
    HILTON ET AL. vs. HILTON ET AL.
    In Equity. —
    No. 3632.
    I. A devise in a will “ of all that part of lot eight (8) of Davidson’s subdivison of square two hundred and fifteen, (215,) fronting on Fourteenth street west, between L and M streets north, with the improvements; that is to say, one-half of the said lot and improvements to the said Carberry S. Hilton in fee-simple, and the remaining half, as he may choose, to him, the said Carberry S. Hilton, in trust for the sole use and benefit of his said children, John Percy Hilton and Henry Slicer Hilton, in fee-simple to be equally divided between them,” was construed to carry the whole of the lot and not merely the half.
    II. Where the will directs all the estate to be sold by the executors for the payment of legacies, and the several legatees are named, and the amount each is to receive specified, the personal estate first is to be exhausted, and the reaj estate is to be resorted to only to make up for any deficiency of the personal for these purposes. To the extent that it is not needed, it or its proceeds go to the heirs at law when the will does not otherwise dispose of it.
    III. In case there is a direction to sell the real estate for the purpose of paying particular legacies it is not a conversion of the real property into personalty, except for that purpose and extent.
    STATEMENT OF THE CASE.
    The complainants filed their bill in this cause, praying for a construction of the will of the late John P. Hilton, and for the purpose of declaring the trusts. The portion of the will necessary to be considered reads as follows:
    “ Item: As soon after my decease as possible, I direct that my debts and funeral expenses be paid out of any portion of my estate which may first come into the hands of my executors hereinafter named.
    “ Item: Secondly, I direct that all of my estate, except such as is hereinafter otherwise devised and bequeathed, be sold by my executors, at as early a day as practicable, upon such terms and conditions as may seem best in their judgment for the best interest of all herein concerned, and that the proceeds arising therefrom shall be divided in the following manner and proportions, as they are first herein named, written, •and stated, as far as the amount realized from the sale of my said estate will allow, viz :
    “ Item : I give and devise unto my kind and obedient son, Carberry S. Hilton, and my grandchildren, John Percy Hilton and Harry Slicer Hilton, sons of Carberry S. Hilton, all that part of lot eight (8) of Davidson’s subdivision of square two hundred and fifteen, (215,) fronting on 14th street west, between L and M streets north, with the improvements$ that is to say, one-half of the said lot and improvements to the said Carberry S. Hilton in fee-simple, and the remaining half, as'he may choose, to him the said Carberry S. Hilton, in trust, for the sole use and benefit of his said children, John Percy Hilton and Harry Slicer Hilton, in fee-simple, to be equally ■divided between them.”
    Then follow twenty-four pecuniary legacies, amounting in the aggregate to $14,900, including the following legacies to the plaintiff’s children:
    To Annie T. Smith, for self. ..................... $2,500
    To Annie T. Smith, for her children................ 1,000
    John Emory Hilton................... 2,000
    John Emory Hilton’s children..................... 2,000
    Laura R. Morsell’s children........................ 2,000
    For self......................................... 500
    Then follows this clause:
    “Item: I give and bequeath unto my kind, affectionate son, Carberry S. Hilton, all the rest and residue of my estate of which I may die seized and possessed which is not herein otherwise devised and bequeathed, such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description, and not herein otherwise disposed of, for his sole use and benefit and that of his children.”
    “Item: I direct that the rents accumulating from my estate, until such a time as my executors shall have disposed of the same, shall be distributed as follows: After deducting all expenses for repairs, taxes, and insurance, the same shall be equally divided among my four children; namely, Carberry S. Hilton, Annie T. Smith, John Emory Hilton, and Laura R. Morsell.”
    
      The cause was certified to the general term to be heard in. the first instance.
    
      Samuel L. Phillips and John J. Johnson for complainants.
    ESTATE OP THE EXECUTORS.
    This will conveys to the executors an estate in all the decedent’s property, coupled with the trusts of paying the debts and legacies.
    This has been expressly ruled in a similar case of Taylor vs. Benham, 5 How., 267.
    EXTENT OP THE POWER OP EXECUTORS.
    The trust reposed by the testator in the executors gives them the power only to sell sufficient of the estate to pay the debts and legacies, notwithstanding the whole estate is devised for that purpose. Because—
    1. It is a general rule that although an entire property is. made chargeable with legacies and debts, still no more will be allowed, as a general rule, to be sold than is adequate for this purpose, unless a clear intent of- the testator is shown.
    Thus it has been held that “ a power to sell given to an executor becomes imperative when the estate is settled or all claims are presumptively barred by lapse of time, and so-where no object remains tobe accomplished, or such object has become impossible.”
    
      Jackson vs. Jansen, 6 Johns. R., 73; 3 Cowan, 651; 22 Ohio,. 211; 1 De G., M. & G., 635.
    “In this view, the purposes of the testator must be ascertained from the whole will, and the objects of the power must be considered in connection with the power itself.” Ibid.
    
    “ Where the objects of the trust are accomplished, the trustee may be enjoined by a court of equity from selling, and an interlocutory injunction will be continued in such a case, notwithstanding a denial in the answer, if the case is doubtful, on the ground of irreparable injury.” (Neely v. Steel, 1 Bev. Eq. R., 240.) The executors cannot sell any more than will be necessary to pay off the legacies remaining after the personal property shall have been exhausted. In support of this proposition, we cite the court to 6 Wall., page 471, Doe, 
      
      Lessee of Poore, vs. Considine. Mr. Justice Swayne, in delivering the opinion of the court, in speaking of the. purposes and objects for which trustees act, says: “And when they are satisfied, the estate of the trustee ceases to exist, and his title becomes extinct. The extent and duration of the estate are measured by the objects of its creation; ” and cites, among* others, the case of Webster vs. Cooper, 14 How., 499. Mr. Jarman says: “ Trustees take exactly the estate which the purposes of the trust require.” And Chancellor Kent, in his 4th Com., says: “The general rule is that a trust estate is not to continue beyond the period required by the purposes of the trust; and notwithstanding the devise to the trustee and their heirs, they take only a chattel interest where the trust does not require an estate of higher quality.” In Cordal’s case, Cro. Eliz., 316, it is stated that if lands be limited by deed, to hold for the paymeut of debts or of such legacies as the grantor may give in his will, the grantee would take a feehold conditional, determinable on the receipt of sufficient moneys out of the land for the purposes of the trust. While treating of this subject, we crnuot refrain from citing the case of Jackson vs. Harris, in 8 Johns., 144. Mr. Justice Spencer, in delivering the opinion of the court, says: “The will gives the premises by these words: ‘also to my beloved son, Harry Harris, I give and bequeath all this certain lot of land which I now possess, and is known by No. 136, together with all my farming-utensils, and likewise stock belonging to my estate; ’ then, after some specific legacies, are those words, ‘all these several legacies, before mentioned, are to be paid the first of May, 1805, all of which is to be raised and levied out of my estate.’” This learned judge says: “Some stress was placed on the word ‘all,’ in the devise of the premises to Henry, to show that such a word is to be taken as descriptive of locality and not of interest. We are of opinion that Henry Harris took only a life-estate in the lauds. The charge here is on the testator’s estate generally, and it imports his property, his estate, as well personal as real.” The learned judge further adds: “ If the personalty, there is no intent shown on the face of this will that the executors should sell the whole of the estate irrespective of the necessity to pay the charges imposed upon it.”
    
      This intent is never deemed, as shown from the mere fact that all of the testator’s estate is devised to be sold to pay debts and legacies. The testator at the time of making his will is uncertain how long he may live, how much of the estate may be consumed in the interval, and, as a consequence, how far it will be ample to meet his bequests. This uncertainty is exhibited in this particular case by the fact that this testator declares that the legacies shall be paid in the order named, and “as far as the amount realized from the sale of my estate will allow, viz : ” The sole object of the testator was the payment of the bequests “ as far as the amount realized from the sale of his estate will allow, and for this purpose, and this alone, he directed the estate to be sold and the whole of it, if necessary.” The fact that the whole of it was to be sold, if necessary, for the above purpose, is no evidence of intention that it all should be sold, if it should be found ununnecessary. Besides, if the testator intended thatno legacies should be paid at all events, it was necessary for him to direct that his whole estate should be sold, for if he had not, the legacies would only have been payable out of the personal property of the decedent, and would have been no charge whatever on his real estate.
    Any intention of the testator to cause all his real estate to be sold irrespective of the payment of the legacies, is further rebutted by the fact that the second clause and the next to the last clause, which clearly show that a propitious sale without regard to the charges of the will was not contemplated, and that the rents of the entire estate were to be equally divided among the entire children until the property should be sold; and that this sale might never be necessary, for the executors were to keep the property from waste by repairs, and to pay such annual assessments as taxes and insurance; things which only are necessary in the event of the expiration of long periods of time.
    If it had been his intention to withdraw entirely his real estate from his children and subject it to sale in order to create a fund of personalty and not to liquidate the legacies, he would not have devised the rents accruing in the mean time prior to sale, but would have subjected the real estate from the date of his demise also to their payment, and thus have carried the rents as well before the sale as the proceeds of sale themselves.
    It is therefore apparent that the only intention of the testator in declaring that “ all of my estate be sold by my executors at as early a day as practicable, upon such terms and conditions as may seem best in their judgment for the best interest of all herein concerned, and that the proceeds arising therefrom shall be divided in the following manner and proportions, as they are first herein named, written, and stated, as far as the amount realized from the sale of my said estate will allow,” was that all the estate should be sold for the payment of these bequests, and nothing else. Indeed theforegoing languageimportsthis was hissole object, because he declares that “ the proceeds arising therefrom shall be divided” in their payment, and this is the only purpose declared in any part of the will. The effect of the other construction, namely, that all the real estate should be sold irrespective of its necessity to pay the legacies, would be to create a fund of personalty which is nowhere declared in the will; and that, too, in opposition to the purpose which the testator has himself stated, viz, the payment of the legacies, and also in direct contravention of the devise of the intervening rents.
    It is therefore submitted that the executors have power to sell any and all the undevised real estate of the testator to the extent of liquidating every debt and legacy, but no iuither.
    RESIDUARY CLAUSE IN EAVOR OE DEEENDAN'IS.
    This first residuary clause under which the defendant must make claim, or not at all, to the exclusion of his brother and sisters, is as follows :
    “ Item: I give and bequeath unto my kind, affectionate son, Carberry S. Hilton, all the rest and residue of my estate of which I may die seized or possessed, which is not herein otherwise devised and bequeathed, such as moneys, bonds, stocks, judgments, notes, household furniture, and personal effects of every description, and not herein otherwise disposed of for his sole use and benefit and that of his children.” Is this a devise of realty or bequest of personalty ? The rules of law governing its interpretation will be best exhibited' by the following authorities: 7 Eng. C. L. R., 8 ; Barnes vs. Patch, 8 Ves., 604; 9 Ves., 136, 6 Term R., 610; 1 Pet., 585 ; 36 Me., 211; Cowper, 299; 32 Miss., 116; 2 L. and Eq., 210; 6 L. and Eq., 715 ; 7 Common Bench, 91; 2 Atk., 102 ; 18 Pick., 539 ; 2 P. Williams, 335 ; 8 Ves., 607; 11 East., 163; 2 Greene, 53; 1 Spencer, N. J., 246; 1 Bos. Pull., New York Rep., 214; 1 Rawle, 408; 5 Barn. and Ald., 18 ; 5 Taunton, 238 ; 6 Barn. and Cr., 513; 14 East., 370 ; 4 Gray, 193 ; 17 Beavan, 210; 20 Ib., 147; 7 Taunton, 79 ; 9 Ves., 142; 9 E. L. and Eq. R., 196; 39 Ib., 78; 20 Pich., 256; 2 Ves. Sr., 51.
    Notwithstanding this array of authorities, in many instances almost identical with the present will, it is claimed by the defendant that this clause is a devise of the entire residue of the testator’s estate, after payment of the legacies, and that because the words “estate” and “seized” are used — words ordinarily applicable to real estate. But under the most favorable circumstances the word “estate” is equally descriptive, as we have seen, of personal property, and, when defined by the evident intention of the testator, will be restrained to personal property alone. It is true that the word “seized” is in strict legal parlance ordinarily applied exclusively to the possession of real estate, but how many testators are there, dying mops ooneilii, but what will use the word “seized” as entirely synonymous with “possessed?” If such literal criticisms are, however, to be introduced in opposition to the general scope of the will and its substantive provisions, it may be mentioned in this connection, as an offset, that throughout the entire will and in thirteen instances, when the testator is giving a legacy, he used the appropriate phrase to carry personal property of “I give and bequeath,” and in the one instance where he gives to the defendants specific real estate, he uses also the professional expression, to carry such real estate, of “I give and devisewhile we find in this residuary clause under discussion the same exact legal language to carry only personal property, namely, “I give and bequeath,” and the same, too, wnich he had invariably employed in the many preceding portions of the will when he was conveying only legacies or personal property.
    So, again, if we compare the phraseology adapted to pass real estate in the specific devise of a portion of lot 8, square 215, to the defendant Carberry and his children, with that employed in this bequest, we find in the former that the lot is devised to them “in fee-simple,” while in this residuary clause, having in his mind that only personal property was to be given, which required no words of limitation to carry the entire interest, we find that no such words were used. These criticisms, we submit, are of far more value than any professional or technical signification of the words “seized” or “ estate,” because the testator has shown by the other clauses of the will that he knew the difference between the words “bequeath” and “devise” and between the expressions “fee-simple,” necessary to convey the absolute title of real estate, and no words of limitation when personal property alone was given. Indeed, we shall see that the testator himself was afraid of the general signification of the word “ estate,” and therefore specially confined it within the limits of his intention by the plainest language. The clause is “I give and bequeath unto my kind and affectionate son Carberry S. Hilton all the rest and residue of my estate of which I may die seized aud possessed, which is not hereinbefore otherwise devised and bequeathed, such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description not herein otherwise disposed of, for his sole úse and benefit and that of his children.” If there can be any limitation of the general signification of words, we claim that this testator has so expressed himself in this clause. In other words, the testator himself defines his meaning of the word “estate,” by saying that this term shall carry things, “such as moneys, bonds, stocks, judgments,” &c., articles of personal property exclusively. The abundant authorities cited above show how similar bequests have been interpreted by the courts. To give a more extended signification than the testator’s own definition in making this bequest, to carry real estate, would be doing, it is submitted, palpable violence to his wishes, and in effect be establishing a will in direct opposition to the plainest expressions of the English language.
    Besides, there is no general overruling intent manifested in any part of the will to justify such a construction. On the contrary, as will be seen further on, the restriction of this residuary clause to a bequest of personal property is the only hypothesis under which all the provisions of the will can be harmonized.
    As another internal evidence arising out of the phraseology of this same clause and independent of the definition given by the testator himself of the word “ estate,” it may be important to mention that he says, “of all the rest and residue of my estate of which I may die seized or possessed, which is not herein otherwise devised and bequeathed, * * * I give and bequeath,” &c. Of what property was he here speaking as having “herein otherwise devised and bequeathed ” ? The testator had already, in the first part of his will, conveyed his estate to his executors, in trust, to sell all of it, if necessary, for the payment of his legacies, and which event bethought might be necessary in the uncertainty of the future. This direction to his executors to sell was, as decided in Taylor vs. Benham, 5 How., 267, not only a naked power of sale, but one coupled with a trust, which necessarily vested in them the title of the estate to an extent sufficient to enable them to transfer it from themselves and vest it in purchasers. With this idea in view, namely, that he had practically devised all his real estate to his executors to pay legacies, and which, by the way, is the controlling intent of the will, he says “ of all the rest and residue of my estate * * * which is not herein otherwise devised and bequeathed * * * . I give and bequeath,” &c., thus again showing that personal property was exclusively the subject of his thought in penning this clause.
    EQUITABLE CONVERSION OR THE REALTY INTO PERSONAL PROPERTY.
    But the defendants may attempt to escape the force of the foregoing reasonin g by saying, “ True, we admit that this residuary clause carries only personal property, but the testator, by ordering the realty to be sold, converted it in equity into personalty, and under that category it passes to the defendant; the rule in equity being that which is ordered to be sold will b‘e considered as already sold, and a part of the personal estate.” But while this is true in some instances, it is not universally so. It is only true where such is evidently the intention of the testator, and is necessary so to be considered in order to carry out the purposes of the will. It is never true when it would be in opposition to its manifest intent. For example, although land may be directed to be sold for the purpose of paying legacies or charges, yet the personal property of the testator will nevertheless be the primary fund for their payment, and the land pass to the heir at law as land, if the personal assets are sufficient for the charges. Perry on Trusts, §§ 566, 567. So here, although the real estate may be ordered to be sold, under certain circumstances, if those events do not arise, it will still be land in contemplation of law, and pass to the devisees. In this will the land was directed to be sold for one special purpose, namely, the payment of legacies. If that necessity never arose, the laud, as we have already seen, was in reality never ordered to be sold. But, for this doctrine of equitable conversion to be of any value to the defendants, it must appear that the testator intended the land to be sold so as to become a part of his personal estate, for the purpose of passing by the residuary bequest of the personal property. No such intention, however, appears. The phraseology of this residuary bequest evidently points to personal assets on hand at the time of his death, and not to what might become such by operation of law. Besides, the testator expressly declares for what purposes the land is to be sold, namely, the satisfaction of legacies. No other purpose is intimated. What right have we, then, to say that the testator had another and different purpose in mind, namely, the creation of a fund of personalty, so that it might pass by a residuary bequest, when the testator could so easily have declared that his real estate should also pass by this bequest, as well as his personal property. If be meant that the surplus of all his real estate should pass to the defendants by this clause, then he has been guilty of such folly in the disposition of his estate that a man who was as successful as the testator was in accumulating it, rarely exhibits.
    To give such a construction would make the court sell all the real estate, choice investments, which the growth of Washington showed the testator could not be surpassed, at an executor’s sale, where property never brings its value, with, the proceeds of sale further diminished by advertisements and executors’ commissions, all for the purpose of turning it into money, which the defendants would not know what to do with when they received it.
    It cannot, we repeat, be supposed that the testator intended to change all his real estate into personalty for the purpose of giving it to the defendants as personalty, when to do so would so materially diminish its value, and while at the same time he could, by the stroke of his pen, have declared the defendants to be residuary devisees of all his undisposed-ofreal estate. When he wished to give them real estate, he knew bow to do it, as will appear by the specific devise of part of lot 8, square 215. But, on the other hand, by the clause next to the last, the land was not looked upon as personal property by the testator, to pass at the time of his death to the residuary legatees, but as land, the rents and profits of which he declared was to be enjoyed by all his children, until a sale was necessary to pay principally their own legacies, and to continue as land; for the executors were directed to pay taxes and insurances, annual payments, and to keep the property in repair when waste in the course of time should overtake it. Any such stretching of the doctrince of equitable conversation, which is simply a rule of intention, would be a violation of the plainest intent of the testator, and render the larger portion of his will entirely different from his allowed wish. Besides, to give such efféct, the residuary clause bequeathing the personalty would be directly antagonistic to the clause devising these rents. For the first clause, to be a devise of land, would also be a devise of the rents, and carry them to the defendants; but we find the testator, immediately after this residuary bequest, declaring that the rents should be equally divided among his children. This construction is, therefore, flatly contradicted by the testator himself.
    PLAINTIPPS AND DEPENDANT CARBERRY S. HILTON ENTITLED TO THE SURPLUS REAL ESTATE AS RESIDUARY • DEVISEES.
    If the foregoing propositions express correctly the intent of this testator, namely, that the executors have conveyed to them an interest in the entire estate, with power to sell sufficient for the payment of the debts and legacies, and that the defendants are simply residuary legatees of the personalty, the question arises what becomes of the surplus of the real estate ? Let it be remarked, in the first place, that prima Jade every child stands equal in blood, and by the ties of nature ought, unless a plain and manifest intent appear to the contrary, to be entitled to an equal portion of the patrimony of the father, who by his voluntary act brought him into existence. This father did not, in his last days, forget this highest of all duties. The next to the last clause of the will says: “ Item: I direct that the rents accumulating from my estate, until such time as my executors shall have disposed of the same, shall be distributed a.s follows: after deducting all expenses for repairs, taxes, and insurance, the •same shall be equally divided among my four children, namely, Carberry S. Hilton, Ann S. Smith, John E. Hilton, and Laura E. Morsell.” This is, in legal effect, a residuary devise of the real estate remaining after the satisfaction of the legacies. In Wright vs. Barret, 13 Pick., 44, Chief Justice Shaw, in delivering the opinion of the court, says: “ It is well settled that a grant or devise of an interest in growing woods is an interest in the soil itself.” In 35 Me., 414, it is held that a devise of the net profits of land is, by legal intendment, a devise of the land itself.. So a direction by the testator that A. B. shall receive for his support the net profits of the land, is a devise of the land itself. So, also, in Comyn’s Dig., under Devise, n. 1, p. 400, it is stated, if a man devises the rents and profits of land, the land itself passes; and in support of this proposition we refer to 4 Kent’s Com., 536; and Roberts on Wills, 401, 402,529. In Reed vs. Reed, 9 Mass., 372, a devise of the income of real estate conveys the land. But a still stronger case than any quoted is found in Andrew vs. Boyd, 5 Me., 199, where it is held that the income of an estate means nothing more than the profits which it yields, after deducting the charges of management, and the devise of one-third of the net income, was a devise of one-third of the land. And it makes no difference whether the words used are rents and profits, income, net income, profits, or use. In Parker vs. Plummer, Cro. Eliz., 190, it is stated: for to have the issues and profits and to have the lands is all one. Also, we refer to 35 Me., 419, in Earl vs. Rowe, where Chief Justice Shepley says the rule is well established that any terms equivalent to these have been regarded as a devise of the estate. And Mr. Redfield on Wills, at p. 329, says: “ Devise of rents of an estate is held to pass the fee.” This proposition is fully discussed and elaborated in 1 Jar., 756, and cases cited; 63 Penn., 170; 37 Penn., (1 Wright,) 105, where the word used was income; 1 Allen, 223; 6 Johns. Ch. 70.
    LOT 8, SQUARE 215.
    “Item : I give and devise unto my kind and obedient son Carberry S. Hilton and my grandchildren * * *- all that part of lot 8, of Davidson’s subdivision of square 215,, fronting on Fourteenth street west, between L and M streets north, with the improvements; that is to say, one-half of the said lot and improvements to the said Carberry S. Hilton in fee-simple, and the remaining halt, as he may choose to him, the said Carberry S. Hilton, in trust, for the sole use and benefit of his said children * * * . in fee-simple, to be equally divided between them.”
    Does this devise carry the whole of lot 8 ? If so, then the testator has not said what he intended. In express words he declares that it is a part of the lot he desired should pass, and is so particular that he defines the part, rendering certain by his own description what would have otherwise been a void devise for patent ambiguity. The part does not include the-whole, and the question at once arises, what part of the lot did the testator refer to ? There are no subdivisions of this, lot on the records of the city authorities; there are no subdivisions of deed. But there are visible subdivisions of the property made by the testator himself; and by consulting these the provisions of the will are all satisfied, and the devise made operative and harmonious. Now let the court, as it should, place itself in the situation of the testator and then judge what was his intention. No other explanation than assuming he referred to his own subdivisions will explain his devise, and we therefore contend that only that part of lot 8 fronting on Fourteenth street west, and marked on the plat as Exhibit No. 2, has passed to the devisees under the devise just read, and that the residue of said lot fronting on Vermont avenue and the public reservation is subject to the power of sale vested in Oarberry S. Hilton and John T. Given, as executors, coupled with the trust of payment of all the debts and to a full discharge of the legacies; but that, so far as the same may not be required for the purposes of paying the debts and legacies, then it belongs to the plaintiffs and the defendant, Oarberry S. Hilton, as residuary devisees of the entire estate. This construction has also the merit of an approximation to equality among the children, although even then the defendant, Oarberry S. Hilton, will take by this part of the lot more in value than the most favored of the other children do by their legacies.
    
      William F. Mattingly for defendant, Carberry S. Hilton :
    This defendant claims that the testator, by directing that all his estate should be sold by his executors, converted his real into personal estate, and that the residue, after payment of debts and legacies, goes to him as residuary legatee.
    1st. The general principle is, that when a testator directs his real estate to be sold, it is to be considered as personal estate.
    2d. When the direction to sell is simply to pay debts and legacies, and there is no residuary legatee, then the heir takes the surplus in preference to the next of kin.
    3d. When the direction to sell is for all purposes, out and out, and there is no residuary legatee, then there is no resulting trust for the heir, and the surplus goes to the next of kin.
    4th. When the direction to sell is absolute, and not merely to pay debts and legacies, then a lapsed or void bequest goes to the residuary legatee and not to the heir at law.
    5th. In the last class of cases, when one of several residuary legatees dies during the life-time of the testator, his interest goes as a resulting trust to the heir at law.
    6th. When the real and personal estate are blended together, the whole directed to be sold, and the proceeds applied to the payment of legacies, followed by a bequest of all the residue of his personal estate, then that residue, whatever it is, goes to the residuary legatee. And I do not think that a single authority can be found which decides that in such a case there is any resulting trust for the heir at law.
    The following authorities will illustrate the above propositions: Malabar vs. Malabar, Talbot, 78. The testator, Thomas Malabar, devised all his lands, &c., to his sister Ester, her heirs and assign, in trust, to sell, "as soon as conveniently can be after my decease,” and out of the proceeds, after payment of debts, several specific legacies are to be paid, including a bequest of £500 to his heir at law and then follows the residuary clause, “ Item: After my debts and legacies paid as aforesaid .and subject to the same, I give and bequeath all the rest and residue of my personal estaite unto my said sister Ester Malabar, whom I do hereby constitute and appoint sole executrix of this my last will and testament.” It appeared in the case that the testator also had personal estate. The lord chancellor held that there was no resulting trust for the heir, and that the executrix should have the whole residue both of proceeds of real estate and the personal estate. 1 Russ. & M., 503, Byam vs. Munton. When the testator blends the proceeds of sale of real estate with personalty, the whole passes under residuary bequest of the personalty. 4 Md. Ch., 251, Carr vs. Ireland. The testator devised all estate, real and personal, to his wife for life, and after her. death directed his executrix to sell his real estate and to pay each of his three grandchildren $1,000. The proceeds of sale of the real estate was much more than sufficient to pay the legacies; and the auditor of the court held that the conversion was only to the extent of the legacies. The court overruled the auditor, and held that the conversion was out and out, and that the residue should be distributed as personalty. Ibid., 543, Maddox vs. Dent. In this case land was directed by the testator to be sold. On a creditor’s bill the proceeds were treated as personalty, and it was held that the heirs were not' necessary parties. 4 Ves., 802, Kennell vs. Abbott. Void legacy, payable out of proceeds of sale of real estate, goes as personalty to the residuary legatee. 3 Wheaton , 563, Craig vs. Leslie. A devise of land to trustees, in trust, to sell the same and pay the whole proceeds to an alien cestui que trust is in equity a bequest of personalty. The court, in its decision in this case, states: “ But even in cases of resulting trust for the benefit of the heir at law, it is settled that if the intent of the testator appears to have been to stamp upon the proceeds of the land described to be sold the quality of personalty, not only to subserve the particular purposes of the will, but to all extents, the claim of the heir at law to a resulting trust is defeated, and the estate is considered to be personal.” And, after commenting upon several cases, goes on as follows: “ It is evident, therefore, from a view of the above cases, that the title of the heir to a resulting trust can never arise except when something is left undisposed of, either by some defect in the will or by some subsequent lapse which prevents the devise from taking effect; and not even then, if it appears that the intention of the testator was to change the nature of the estate from land to money, absolutely and entirely, and not merely to.serve the purposes of the will. But the ground upon which the title of the heir rests is, that whatever is not disposed of remains to him, and partakes of the old use, as if it had not been directed to be sold.”
    The case of Acknoyd vs. Smithson, reported in the 1 Lea. Ca. in Eq., is the leading case on this question, and is celebrated for the elaborate and very learned argument of Lord Eldon, then Mr. Scott. Lord Eldon admitted in this argument that the testator intended, in favor of his residuary legatee, to convert the whole into personalty; but claimed that, in case of the death of any of the residuary legatees, he had indicated no intention, and that there would be a resulting trust in favor of the heir at law, as was adjudged. 1 Ves. sr., 321, Durour vs. Motteux. Seal estate directed to be sold and applied inter alia to charitable purposes and the residue divided, &c. Held that, the bequest to charitable uses being void, it went to the residuary legatee, and not to the heir at law. See also Adams’s Eq., 135; 1 Lea. Ca. in Eq., 659 to 720; Fletcher vs. Asburn and Acknoyd vs. Smithson. The legacies far exceed the personal estate in amount, and if the realty is only to be considered as converted to the extent of payment of legacies after the personal estate has been applied to the same purpose, then the residuary clause would be a nullity, and would have to be wholly disregarded by the court in construing this will.
    
      So far as the question relative to lot No. 8 is concerned, the will is too plain to admit of argument. But even if by possibility it could be construed as contended for by the plaintiffs, it is immaterial in this cause, for the reason that any residue would be included in the direction to sell, and would pass to the residuary legatee.
   Mr. Justice Wylie

delivered the opinion of the court:

The object of this suit is to procure a construction of the last will and testament of the late John P. Hilton. The testator by this will directs, in the first place, all his debts and funeral expenses to be paid out of any portion of the estate which should first come into the hands of the executors. The personal estate being the primary fund, is, therefore, first liable for these objects. But one specific devise is contained in the whole will. This devise gives to Oarberry T. Hilton and three of his sons, grandchildren of the testator: “ all that part of lot eight, in Davidson’s subdivision of square two hundred and fifteen, fronting on Fourteenth street west, between L and M streets north.” The complainants claim that by these words the devisees take but the half of the lot, namely, that which fronts on Fourteenth street; and that the other half, which fronts on Vermont avenue, not having been devised by these words, has descended to the heirs at law. The whole lot, however, fronts on Fourteenth street, and has never been divided by any line running north and south, is very shallow between the streets, and terminates in a point where the two streets meet at a very acute angle, so as not to be susceptible of partition'by such a line without great Injury to the property. No man in his senses would think of dividing the lot by such a line.

The testator, however, in the subsequent part of this clause, carefully explains what he meant by the words, “ all that part of lot 8 fronting on Fourteenth street,” by these words: “ that is to say, one-half of said lot and improvements to the said Oarberry S. Hilton in fee-simple, and the remaining half, as he may choose, to him, the said Oarberry S. Hilton, in trust, for the sole use and benefit of his said children,” naming them. We think, therefore, that it was the intention of the testator in this instance to devise the whole of the lot, and not merely the half, and that the language of the will can take that construction without violence. The rule of interpretation applicable to cases like this may be found laid down by Lord Alvany in Sims vs. Doughty, 5 Ves., 243, and by Lord Mansfield in Doe vs. Briggs, 2 Taunt., 109.

Next we have the bequest contained in the second “ item.”

In this item the testator directs that all of his estate, except that specifically devised and bequeathed, should be sold, and the proceeds divided among a number of legatees, who are named, in the proportions assigned for each, as far as such proceeds would allow. In this direction the terms used are “ all my estate.” That includes both real and personal property. The object to be accomplished was the payment of the legacies specified, not the division of the whole proceeds among the legatees, whatever might be the amount of such proceeds. The property was to be sold for this one particular purpose : the payment of legacies, as specified in the amounts given the several legatees named. The testator, indeed, so far from directing by this clause a conversion of the real estate into money, for. the general purposes of the will, seems clearly to have thought that the proceeds would fall short of .paying the legacies in full; for he provides that in such case they should abate in proportion among themselves, and makes no provision in case of a surplus. Here, then, is both real and personal property directed to be sold for the purpose of paying particular legacies, each of a specified amount; and how are the executors to discharge the trust in such a •case ? Certainly the personal estate is first to be exhausted, and should that prove sufficient for the object, they will have no power to convert the real estate into money; for the object of the testator has been accomplished with the proceeds of the personal, and the real estate would descend to the heirs.

■ Had the testator, in this instance, declared that the entire proceeds of the property which he directed to be sold should be divided among the legatees, the conversion in equity would have been complete; or, had he declared that any surplus which might remain after paying the legacies should go to the residuary legatee, the result would have been the same. This doctrine is fully acknowledged by the Supreme Court of the United States in Craig vs. Leslie, 3 Wheat., 338. It was fully laid down and explained by Sir William Grant. M. R., in Manyham vs. Mason, 1 Ves. & B., 410, as follows: “ This is a general bequest of the residue of the testator’s personal estate, and the question is, what was meant to be included under that description. Properly speaking, nothing is the personal estate of a testator that was not so at his death. He may certainly so express himself as to show that something else was intended; but where there is nothing but a direction to sell land, with application of the money to a particular purpose, and a subsequent bequest of the rest and residue of the personal estate, I know of no case in which it has been held that the surplus, after the particular purpose is answered, forms part of the personal estate, so as to pass by the residuary bequest. And in 1 Roper on Leg., 517, the law on this subject is stated as follows: “ Where a testator gives his real and personal property in trust to be sold for particular purposes, but makes a general residuary bequest of his personal estate, such a disposition will not include the produce from the sale of the land, in the absence of a contrary intention expressed or inferred from the will, and for this reason: The surplus of the real estate is not made personal] it, therefore, does not fall within the terms of the bequest. The conversion of the land i nto personalty is merely to answer particular purposes, which, when performed, the residue continuing land and being undisposed of, necessarily results to the heirs. So that if A devise his freehold and personalty, or his freehold estate, to B, in trust, to sell and apply the proceeds in payment of legacies, making no further disposition of the real produce, and then bequeath the residue of his estate, or of his personal estate, to 0, the net surplus of his real estate will not pass to 0, for the reasons before mentioned, but it will be a resulting trust for the heirs of the testator.”

■ See also the Aclcnoyd vs. Smithson, 1 Bro. O. C., 503, and notes to the same case in 1 Lead. O. in Equity, 690. The-rule is well settled that where real and personal estate are both directed to be sold for the payment of debts and legacies, or either debts or legacies, the personal estate is first to be exhausted before resorting to the real; and this rule applies even where there is a general residuary bequest of the personalty. In 1 Roper on Leg., 696, the law is thus stated: “ The rule is general, that in the absence of contrary intention the personal estate is the first and natural fund for the payment of debts and legacies, and the real estate is only to be resorted to in aid of the former; * * * and it seems to be now settled that whether the real estate be devised to a person upon condition of his paying debts and legacies, or be charged with them generally, or whether it be given to trustees for those purposes, and the personal estate is disposed of by a general .residuary bequest, none of these circumstances will prevent the personal fund being applied, in the first instance, to the satisfaction of those demands.”

In the present case there is a residuary bequest, but it seems to be so carefully framed as to give to the legatee nothing except such personal estate as was actually in the possession of the testator at the time of his death, and which might remain after all the debts and legacies should be fully satisfied. We have seen that the personal estate was the primary fund from which the debts and legacies should be paid. We have' seen, also, that in this case the direction to sell the real estate for the purpose of paying the particular legacies was not a conversion of the real estate except for that particular purpose, and then only as an auxiliary fund to the personal estate. It follows, therefore, that the surplus proceeds of the real estate will not go to the residuary legatee as personal estate, but must be divided equally among the heirs of the testator as property not disposed of by his will. The debts are to be first paid, next the legacies ; and both from the personal estate, if that be sufficient. The real estate is to be called upon only to make up for any deficiency of the personal for these purposes. • To the extent that it is not needed, it or its proceeds will go to the heirs at law.  