
    [Pittsburg,
    September 23, 1828.]
    MARTIN and another, Executors of MARTIN, against FRY.
    IN ERROR.
    Testator, by his will, directs the funeral expenses and debts to be paid as soon as conveniently may be after his decease. He then gives his wife certain enumerated articles, such as a cow, side saddle, chest, &c., and the use of a house with.its appurtenances, during widowhood. “ I likewise give and bequeath to my said wife M., the one third'part of my personal estate,” all which legacies he declares to be in lieu of dower. He directs his executors, as soon as conveniently can be done, to hold a vendue, and sell all that part of his personal estate not heretofore or hereafter bequeathed to his wife or children, to the best advantage, causing .the same to be appraised before the sale. He appointed an executor with power to sell his reál estate: gave some specific legacies to his children, and the residue of his estate to be equally divided among all his children. Held-, that the whole of the debts must be first paid out of the personal estate, and the one third of the remainder thereof passed by the will to the widow.
    In the Court of Common Pleas of Venango county, to whieh a-wr'it of error issued, it was agreed that the following statement be submitted to the court for their decision, to be considered as a special verdict. The plaintiffs in error were defendants below.
    On the 22nd of August, 1822, Samuel Fry, the testator, made his last will and testament, duly executed and registered, in which, after bequeathing a few small specific articles, and the use of a tenement in .the said will mentioned, to' Mary Fry,- his wife, the plaintiff; bequeathed to her the one. third of his personal estate. He appointed the defendants his executors, with power to dispose of his real estate and execute a deed or deeds to the purchasers. He then bequeathed to some of his children certain specified legacies; the residue of his estate to be'equally divided among ¿11 his children. The amount of the personal property of the teslator was six hundred and eighty-seven dollars and fifty-seven cents, (pro.ut settlement of administration accounts, filed by the executors,, passed by the re'gister, and confirmed by the court,) the amount of the testator’s debts was five hundred and sixty-four dollars and -ninety cents, (prout same settlement, &c.) The executors sold the real estate for eleven hundred and forty dollars and seventy-five cents, {prout statement, &c.) '
    If the court shall be of opinion from the above, stated .facts, and a legal construction of the whole will, that the plaintiff is entitled to the third part of the whole .personal estate, independent of the debts of the testator, then judgment to be entered for the plaintiff for two hundred and sixty-three dollars and fifty-six and a quarter cents.
    If the court should be of opinion that the debts should be paid out of the aggregate of real and personal estate, and that the widow is entitled to one third of the personal residue, then judgment to be entered for the plaintiffs for one hundred and eighty-two dollars and nine cents.
    If the court are of opinion that the debts were to be paid, entirely out of the personal estate, then judgment to be entered'for only forty-three dollars, and thirty-eight cents.
    The judgment in either case, to be de bonis testatoris only, unless the executors should render themselves personally liable.
    The court below held, that the plaintiff, (the widow,) was entitled to the third of the personal estate exclusive of the debts, and therefore gave judgment for the plaintiff according to the cafce stated, for two hundred and sixty-three dollars and fifty-six and a quarter cents.
    The will, after the usual preamble, was as follows:—
    “And, as to such worldly estate wherewith it has pleased.God-to bless me in this life, I give and dispose of the same in the following manner, to wit: — first, I do order, and it is my will, that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be done after my decease. Item first, I give and bequeath to my dear wife Mary, one bed and bedstead, one cow; I also give and bequeath to her the use and occupation of the house wherein Samuel Fry, jr., lived, with the stable, garden, and that part of the meadow that lay above the lane, during her widowhood, provided that she choose to inhabit and use the said house and tenement, otherwise she shall not be át liberty to rent it to any person whomsoever. I likeibise give and bequeath unto my said wife Mary, the one third part of my personal estate, all which legacies to my wife, I do hereby declare to be in lieu and stead of her dower at common law, excluding her from, all claims on any part of my real estate. I also give.and’bequeath unto her, one side saddle and one chest. Item second, I do order and direct my hereinafter named executors or the survivoi's of them, as soon as conveniently can be after my decease, to have a vendue, and sell all that part of my personal estate not heretofore or hereafter bequeathed, either to my wife or children, to the best advantage, causing the same to be appraised before the sale. I likewise order, and direct the said hereinafter named executors, or the survivors of them, to sell and dispose of my real estate, to such person or persons, and fpr such price or prices, as may be honestly gotten for the same, with the restriction’concerning the house and tenements bequeathed to my dear wife Mary, during her widowhood, for which purpose I-do hereby empower my'said executors or the survivors of them, to sign, seal,’execute and acknowledge all such deed or deeds as may be required, and necessary for the granting and assuring the same to the purchaser or purchasers thereof; but in case that my hereinafter named executors should not soon find an opportunity to sell and convey my real estate, then it is my will that they should rent it to such person and for such conditions as may seem to them most to the benefit and interest of my heirs, until such time as they can sell and convey the same; and the monies arising from the sale pf my reál and personal estate, to be by my hereinafter named executors divided in the following-manner, to‘ wit: — I give and bequeath to my son, Jldam Fry, the sum of. one hundred dollars, to be paid unto him out of the monies that shall first come into my executors’ hands, after first discharging all my just debts. I give and bequeath to my son, Samuel Fry, the sum of twenty dollars to be paid to him by my executors as soon as they can, after paying my son, Jldam Fry. It is my will, and I do order, that my hereinafter named executors or the survivors of them,- shall divide and distribute all the residue of the monies arising from the sale of my real and personal estaté among all my children, sons and daughters, or the survivors of any of them, in the following manner, to wit-: the monies arising from the sale of my personal estate shall be divided among all my children to equal share, including my sons Jldam Fry and Samuel' Fry, notwithstanding the bequeath made by me in their favour, as soon as it comes- into the hands of'my hereinafter named- executors or the survivors of them; the monies arising from the sale of my real estate, when sold, -shall be divided also among all my children to equal share, .and paid in the following manner and condition, to wit: my son Jldam Fry shall be the first to receive his share in full, as soon as the first monies of my real estate shall come into'the hands of my. executors or the survivors of them:.all the rest of my children shall each receive one half of their shares only at a- time, beginning first with my daughter Eve; second, Barba,~ ra; third, my son Samuel; fourth, Madelina; fifth, Sarah; sixth, Christiana; seventh, Maria. As soon as the last shall receive her half share, then it i.s my will that my daughter Eve shall receive her last half share, and then proceed on again as before until they shall all have received their last half share. . Concerning my daugh- ’ ter/ Christiana, she being widow to W. Moore, deceased, and having several children tó the said Moore, my will is, that her share when paid, shall be divided between-her and her children, allowing her one equal share with her children, excepting one of her sons named- Samuel Moore, to whom I bequeath ten dollars inorethan to the others. As concerning my daughter Maria, being married to Joseph Cutygar, and having as yet no issue, it is my will and I- do order, that her share shall be paid to th.e said Joseph Cutygar, in the manner directed above, under the restriction that the said Joseph Cutygar, shall repay back unto my other'children at the death of my said daughter Maria, in case that she leave no children, without interest; and only of- what share shall fall to her of my real estate. - As concerning my daughter Madalina, she being a widow to George Keeper, deceased, and having had several children to the said Keeper, and being now married to John Cramer, my - will is, that ‘her share be paid into the hands of. the said George Cramer, as in trust for the children that she ,had to, George Keeper,' as ‘well as for his own, he the said John Cramer ’ giving security to the satisfaction of the Orphan, for the true performance of this clause. Lastly, I nominate Henry Neíugh and Barnhart Martin to be the executors of this my last will and'testame.nt,-'hereby revoking all other.'wills and testaments, legacies and bequests by me heretofore made, and declaring this to be my •last will and testament and no other. Given under my hand and seal this 22nd of August, 1822.” ■ , ',
    
      Pearson, for the plaintiff in error.
    
      Galbraith and Ayres, contra.
    
   The opinion of the court was delivered fay

Rogers, J.

rlt is a general rule,' that the personal estate is to be applied in the first place, to the payment of debts, and that the testator cannot, against his creditors, exempt the personal estate, although against his heir at law, or the devisee of his real estate, lie may substitute the real in the room of the personal fund, and charge his debts upon'that fund which is not primarily liable. Walker v. Johnson, 2 Atk. 624: But to exempt his personal estate, and charge his real, there must be express words or a manifest intention. Rostan et al. v. Rostan, 2. Yeates, 63, 64, and the authorities there cited.

It it contended, and has been so ruled, that this intention is manifested in this will, and this forms the question on this writ-of error. It is obvious, from an examination of the will, that the testator had no.idea, that his real estate, would be wanted for the payment of his debts, • He seems to have .been undei- the irnpres-, siori, that the two thirds of his personal es.táte would have been abundantly sufficient for that purpose, and had he been aware of the actual state of his affairs, it is probable he would have made a different provision. We are, however, called, on to throw the debts on the devisee of the real estate, although the land is not expressly charged with the payment of debts, but on the contrary, is ordered to be sold.and divided among certain of his children and grandchildren, who are particularly named. 'These devisees are as much the objects of the testator’s bounty, as the widow. Their rights are as much to be favoured, and perhaps more so, as she might, if dissa^ tisfied with the provision for 'her, have elected to have taken her dower at common law. The will directs the funeral expenses and debts to be paid as soon as conveniently may be after his decease; The testator then gives the widow certain enumerated articles, such as a coW, side saddle, and chest, &c¡, and the use of a house, with it appurtenances, during widowhood,.and. proceeds, I likewise give and bequeath to my said wife Mary,: the one third.'part of'my personal estate,” all which legacies, he declares to be in lieu of dower. He directs his exeeutors, as soon as conveniently can be done, to hold a vendue and sell all that part of his personal estate not heretofore or hereafter bequeathed to his wife or. children, to the best advantage, causing the same to be appraised before the sale.. This,. it is contended, is a specific devise of one- third of the personal estate to the wife. The court are of opinion it is not, for the following reasons. The funeral expenses and the debts, are put by the testator on the same footing. They are to be first paid, and it is improbable that he intended a legacy to be of one third of the personal estate, exclusive of the expenses of his burial. Secondly, Because, from the whole tenour of the will, the intestate looks to the personal estate, and that alone, for the payment.of his debts;. and because he made a different disposition of his real estate, manifestly showing that he had no idea of charging that fund with the payment of the debts, and this differs the case from Walker v. Jackson, 2 Atk. 624, which was mainly relied on by the defendant in error. In Walker v. Jackson, the testator expressly charged his real estate with the payment of his debts, which furnishes a key to the decision, and . reconciles it with the current of authorities. Besides, there were other circumstances relied on by the chancellor, which do not exist here, showing that he did not intend his personal estate.to be brought in aid of the real fund. To show the plain intention of the testator to exempt the personal estate, the chancellor relies on the circumstance, that after giving several specific legacies, he says, lastly, I appoint the above-mentioned Emma Marshal and Dorothy Beaupre, joint executrixes of this my last will. If the testator had rested' there, it was only making them executrixes, and the personal estate would then have been applicable to exonerate the real. But the testator some time after adds these words: “ And I give ánd devisé to them all my personal estate not hereinbefore devised,” and in a formal manner re-executes his will. And this the chancellor notices, was made part of the probate, and is relied on as a strong, and indeed insurmountable circumstance, to show the intention of the testator. Again, the doctrine contended for by the defendant in error, would make it'the duty of the executors to set apart 'one third of the personal estate in specie, and make vendue of the remainder, which it,would appear to-me, vyas never contemplated by the executor.

When'the testator orders his executors to sell all that part of his personal estate not heretofore or hereafter bequeathed to his wife and children, he has reference to the specific bequests. There, is no necessity of including the devise of the one'tnird of-the personal estate to the will: the words, of the will are all satisfied by referring them to those bequests which- are actually to be specified. .

Judgment of t.he court of Common Pleas reversed, and judgment fpr the plaintiff for forty-three dollars and thirty-eight cents.  