
    Petty’s Heirs vs Montague.
    Appeal from the Fayette Circuit.
    Chancery.
    
      Case 17.
    Case stated.
    
      Gifts. Specific legacies.
    
    
      September 24.
   Judge Beech

delivered the opinion of the Court.

Ransdall Petty made a deed of gift to three of his children, of his landed estate and slaves, but not to take effect till bis death. He at the same time, by an additional writing attached to this deed, and which may be considered as constituting a part of it, provides for two other children as follows:

“ And I also bargain, sell and convey to my daughter Elizabeth Webb, and my son Joel Petty, the sum of fifteen hundred dollars each, to be paid them at my death, first my property that is not mentioned in the assignment to my three children, William, Ann and Sarah Jane, to be sold to make up the amount, and should that be insufficient, the balance to be made up of my land and negroes.”

Deoreo of the ‘Circuit Court.

A deed of gift giving specific sums to the donor’s children, to be raised at his death by the sale of property not deeded away if sufficient, if not sufficient then to be raised by the sale of land and slaves, it proved insufficient. Held that the land and the slaves were subject to the payment of these sums, and that dhey constituted rti charge upon ¡the gift.

Immediately after’inaking this deed, Petty married a second wife, to whom dower in bis landed estate was decreed : Petty vs Petty, (4 B. Monroe, 215.)

At his death he left personal estate to the amount of near five hundred dollars,' which was absorbed in pay. ment of debts, and there being still left a balance of unpaid debts to nearly the same amount.

Upon this state of fact the Court below was of opinion that the land and slaves were subject to the payment of the whole amount of the donation to the children, Joel and Elizabeth, and decreed accordingly.

The correctness of that opinion and decree is the only question for consideration.

It is contended that the claims of Joel and Elizabeth should be diminished by the amount of the personal estate, that they should pay rateably, the debts, and bear their share of the loss arising from the claim of dower. But we aie not satisfied that this position, to any extent., can be sustained. Even applying the rules and principles, which would be applicable to the case, had the deed been a will, we should still be of opinion that Joel and Elizabeth would be entitled, each, to fifteen hundred dollars, and that the land and slaves would be subject to its payment, of course after the payment of debts..

The land and slaves were given subject to this charge, and to the entire charge, should the residue of the dower estate prove unavailing. The deed did not divest him of the entire control of his personal estate. Pie could have little or none, as he chose. He in effect, appropriated the whole to his own use while living, in creating debts for which it was liable. The donation to Joel and Elizabeth, had the‘deed been a will, would have been a speci. fie legacy, and not subject, we think, according to the authorities, to abatement or contribution.: .( Williams on Executors, 842; Ward on Legacies, 370.) A specific sum is given and the payment of the entire amount, we think, is made a charge upon the land and slaves upon the failure of the other estate.

Robinson fy Johnson for appellants; Bullock fy Breckinridge for appellees.

The decree is, therefore, affirmed.  