
    UNITED STATES, TO THE USE OF JOSEPHINE TURNBURKE, vs. GEORGE S. PARKER.
    At Law. —
    No. 12211.
    I. Personal estate is the primary fund out of which legacies are payable ; and a mere charge on land will not exonerate the personal property, unless the will shows upon its face a clear intention on the part of the testator to charge this pecuniary liability.
    II. Where by the terms of the will the executor was directed to invest the amount bequeathed for the benefit of the legatee, and he failed to do so, an action may be maintained upon the undertaking, of his surety.
    STATEMENT OE THE 'CASE.
    The cause of action is set forth in the statement- of facts agreed upon by the parties, as follows:
    Julia A. Kelly died in the city of Washington in the year 1866, leaving the following paper as her last will and testament. The testatrix says:
    “And after my just debts and funeral charges shall have been paid and satisfied, I give and bequeath as follows :
    “ 1st. I give and bequeath unto my sister, Jane Turnburke, of the said city of Washington, the sum of $2,000.
    “ 2d. I give and bequeath unto my niece, Josephine Turnburke, the daughter of my said sister Jane, the sum of onethousand dollars, to be held in trust by my executors hereinafter named, and to be by them invested to the best advantage for her benefit until she shall have attained the age of eighteen years, and the interest arising from such investment shall be applied by my said executors toward her education and maintenance. And when my said niece shall have attained the age of eighteen years, these my said executors shall pay over to her the said sum of one thousand' dollars, together with all the increase arising from the investment aforesaid, and which shall not have been expended as aforesaid, free of all charge or commission whatsoever. If she shall have attained the age of eighteen years before this my last will goes into effect, then my said executors shall pay over to her the said sum of one thousand dollars with as little delay as possible.” Item 3 bequeaths unto her (testatrix’s) sister a large diamond ring and all her silver plate and paintings, also a lot in Baltimore Cemetery. Item 4 gives to Jenny Howard 81,000 and her wearing apparel. Item 5 bequeaths to Maria Jennings her diamond breastpin and ear-rings. Item 6 gives to her sister, Ada Dennings, her leasehold estate in Baltimore, also her house and lot on Sterling street, Baltimore. Item 7 gives to John S. Hogg her large diamond cluster. Item 8 gives to John H. Ford all the rest and resid ue of the estate, both real and personal.
    “9th. I hereby charge my house and lot and appurtenances on Thirteenth street west, in the said city of Washington, with all the foregoing money legacies, to wit: To Jane Turnburke; $1,000; to Jenny Howard, $1,000. Beposing entire confidence in the integrity and judgment of my said executors, I am satisfied that they will, with the least possible delay, execute all the trusts empowered by these presents. My object in charging my house and lot aforesaid with the said legacies is to guard against their defeat by circumstances beyond the control of my said executors. I shall therefore leave to their judgment and discretion the determination as to the period the said legacies shall be allowed to run before they resort to a sale of the house and lot aforementioned, contenting myself with singly expressing my earnest wish that they shall be paid at the earliest period. In order, however, that the said legatees may receive the benefit of their respective bequests without delay, I hereby require that each and every of the said money bequests shall bear interest of six per centum per annum, beginning at the expiration of six months from and after the date of the probate of my last will and testament, payable thereafter semi-annually, to each of the said legatees respectively, out of the rents, issues, and profits of my said house and lot on 13th street, as aforesaid, subject, however, to the conditions hereinbefore pro'í'l&Á in the cáse of Josephine Turnburke.”
    This will was duly admitted to probate in the orphan’s court of the said District on the 4th day of August, 1866, and on the same day John H. Ford qualified as executor thereunder, John H. Hogg, his co-executor, having renounced. The defendant, George S. Parker, and one Charles H. Winder, are sureties upon the bond of said executor. The condition of the said bond is as follows: “ Condition of the above obligation is such, that if the above-bounden John H. Ford shall well and truly perform the office of executor of Julia A-Kelly, late of Washington County aforesaid, deceased, according to law, and shall in all respects discharge the duties-of him required by law as executor aforesaid; without any injury to any person interested in the faithful performance-of said office,, then the above obligation shall be void ; it is-otherwise to be in full force and virtue in law.”
    The said Ford, as executor, received into his hands assets sufficient to discharge all the debts and legacies of his testa-, trix. He did not pay the legacy of $1,000 bequeathed to Josephine Turnburke, for whose use this suit is brought, nor has he paid the said legacy to any one for her use or benefit; he bas, however, paid to her guardian interest upon said legacy up to 1870. Demand has been made upon .the said executor, and the defendant and his surety, for the payment of said legacy, but the same has been refused. The legatee, Josephine Turnburke, had attained the age of eighteen years when this suit was brought.
    On the 25th day of June, 1868, the said executor filed m-the said orphan’s court a receipt in the following words :
    “ Received of John H. Ford, executor of the last will and testament of Julia A. Kelly, one thousand dollars, being in full for the legacy bequeathed to Josephine Turnburke in said last will and testament, to be held by me in trust for her,, in conformity with the provisions of the said will.
    “ JOHN H. FORD,
    
      “ Trustee.
    
    
      “ Witness: Jas. S. Edwards,
    “ Deputy Register of Wills?
    
    The said executor had his firlfeid final account as executor settled by the said orphans’ court on the 12th day of Februaryr 1S70, without paying said legacy to the said Josephine Turnburke, save by receipting as aforesaid.
    The house on 13th street, in the city of Washington, on which this and other legacies were charged, was inortgaged on the 27th day of June, 1867, by the said executor, Ford, to secure the payment of $8,000, borrowed by Ford for his own use, the said executor being also residuary lega* tee, and taking the said house as such. The mortgage required that the money-legacies charged upon said house should be paid, and they were all paid with the exception of that of Josephine Turnburke, she not being at that time eighteen years of age. The receipt of Ford as trustee was placed on file, as above stated, as the only method of paying said legacy at that time. In October, 1870, the house was sold under this mortgage, and was purchased by one Stewart for full value. It was again sold in 1873, and a note to secure a deferred payment under the second sale is held to await the decision of the court upon the liability of the executor’s bond for the legacy in question. Iu this note the said Ford had no interest, he having received full value for the house sold j the note is owned by the minor heirs of Stewart, who gave full value for said house at the first sale.
    The plaintiff instituted the action against the defendant, George S. Parker, one of the sureties on the bond, to recover the amount of the legacy bequeathed to her in the will. The undertaking was dated August 4, 1869.'
    The cause was heard before the chief-justice at the circuit upon the agreed statement of facts, and a judgment was rendered in favor of the plaintiff. The case is now here to be heard upon an appeal by defendant from said judgment.
    
      R. Ross Perry for plaintiff: .
    The question is determined by the following authorities, which establish the primary liability of the personalty: Gibson vs. McCormick, 10 Gill & Johns., 65; Kelsey vs. Western, 2 Comst., 500; Rogers vs. Rogers, 1 Paige, 188. This is true even where the land has been specifically pledged by the testator in his life-time for the payment of a debt. Stevens vs. Gregg, 10 Gill & Johns., 143. In order to exonerate the personalty, there must be evident in the will not merely an intention to charge the realty, but an intention to discharge the personalty. In re Walker’s Estate, 3 Rawle, 229; Howe vs. Earl of Dartmouth, 7 Ves., 625.
    Can there be any doubt, from the provisions of the will in. question, that the testatrix intended the legacies to be paid out of the personalty, and only to hold the,realty in case of a deficiency ?
    Her object is explicitly stated to be the guarding of the legacies from defeat by circumstances beyond the control of' her-executors. If there should not be money enough, her house was to be sold to pay these legacies. The very order In which the different provisions are made clearly shows this. Her executor was to pay, firs t, funeral expenses and debts; second, $2,000 to Jane Turnburke; third, $1,000 to the ■plaintiff; then follow in order certain bequests and devises of personalty and realty; lastly, there is a residuary devise of all the residue of her estate, both real and personal, to her ■executor. It is not until all these provisions have been made that the money-legacies are charged on the property for the purpose, explicitly stated, of securing them. Now, it is admitted the executor had money enough to pay all these legacies. Will the court say that he could not pay them with the personalty, but was obliged to resort to a sale of the house? The only person who could.object was the residuary legatee; as he was residuary legatee of both personalty and realty, it could make no difference to him from what source the money was derived. Having wasted both the personalty and realty-, the objection hardly lies in his mouth.
    Could the executor, by giving to himself, as such, a receipt from himself as trustee for the legacy in question, discharge his surety from liability therefor ?
    It appears from the provisiops of the will that the executor was to invest this legacy and hold it in trust until Josephine Turnburke should attain the age of eighteen years. It is to be held in trust by the executors qua executors. Their bond is ■obviously liable for a default in the execution of this trust.
    Even had the executor been directed to hold it as trustee, his bond would yet have been liable for breach of his trust. Ellis vs. Essex Bridge Company, 2 Pick., 243; Hall vs. Cushing, 9 Pick., 395; Brown vs. Kelsey, 2 Cush., 243.
    
      John J. Johnson for defendant:
    It is claimed by the appellant, Parker, that the legacy which is the subject pf this suit was by the very terms of the will made a charge upon the real estate therein described
    
      It is not controverted that, in order to charge real estate with the payment of legacies, it must appear from the will it was clearly the testatrix’s intent.that the.charge should be imposed. This intent may be expressed in terms or by implication ; the law seeks only to carry out the purpose of the testatrix.
    That intent is manifest from the fact that the testatrix disposes of her entire property, both real and personal, specifically, except the furniture and the residue of the Thirteenth-street house, which, after payment ofthe money-legacy charged thereon, passes to Ford, the executor and residuary devisee. The testatrix having directed her. debts and legacies to be first paid, and then devised a specific piece of real estate for the payment of said money-legacies, not general legacies, it is contended that this is a charge on the realty. In endeavor* ing to ascertain whether a legacy is a charge upon the real estate, where no certain and positive words are used to exonerate the personalty, the intention of the testator must be ascertained by the light of the entire will.
    The testatrix in the case at bar, “ after the payment of her just debts and funeral expenses,” devises the money-legacies, and then proceeds to dispose of her entire personal property, by naming both the article and the object of her bounty. After disposing of her personal property, she again recurs to the money-legacies. Not unmindful that she has made no provision for their payment, by a separate item she directs her scrivener to say, all of the money-legacies shall be paid out of the real estate on Thirteenth street, and for that purpose it shall be a charge.
    The executor does not bind himself to well and truly administer the real estate, and no power is delegated him by the orphan’s court; and, moreover, the court of appeals of Maryland has decided that, prior to the act of assembly of Maryland of 1831, ch. 315, which act of 1831 is not in force here, the bond of an executor was not responsible for the proceeds of a sale of the realty for the payment of debts. Cornish vs. Wilson, 6 Gill, 299; Warring vs. Warring, 2 Bland, 673.
    The trust confided to an executor is clearly set forth and defined by his letters testamentary, which is the commission under which he acts. Gibbons, executor of Riley vs. Riley, 7 Grill, 81. Furthermore, if the executor had express power to sell the real estate, the proceeds arising from such sale would be equitable, and not legal assets, and being equitable, are liable by the aid of a court of equity. Williams on' Executors, 1430. Where a legacy is charged upon real estate, the purchaser takes it subject thereto; so, also, where property is held upon any trust to keep, &c., and tht trustee sells, it may be traced into the hands of innocent purchasers. 7 Paige, 421; 7 Har. & Johns., 320; 18 Wall., 341.
   Mr. Justice MacArthur

delivered the opinion of the court:

By the second clause in the will there is bequeathed to the plaintiff the sum of 81,000, which is to be held in trust for her by the executors until she shall have attained the age of eighteen years, when that amount is to be paid over to her, free and clear of all charges. In the ninth clause the testator charges all the preceding pecuniary legacies upon his house and lot on Thirteenth street west, but he is. careful to state that his object in charging the house with these legacies is to guard against their defeat by circumstances beyond the control of his executors. It was argued from this provision that the legacy was made a charge upon the realty by way of security only, so that it would not be defeated in case there was a deficiency of personal assets, and that it was, therefore, manifestly his intention that his-personal estate should not be exonerated from.the payment of the legacies. It is a familiar and well-settled doctrine, that the personalty is the primary fund out of which legacies are payable; and that a mere charge on land will not. exonerate the personal property, unless the will shows upon its face a clear intention on the part of the testator to change the primary liability. Livingston vs. Newkirk, 3 Johns. Ch., 319; Tole vs. Hardy, 6 Cow., 332. The testator is presumed to act upon this legal doctrine, unless he has distinctly manifested the contrary by the terms and provisions of the will. Hoes vs. Hosen, 1 Comst., 120. See also Harris vs. Fly, 7 Paige, 421; Glen vs. Fisher, 6 Johns. Ch., 36. There is not enough on the face of this will to show that the personalty was to be excluded, and that the legacy was charged wholly upon the land. The latter was to be resorted to only upon the contingency that circumstances placed it beyond the power of the executors to pay the legacy. That this is the construction of the will is evident ; for how could the executors be unable to discharge them from any other circumstance than a deficiency of assets belonging to the estate. That circumstance did not transpire in this case, for it is admitted that the executor had sufficient assets in his hands for the payment of all debts and legacies, and the contingency upon the happening of which a resort to the realty was provided for had not occurred. Having wasted the fund or misappropriated it, he has failed in the performance of the duties of his office as executor, and an action would therefore lie against his surety as for a breach of his undertaking.

It has been contended that when Ford gave himself a receipt as trustee for the legacy, his responsibility in regard to it terminated as executor, and that his surety was thereby discharged. We think this attempted transmutation of the fund from his capacity as executor to that of trustee was only colorable, and one which he had no right to make. By the express terms of the will he was to invest the amount bequeathed, and apply the income to the benefit of the legatee until she should reach the age of eighteen years, and then pay over to her the said sum of one thousand dollars with as little delay as possible, and free from all charge or commission. If he failed to fulfill these directions, it was in violation of his duty as executor, for the security of which the undertaking now in suit was given. Hall vs. Cushing, 9 Pick., 395; Browne vs. Kelly, 2 Cush., 243.

Judgment below affirmed.  