
    
      Matthews Executor of Garnett v. Noel and Others.
    Decided, March 6th, 1817.
    1. Wills — Specific Legacies — Abatement*—Case at Bar. —A Testator directed that, after his debts were paid, all his slaves, &c. be furnished for three years from his estate, to raise certain pecuniary legacies, by working his plantation called Parmer’s Hall, which he then specifically devised: in such case, those Legacies were no farther chargeable on the slaves, &c. than on such part thereof as should remain after the payment of debts and expenses, of administration, and of a general charge on the estate by another clause in the Will; and therefore must abate so far, as the same were not raised within the three years, by the use of the said residue of slaves, &c. on the Parmer’s Hall Plantation: with liberty to sever, and apply to that use, any crops on the ground at the expiration of the said term of three years.
    2, Same — Same—Same—Accounts. — What D accounts ought to be taken in such case, before a decree, for payment of those legacies, ought to be pronounced.
    The Appellees, in August, 1815, filed their Bill, in the Superior Court of Chancery for the Fredericksburg District, against the Appellant and Robert Garnett; stating, that Henry Garnett, Testator of the Appellant, departed this life about August, 1811, having by his Will devised as follows: “After my debts being paid, that all my slaves, work creatures, plantation utensils, and provisions sufficient for their support annually, be furnished for three years, from my estate, to raise the sum of five hundred pounds for Nancy and Austin Garnett, children of Austin Garnett, (two of the Appellees,) and also five hundred pounds to be equally divided between the children of Robert Garnett, (the other Ap-pellees:) after that cum being raised by working the plantation called Farmer's Hall, I then devise the said plantation, one half to Robert Garnett, (one of the defendants,) and the other half to Nancy and Austin Garnett,” (the legatees before mentioned:) that, by the said Will, several persons were named Executors thereof, with a direction that no security should be required of 'them; and, oy a Codicil, the Appellant Thomas Matthews was also named an Executor: that the Executors named in the body of the Will refused to qualify, and the said Matthews alone took probate thereof, and was permitted by Essex County Court to qualify without security; that he as Executor possessed himself immediately of all the real and personal estate of the Testator, claiming to hold the real estate, and especially the plantation called “Farmer’s Hall” in virtue of the clause aforesaid: that he hath sold off the perishable estate ■of considerable value, and had ever since retained all the real estate, negroes, &c. and received all their profits: that the three years mentioned in said clause had elapsed, and that much more tnan a sum sufficient to pay the said legacies, had been raised by working the said plantation called Farmer’s Hall; that, though this was the case, the Appellant had not paid any part of the legacies, and, though frequently required to surrender the said plantation to the devisees, in order that partition might be made, he still retained the possession of it: *tbat the Appellants had misapplied the profits ■of the real and proceeds of the personal estate; that he had little or no estate, and was unable to reimburse the sums, so misapplied, to the parties entitled thereto.
    The prayer of the Bill was, that the Appellant might be restrained from receiving the future profits of the estate, unless he gave ample security for the faithful application of them; that he might be compelled to surrender the estate called Farmer’s Hall, in order that partition thereof might be made, according to the direction of the Will, between the plaintiffs Austin and Nancy, and the defendant Robert Garnett; that he might render an account of the profits thereof, and be decreed to pay the plaintiffs their respective legacies aforesaid, with interest from the time they ought to have been paid; and for general relief.
    To this Bill, the Appellant filed his answer, admitting most of the allegations, but controverting the construction of the Will contended for by the plaintiffs : stating that he had been advised that the proper construction thereof was, not that the plantation should be worked, &c. for three years after the Testator’s death, but for and during three years after the Testator’s debts were paid; and, as the debts had not been paid, the defendant had continued the cultivation of the estate; denying that he had been able to raise a fund sufficient to pay the debts and legacies; and alleging that, in consequence of the Embargo and the War, but little profit had been made from the estate.
    The plaintiff’s replied generally to this answer. The Bill was taken for confessed as to the defendant Robert Garnett.
    In the Will of the Testator, (which was made an Exhibit in the cause) there was a provision that Hannah S. Neale should “have liberty to live in the mansion house, to have full use of all the land, houses, &c. from the cross fence, running from Rydia Brook’s to the White Oak Swamp, during the term of three years; that, (after raising the legacies to the plaintiffs,) Maria, Washington, and Fenton Mariner, a son and daughters of Anne Mariner, should have, in young negroes, to the amount of five hundred pounds, &c. ; that, if, from his personal estate, more money was raised than would discharge his debts, it be laid out in lands of young negroes, *as might be judged best by his Executors, for the interest of his legatees, &c. ; that Hannah S. Neale be furnished with a sufficient quantity of stock for her use, and the use of her family; that every necessary be furnished her by his Executors, so that she might never want, and that, whatever timber she might want, and firewood, be furnished her from the rest of his lands.”
    An account of the Appellant’s Executor-ship, made out by Commissioners, appointed by the County Court of Essex since the institution of the suit, and approved by that Court, was also exhibited; according to which, it appeared that the Appellant had sold produce from the estate to the amount of upwards of 20001. which he claimed to have disbursed in the payment of debts, and some legacies, particularly that to the Mariners; and a balance of 3391. 15s. 3d. appeared to be due from the estate to him.
    Sundry affidavits were read, on the hearing, without exception. The principal facts proved, were that the Appellant had very little property; that Farmer’s Hall was a valuable and productive estate ; the smallest estimate of its annual product being 500 barrels of corn, and 700 bushels of wheat; and that the Testator had a large personal estate, there being fifteen crop hands, &c.
    Chancellor Nelson decreed, that the Appellant should, after the 1st of January, 1817, surrender the estate called Farmer’s Hall, to certain Commissioners, for the purpose of partitioning the same between the plaintiffs Nancy and Austin, and the defendant Robert Garnett, according to the directions of the Will; that he should pay to the plaintiffs the legacies, that by the Will were to be raised by working the said estate called Farmer’s Hall, with interest thereon from the date of the decree; “it being manifest from the account he exhibited, that more than the amount of those legacies had been so raised;” that a Commissioner should take an account of the monies so raised, for the purpose of ascertaining the time, when the amount of them reached to 10001. and inquire what was a reasonable rent of the said estate, since the said sum was so raised; reserving to the plaintiffs the liberty of applying for a decree, (when the account should be reported,) for an equivalent for the interest on their respective legacies, from the time *'they should be thereby shewn to have b^en raised, to the time from which interest was by the decree given thereon.
    From this Decree an appeal was allowed by this Court, on petition of the Appellant; in which petition, the decree was alleged to be erroneous, for the following reasons:
    1st, Because, by the terms of the Will, the lands, slaves, &c. were to be worked three years after the debts mere paid; plainly importing that the debts were first to be paid.
    2d, Because, even if the Will admitted of a different construction, the slaves, stock, &c. were assets in the hands of the Executor, for the payment of the Testator’s debts, and their profits ought by law to be applied to the discharge of debts, even contrary to the intention of the testator, if he had intended to prefer his legatees to his creditors.
    3d, Because, if these profits had been improperly applied to the payment of debts; yet, as those debts were all of them chargeable on the personal estate, and many of them chargeable on the real, the Executor, being defendant in Equity, was entitled to stand in the place of the creditors, whose claims he had satisfied.
    4th, Because it was evident that the Executor acted for the benefit of all parties, by keeping the estate together, instead of selling the personal property, as he ought to have done, for the payment of debts, in which event there would have been no fund for the legacies claimed by the plaintiffs.
    Sh, Because, on the principles contended for by the plaintiffs, no decree for the payment of any sum of money, or for delivery of possession of the land ought to have been rendered, until an account was taken of the Executorship, that it might appear how much of the mixed fund, consisting of the profits of the lands, slaves, &c. was to be credited to the lands; how much to the slaves and other personal estate; and what fund there was for the payment of the other legacies.
    The Petitioner also submitted a question, whether the other legatees, who were concerned in interest, ought not to have been parlies.
    Wickham for the Appellant,
    argued in support of these positions; and, in discussing the third point, referred to Eppes v. Randolph, 2 Call, 125 — 190; Tinsley v. Anderson, 3 Call 329 — 333; *'and Poster and Wife v. Crenshaw’s Executors, 3 Munf. 514 — 521.
    Stanard, for the Appellees,
    insisted, 1st, That by the Will, there was only an implied charge on the estate called Parmer’s Hall, for the payment of debts; a charge, which operated on the land in the hands of the devisees, in the event, that the personal estate proved inadequate to the payment of debts, but did not put the said estate into the hands of the Executor, that its profits might be applied to exonerate the personal ' estate from the payment of debts.
    
    2d. The Appellant was not entitled under the Will to hold the estate called Parmer’s Hail for any purpose; (unless to-take the crop growing at the death of the Testator;) the effect of the Will, on a sound construction of it, being to charge the land, in the hands of the devisees, with the 10001. to be raised from it, with the assistance of such of his negroes, work creatures, &c. and provisions for their support, as, after the payment of debts, could be furnished for that purpose.
    3d. If the Executor, had, under the Will, any interest in or control over the said estate, it was limited to the object of raising the 10001. for the legacies, and to the time of three years for the attainment of that object.
    4th. Even if the Executor could hold the estate longer, than three years, to raise the 10001. yet it was competent to the Court of Chancery, without the interposition of an account before a Commissioner, to inquire into and ascertain the fact whether it had been raised; and, as the account he exhibited, shewed, manifestly, and on its face, that a much larger amount, than that sum, had been raised, it was proper for the Court, this fact being so ascertained, to decree as well payment of the legacies, as the surrender of the land ; especially under the circumstances that the Executor was of very limited responsibility, and the account and evidence shewed many acts of maladministration.
    5th. As to parties, it appears from Coop. Eq. p. 39, that all the Eegatees need not be parties, except where a residuum is to be divided.
    
    
      
      See generally, monographic note on “Legacies and Devises” appended to Early v. Early, Gilm. 124; monographic note on “Wills” appended to Hughes v. Hughes. 2 Munf. 209.
    
    
      
       Bowdler v. Smith, Prec. Cb. 264; Tompkins v. Tompkins, lb. 397; Hazlewood v. Pope, 3 P. Wins. 324; Bicknell v. Page, 2Atk. 79; Bridgeman v. Dove, 3 Atk. 202; Earl of Inchiquin v. French, Ambl. 33; Duke of Ancaster v. Mayo, 1 Bro. Oh. Rep. 454.
    
    
      
       Note. See also Branch’á Adm’x. v. Brooke’s Adm’r, 3 Munf. 43.
    
   *March 6th, 1817,

JUDGE ROANE

pronounced the Court’s opinion.

“The Court is of opinion, that the debts of the Testator were not to be paid out of the profits of, or chargeable on, the real estate, in exoneration of the personal.”

“The Court is farther of opinion, that the legacies of 5001. to the children of Austin Garnett, and the like sum to the children of Robert Garnett, were no farther chargeable on the slaves, and other personal estate, directed to be used on the plantation called Farmer’s Hall, than on such part thereof as should remain, after the payment of debts and the expenses attending the administration, and after a sufficient provision being made for the use of Hannah S. Neale and her family; and that those legacies must consequently abate, so far as the same were not raised, within the term of three years limited therefor, by the use of the said residue of slaves and personal estate, and the Farmer’s Hall plantation aforesaid; which term of three years ought not to commence until the 1st of January, 1812; with liberty to sever, and apply to that use, any crops on the ground at the expiration of said Terra, after which, the Appellant should be answerable to the devisees of that plantation for a reasonable rent, until the same is delivered up.”

“The Court is farther of opinion, that there is no error in so much of the Decree of the Chancellor, as directs a surrender of the said plantation, and a partition thereof; but that so much of the said decree, as directs the legacies aforesaid to be paid before the proper accounts were taken, and the residue thereof, so far as it may conflict with the principles hereby established, is erroneous.”

“The Decree therefore, so far as it is thus declared to be erroneous, is reversed with costs, and the residue thereof affirmed ; and the cause is remanded to the said Court of Chancery, to have accounts taken, as well of the Administration, by the Appellant, of the goods of his Testator, as of the proceeds of the Parmer’s Hall Plantation, and excess of the slaves and personal estate aforesaid; (in which latter account, the Appellant must have credit for a reasonable hire for such of the slaves, and other personal estate, used on said plantation, as he would have been justified in selling for the payment of debts, and his commissions as Executor, or in hiring out, to *raise the provision to be furnished Hannah S. Ñeale and family ; for both which purposes, the Commissioners are to set apart a sufficient fund; the hires of which slaves, and other personal estate, are to be credited as aforesaid, and charged to the Appellant in his Administration account;) and to be farther proceeded in, according to the principles above declared, in order to a final decree.  