies, he would have realized nothing more than his proper share of his father’s property. By the estimate of the devisor, the fee of the land, was a fair consideration for the sums to be paid by the devisee; and his liability to pay, was founded, and should depend, on the fact of his receiving such an estate. In 1823, Jacob Decker died, leaving a widow, but without issue, having paid all the legacies that had become due, previous to his death, at which time^ the land by the limitation in the will, passed to his brothers and’ sisters, including the legatees.

This is a concise view of the substance of the will, and of the ■ situation of the parties, and on these facts the question arises, whether the separate estate of Jacob Decker, shall be held liable to ■ pay the residue of the legacies, or whether they attach to and follow the land.

We are bound to admit, that the devise to Jacob, was intended for his benefit, and the will must receive such a construction as will not interfere with that intention. This rule precludes the inference of the defendant’s counsel, that the testator intended to secure two things: first, that Jacob should pay the legacies; and secondly, that the estate should be limited over to his other children. On this supposition, the devise was not only not beneficial, but would operate unjustly and iniquitously. It would in fact, be a devise by the father, of the separate estate of the son, to the amount of the legacies. Jacob would pay the legacies of his father, while, by the provisions of the will, they were enjoying in fee the estate out of which the payments were to be made, and which was to him the consideration of his liability to pay. This would be the result • of the construction which the defendants give to the will, in opposition to the admitted principle that any construction is to be rejected by which the devisee would be injured, and not benefited by the devise. On this ground it has been held that if land be devised to a person on his paying, or, so that he pay, or, on condition of his paying a sum of money, without words of *perpetuity, he shall not be considered as taking a life estate merely, but an estate in fee, because a life estate might determine, before the profits of the land amounted to the sum paid, in which case, the devise would be injurious to the devisee. 6 Johns. 192. On the other hand, it is held that if the payment be expressly charged on the land, the devisee shall take a life estate, because in that case he can in no event sustain a loss. Now, by the application of the same rule, and by a parity of reasoning, the payment of these legacies can not be considered at this time as a charge on Jacob personally, because it is settled that he took by the will only an estate for life, and by holding him liable to pay the legacies, which amount, probably to seven-eighths of the value of the land, he would be greatly injured by the devise.

The estate which Jacob took by the will, does not depend on. ■construction. The limitation over, is express and positive, admitting of no doubt. The only ground, therefore, for construction, Uhat can be occupied by the court, to give effect to the intention of the testator, is that which relates to the payment of the money, and the nature of the charge which it creates. The testator does not declare it to be personal, and the defendants claim it to be such, altogether on grounds of construction, but in violation of the rule we have just noticed.

So long as there was a possibility that the devisee could derive from the will an estate in fee, he continued to pay the legacies in good faith, to an amount far exceeding the value of any advantage he can have received from the temporary occupation of the land. On the ground, then, that the devise was intended for his benefit, his estate ought not to. be further responsible.

It appears to me to follow as a consequence, from this doctrine, that wherever the question whether a legacy to be paid by a.devisee is a personal charge or not, is not expressly settled by the words of the will, but depends on construction; a personal charge ■can not be inferred, unless the operation of the will be such as to secure to the devisee the advantage which is the consideration of such a charge, which, in this case, is a fee simple in the land devised. The question then arises, has Jacob Decker derived such an ^estate from his fatáer’s will ? The defendants do not pretend that he has. Under the limitation of the will, his estate terminated with his life, and from the moment that fact was ascertained, the legacies ought not to be considered as a personal charge, whatever might have been the construction, while the possibility of a fee was compatible with the limitations of the will. That possibility now has ceased. The operation of the will has been to give Jacob .a life estate only, and the responsibility of his representatives should be that'which is created by such an estate.

As the intention of the testator is the polar star by which we are to be guided, it may not be amiss to remark here, that it is impossible to examine this will without coming to the conclusion that the testator intended to secure to Jacob, at least, an equal share of his estate, with his other children; but such an intention is wholly inconsistent with the construction claimed by the defendants, as we have already seen.

But aside from these considerations, it appears to me that the intention and will of John Decker may be collected from the •language of the limitation, which provides that if Jacob should die without issue, the estate, “after the rest may have their legacies, shall revert back to the rest of my children, and their heirs, to be equally divided among them.” That is, if Jacob shall die without issue, the estate shall go to the rest of the children, after such of them, as are entitled to legacies, unpaid, shall have received their legacies. Now, if it was intended that Jacob should pay the legacies in any event, the payment, after his death, would not have been made a condition of the limitation. The estate would have passed immediately, and without condition, to the other children ; but they are to take it after the paj^ment ot the legacies is complete. They must take it, therefore, cum onere, or not at all. A devise made to a person, and his heirs, after paying a sum of money, implies a payment by the devisee, and the ■money to be paid, is a charge on the thing devised. Now, in this case, the limitation over is to the rest of his children, moaning all, except Jacob, after the rest may have their legacies, meaning by the term rest such of the legatees as should not have received their legacies, prior to the death of Jacob. Of course, so much’ of the ^legacies as remain unpaid, and had not become a personal charge on Jacob, at the time of his death, is secured, and by the term of the limitation over is made a charge on the land.

But another view may be taken of this question, which will lead to the same result. The devise is made to Jacob, “free and clear of any incumbrance, except as hereinafter mentioned.” This exception relates to the legacies, and to the limitation over, both of which are to be regarded, in ascertaining the rights and responsibilities of the devisee, because the devise, is, in terms, made subject to them both. When the will was made, and when it took effect by the •death of the testator, Jacob had no issue, and it was uncertain whether he ever would have any. It was, therefore, a matter within the calculation of the devisor, that the limitation would probably have its intended effect, and that Jacob’s interest might prove to be an estate for life only. With that impression on his mind, making the devise subject, not only to the legacies, but to the limitation over, he has virtually left the question, as to the nature of the charge of the legacies, an open one, to be decided when the extent of the incumbrance on the devise should be ascertained. And I confess that I do not see any incongruity, or inconvenience, resulting from this arrangement of the testator. If he bad said in terms, what he has said by implication, and what is certainly a fair interpretation of his will, that Jacob should pay the legacies as they became due, during his life, and that if he should die without issue, the residue should be a charge bn the land, no person would have doubted his meaning, or questioned his right to make such a disposition of his property, and if the rules of interpretation lead to that construction, it is the same thing as if the will had contained it in express words.

It has been remarked before that this is a novel case. It is, in. some respects, a case sui generi, to be settled by the application of general principles, without the aid of adjudications; but keeping in view the intention of the testator, and the principles by which devises are construed, we are satisfied that the legacies did not continue a personal charge, after the possibility of an estate of inheritance had determined, by the death of the devisee, and that from that time they *have been a charge on the land, in the hands of the legatees, to whom it was limited over by the will. Or, in other words, that these legacies were intended by the-testator, to be raised out of the land, and were not to be a personal charge till they should become due, and that they should then attach to the person, who might have the estate by the will.

The consequence of this opinion is, that the representatives of Jacob Decker can not be required to pay any part of the legacies, which had not become due and payable at the time of his death.  