
    *James Glass and wife v. Robert Dunn et al.
    1. Where a will gives pecuniary legacies, and provides that they and the debts of the estate shall be paid out of the personal assets and the proceeds of real estate directed to be sold for that purpose, the legacies are not demonstrative, or in the nature of specific bequests, but are to-be regarded as mere general pecuniary legacies.
    2. If the fund thus provided prove insufficient to pay the debts and legacies, the general pecuniary legatees can not compel contribution from specific devisees to equalize the loss arising from the deficiency.
    •3, Such fund can not be applied in payment of a debt secured by mortgage on land specifically devised, unless it be sufficient for the payment of all other debts and the legacies; and if so applied, when the fund is insufficient, must be refunded by the devisee.
    4. A provision in such will that the “proceeds” of a tract of land therein directed to be sold, should “ be equally divided between testator’s eight children, together with all remainders and excess, after paying the within and before mentioned bequests," does not make such proceeds apart of the fund for payment of debts and legacies, but gives the same specifically, together with the residuum of the fund for payment of debts and legacies, to the eight children named.
    6. Specific devisees can compel contribution from each other, where the land devised to either is taken for payment of debts which are not charged, or secured by mortgage or other lien, upon the same.
    Appeal. Reserved in the district court of Belmont county.
    William Dunn, who died in 1858, by his last will devised to each of his children, Thomas, Samuel, Caldwell, William, and Jane, a specific tract of land, and to his son Robert the proceeds or rents of a one hundred-acre tract, for his life support.
    The tract so devised to Caldwell, and part of that devised to William, were incumbered with a mortgage for $1,500, executed by the testator to a third person.
    The will also contained pecuniary bequests, viz : $1,500 to the plaintiff, Mary Caldwell Glass ; $1,000 to Ephraim McCleary, and $1,000 to the children of Margaret ELennon.
    After several other dispositions, which need not be specified here, the will provides as follows:
    “ 13. It is my will and I direct my executor to make sale of my personal property and the farm in Guernsey county, on which my son Samuel now resides, containing 112 acres; also, my mill property, with the land attached thereunto, situated on Wheeling creek, Belmont county, Ohio; and further, I direct that, should the suit now pending in the case ^trying my title to the lands held by me in Union county, Ohio, be decided in my favor, then, in that case, I direct my executor to make sale of the same. The proceeds arising from the sale of the several tracts herein ordered to be sold, together with the proceeds of my personal property, to be applied to the payment of my debts and the bequests herein made.
    “ 14. It is my will and I do hereby direct my executor that, immediately after the decease of my son Robert Dunn, he make sale of the one hundred acres in Guernsey county, Ohio, left by me for his use; the proceeds arising from the sale thereof to be ■divided equally between my own eight sons and daughters herein named, or to their heirs, together with all remainders or excess, after paying the within and aforementioned bequests by me herein made."
    
    The property specified in clause No. 13 has all been sold by the executor, and the proceeds thereof, together with all other personal assets of the estate, have been exhausted in payment of debts, leaving nothing to apply on the legacies, and leaving unpaid debts to the amount of two or three thousand dollars. Among the debts so paid by the executor was that of |1,500 secured by the mortgage aforesaid.
    Robert Dunn is still alive, and the 100-acre tract so devised for his life support, has not yet been sold.
    The present case is an action brought by Mary Caldwell Glass and her husband, against the executor, devisees, and legatees aforesaid, .to marshal the assets of the estate. The petition — which was demurred to by the devisees — and the answer thereto of the executor, set forth substantially the facts aforesaid. The object of the action is to compel Caldwell Dunn and William Dunn to refund the amount so paid upon the mortgage, to be used as a fund for the payment of debts and legacies; to have the land so charged with the life support of Robert sold, subject to said life support, and the proceeds applied in like manner to the payment of debts and legacies; and to obtain from the several devisees a prorata contribution to the legatees, so as to equalize the loss arising from the deficiency of assets for payment of debts and legacies.
    *B. 8. Cowen, for plaintiffs :
    These are demonstrative legacies. Here are bequests of certain sums; legacies in their nature general; gifts of a gross sum. And in the thirteenth clause of the will a fund, a particular fund, is pointed out for their payment, to satisfy them. 2 Bouv. Dic. 20 ; 10 New Am. Cyclopedia, 433, art. Legacy; 2 Lead. Cas. in Eq. 476, 479, 484, 495, 505, 507, 512, 513.
    Demonstrative legatees are entitled to the rights of both pecuniary legatees and specific legatees. I claim that, under our wills act (secs. 58 and 59), pecuniary legatees and specific legatees and ■ specific devisees are equals, in proceedings to marshal assets. But, .should I be mistaken in this, so far as the former are coneerned, I think it will be found that I am right as to the equality of the ■other two.
    These legacies are legacies of specific amounts of money. If no more was said of them in the will than the donative words, they would be pecuniary legacies, and, as such, would, upon principle and a uniform and unbroken chain of authorities, have a right to have the personalty, though the primary fund for the payment of •other debts, exonerated from the mortgage debt, by the devisee of •the mortgaged estate. And this, without our statute in regard to •marshaling assets, their right, as simply pecuniary legatees, to ■contribution from specific devisees, is not clear, upon authority.
    It has been objected that a bequest of all the testator’s personal property is never specific, and for that reason these are not demonstrative legacies. This is not such a case, if such be the law. It does not apply here. There is no bequest of all the property to legatees. The bequests are of specific sums of money. All the personal property, and parts of his real estate, are directed to be sold, and the fund produced by the sale to be applied to the payment of debts and legacies. This is giving to the legatees but undivided shares of the fund. The fund is specified, pointed out, out of which the legacies are to be satisfied.
    The foui’teenth clause also points to a fund out of which the legacies are to be paid, in so far as they have failed of payment out of the fund pointed out in the thirteenth clause. Such I take to be the true signification of the direction that *the proceeds of the sale of the Robert Dunn hundred acres should be paid to his children, after his legacies are paid. 1 Roper on Leg. 448.
    As to the real estate directed by the will to be sold, the money arising from the sale, in so far as it is directed to be applied to the payment of legacies, is to be treated here as if the land had been given. 2 Lead. Cas. in Eq. 250; 2 Williams on Ex’rs, 1436; 22 Law Lib. 41; 5 Ib. 4.
    Though it appears to me that our wills act was intended to equalize the rights to contribution between devisees and pecuniary, specific, and demonstrative legatees, having had no authoritative judicial interpretation of it, I cite, upon the subject of contribution between legatees and devisees, without regard to our statute, the following authorities: 1 Roper on Leg. 636; 2 Jarman on Wills, 429, 661; Hill on Trustees (ed. of 1857), 531, note; Adams’ Eq. (ed. of 1859) 593, note; Tombs v. Roch, Coll. 499; Flemming v. Buchanan, 3 DeG. M. & G. 976 ; Patterson v. Scott, 1 DeG. M. & G. 631; Chase v. Tuckerman, 11 Gill & Johns. 186; Dugan v. Hollins, 4 Md. Ch. 139; 11 Md. 41; Aldrich v. Cooper, 8 Ves. 382; 2 Lead. Cas. in Eq. 198, 270; Livingston v. Livingston, 3 Johns. Ch. 158.
    We claim that, upon both principle and authority, talking the-eases reported in the United States, and,the cases in England-since real estate in that country became chargeable with the payment of simple contract debts, as it has always been in Ohio, and most, if not all, of the other states, the plaintiffs are entitled to contribution, as-asked for. 2 Lead. Cas. in Eq. 211, 260 ; Adams’ Eq. 561, note 6; Hoover v. Hoover, 5 Barr, 351; Hallowell’s Estate, Teas’ Appeal, 23 Penn. St. 223.
    The plaintiffs ask for legatees jmrmission to stand in the place of the mortgagee, and against the devisees of the mortgaged lands, and the mortgaged lands to collect the amount taken from, this fund and applied in payment of the mortgaged debt, with interest thereon from the time the same was so applied. 1 Story’s Eq. Jur., sec. 565; 2 Jar. on Wills, 432, 602, marg.; 2 Williams on Ex’rs, 1461; Toller’s Law of *Exr’s, 421; Pow. on Dev. 22; Law Lib. 382; 1 Roper on Leg. 630; 1 Lead. Cas. in Eq. 637.
    
      St. Glair Kelly and Peter Tollman, for Caldwell Dunn and others :
    The intention of the testator must govern; and that must be ascertained by the use of the established rules, from the will itself, with the aid in its Construction of such other evidence only as shows-the position and relation of the testator to his property, and the objects of his bounty. Lessee of Worman v. Teagarden, 2 Ohio St. 382. And, in case of an unforeseen event, or one that the testator has overlooked, nothing can be added or changed, on conjecture that the testator would do so, for that would be making rather than construing the will. See 1 Rop. Leg. 322-327. See also remarks of Ranney, J., as to intention, in case of Simpson v. Clyde, 4 Ohio St. 455.
    The testator intended the legacies to be paid, if the fund should be sufficient. He intended, also, the debts to be paid out of the fund and not to come upon the devisees. He intended the debts to- be paid first, and the legacies out of the remainder, if sufficient. 1 Story’s Eq. Jur., sec. 573 ; 2 Lead. Cas. in Eq. (3 ed.) 252, 254.
    The devises in question in this case are, in form of expression,. as well as subject, specific. And this is not a case of legatee against residuary devisee, who is claiming to shield himself with the old rule that residuary devises of land are specific. The form is such as has always been held to indicate an intention to set apart the property, real or personal, and exempt it entirely- from pecuniary legacies and from debts, until all other parts, of the estate have been first applied. In this will, still stronger to show that intent, or to give it additional emphasis, the testator directs his executor to execute and deliver deeds to his sons for the lands devised. Howe v. Earl of Dartmouth, 7 Ves. 37; Wills Act, sec. 54 ; 2 Jarman on Wills, 393, notes a and b; Blaney v. Blaney, 1 Cush. 107; 2 Lead. Cas. in Eq., pt. 1, p. 375 (3 ed. 511); Bernard v. Condry, 16 Conn. 498; McMullen v. Brown, 2 Hill’s Ch. 459.
    *No reference is to be given to legacies to children. 1 Rop. on Leg. 291-298; Clyde v. Simpson, 4 Ohio St. 455, 458.
    The proposition, that general pecuniary legacies are entitled to contribution from specific devisees, is certainly new. And it has to face a long-established rule and a legislative enactment to the contrary. 2 Jarman on Wills, 365; 2 Lead. Cas. in Eq., pt. 1, p. 181; Rop. on Leg. 253; Hill on Trustees, 523; Wills Act, sec. 59.
    A general pecuniary legatee can not marshal property, real or-personal, specifically devised or bequeathed, nor call upon such specific bequests for contribution. Clifton v. Burt, 1 P. Wms. 678, and Cox’s note; 1 Maddox Ch. 617; Keeling v. Brown, 5 Ves. 359; Livingston v. Livingston, 3 Johns. Ch. *148, *158; 2 Jarman, 393, and cases cited in note 1; Ward on Leg. 184 (18 Law Lib.) ; 1 Rop. on Leg, 253; 2 Bouv. Dic., title Marshaling Securities; 1 Story’s Eq., sec. 565; Aldrich v. Cooper, 2 Lead. Eq. Cas., pt. 1, Eng. note, pp. 153, 154, and cases cited; Am. note, pp. 181, 186, 187 (3 ed. 257).
    Our statute (the 58th and 59th sections of the wills act) was-drawn with reference to the existing rules of law — among others, the rules as to specific devises and bequests.
    The words “ devised ” and “ estate ” are evidently used in a general, and not in a technical and limited sense. The sections establish the rule of contribution (or pro rata abatement) among all bequests and legacies, when encroached upon by debts; unless (as is always understood in the application of rules in the construction of wills) .the testator has otherwise provided.
    As to definition of a specific legacy, see 1 Bouv. Dic. 17, 3; 2 
      Lead. Cas in Eq., pt. 1, p. 352 (3ed. 479). For definition of a demonstrative legacy, see 1 Bouv. Dic. 17; 1 Rop. 150, 152; 1 Jarman, 173, note; 2 Jarman, 424, note ; Toller’s Ex’rs, 303; Fonblanque’s Eq. [365], [374], note; 2 Lead. Cas. in Eq., pt. 1, pp. 354, 355, 367, 376, 377; Williams’ Ex’rs (2 Am. ed.), 946.
    The legacy to plaintiff in this will is in these words: “ I give and bequeath unto my daughter, Mary Caldwell Glass, $1,500.” By the 13th clause, the testator directs his executors to sell his personal property and certain real estate, the proceeds * “ to be applied to the payment of my debts and the bequests herein made.” By this direction, the common fund is not set apart and relieved from, but is expressly subjected to, the burden of debts. The legacy is not to be paid out of the proceeds of the sale of the land alone, or out of any other specified and particular part, but out of all blended into one. The legacy is not to be paid out of it, before, and to the exclusion of debts, while some other part of the estate is first applied to debts, but the fund is primarily liable to debts, as well by express direction as by law. 12 Ves. 154; 1 Pow. on Dev., 22 Law Lib. 355 ; 2 Lead. Cas. in Eq. 215 (3 ed. 302); Story’s Eq., secs. 555, 556.
    Even then, if this fund was special, it being primarily liable to ■debts — under a provision directing payment of debts and legacies ■out of it — there is nothing given to the legatee which is exempted ■by the testator from primary liability to debts; that is, there is nothing which is specifically given.
    But in this case, the fund provided is not special, but the general personal estate. The lands were converted into personalty by the direction to sell. Ferguson v. Stewart’s Ex’r, 14 Ohio, 140; Collier v. Collier, 3 Ohio St. 374; Fletcher v. Ashburner, 1 Lead, Cas. in Eq. 593, 613; Note to Silk v. Prime, 2 Lead. Cas. in Eq. pt. 1, p. 217 (3d ed. 306); Ashburner v. McGuire, 2 Lead. Cas. in Eq. 352 (3d ed. 480) ; 2 Ves. 417; 3 Atk. 696, 693; Bouv. Dic. 17, 3.
    The devise, to the children, of the tract of land mentioned in the 14th item of the will, is not of the residue of the remainder estate •after the payment thereout of debts and legacies; and the legacies are not demonstrative. The remander estate is devised to the children, and is not subjected to debts and legacies. The residue, referred to, is not of that tract, but of the personal estate, after payment of the debts and legacies, as previously provided. But it makes no difference in this case, because a legatee or devisee is only .entitled to contribution when, and after, the property specifically bequeathed to him has been taken for debts; and the land referred to has not been sold, and the interest of plaintiff therein, whatever it may be, has not been taken.
    
      *St. Glair Kelly, for Samuel Dunn and others:
    1. Upon the facts as to the mortgage the legatees have no interest in the question as to the mortgage; because they have not been prejudiced by its payment out of the personal fund. If not so paid, there would still be nothing left for the legacies, the debts remaining unpaid being greater in amount than the mortgage money. The question is between the devisees.
    2. Where the testator is not personally bound for the debt, it is payable only out of the land subject to the specific lien of the mortgage. But where, as in this case, the mortgage is for a debt of the testator, the devisee of the incumbered land has a right to its payment out of: i. The general fund-or personal estate; 2. Lands devised to be sold for the payment of debts; 3. Lands, undisposed of by the will, and which have descended to the heir; and, 4. Lands charged by the testator with the payment of debts, and devised subject to that charge — that is, out of the first four classes of property subject to the payment of debts. 2 Jarman on Wills, 398; 1 Lead. Eq. Cas. 490; 2 Powell on Dev., 22 Law Lib. 359; Ram on Assets, 8 Law Lib. 241, and cases cited; 1 Lead. Eq. Cas. 491, 498; 2 Jarman, 398, 399; O’Neal v. Mead, 1 P. Wms. 693; Sutkins v. Leigh, Ca. T. Talb. 535; Gibson v. McCormick, 10 Gill & Johns. 67; Symon v. James, 2 Young & Coll. 301; 1 Story’s Eq., secs. 564 (and note), 565, 571; 2 Lead. Eq. Cas. 188 (Am. note); 2 Powell, 22 Law Lib. 359; Galton v. Hancock, 2 Atk. 438; Hallowell v. Tanner, 2 Russ. & Myl. 633, cited in 2 Jarman, 398. Our statute (wills act, secs. 58 and 59) does not change the rule. 2 Powell on Dev., 22 Law Lib. 358; 1 Story’s Eq., sec. 565.
    
      3. Skinner, for purchasers from devisees:
    It is clear from sections 62 and 63 of the wills act that purchasers from a devisee or legatee can not be held to contribute.
    The legacies given by this will are not liens upon the lands devised ; they are general pecuniary legacies, and their payment is neither charged upon the lands devised, nor upon the devisees personally. Lupton v. Lupton, 2 Johns. Ch. 614; *Wilkes v. Harper, 1 Comst. 586; Clyde v. Simpson, 4 Ohio St. 445.
    These legacies are not demonstrative. They are not payable out of a particular fund other than that which„in the absence of a direction of the will, the law would have pointed out to the executor. Story’s Eq. Juris., secs. 577, 571, 573; 2 Fonbl. Eq., book 3, sec. 3, note *; Adams’ Eq. 558, note 1; Livingston v. Newkirk, 3 Johns. Ch. 312; 2 Johns. Ch. 614.
    I claim, therefore, that these legacies are neither specific nor demonstrative, nor in the nature of specific legacies. And the estate of the testator, other than the devised lands, having been taken by the executor wholly for the payment of the debts, these legacies being but general pecuniary legacies, abate and fail for want of properly of the testator applicable to their payment.
    As to the mortgage: The debt it secured was a personal one created by the testator. It is to be presumed that the personal estate had the benefit of the loan the mortgage was given to secure, and it was properly paid out of the personal assets in exoneration of the devised land. 1 Hilliard on Mort. 339-342; Story’s Eq., sec. 571; Fonbl. Eq., book 3, ch. 2; Adams’ Eq. 555, note 2; 3 Johns. Ch. 257; White’s Eq. Cas. 447, 453; 2 Yates, 54; 9 S. & R. 71, 73. This was, manifestly, in accordance with the testator’swill. Story’s Eq. 573; 3 Johns. Ch. 312; 1 Comst. 120.
    The devise to Robert Dunn, of the rents and profits of the-farm, is to be construed as a devise of the land itself, for his natural life. Com. Dig., title Devise, note 1; 9 Mass. 355.
    The 14th clause of the will directs this land to be sold at Robert’s-death, and the proceeds divided among- the heirs of the testator. They take by descent and not by devise. 4 Kent, 593; 7 Cush. 161; 1 Jarman on Wills, 67.
    This land, therefore, should be taken in preference to devised estates, for the payment of debts and legacies, and can be ordered-to be sold subject to Robert Dunn’s interest.
    The direction, in the 14th clause of the will, to sell this land upon the death of Robert, is not to provide a fund for the payment of debts or legacies. It is simply a bequest of the proceeds of such sale to the heirs of the testator. The language, *in the latter part of that clause, “ together with all remainders or excess, after paying the within and aforementioned bequests by me herein made,” is not an appropriation of any part of these proceeds to-■the payment of legacies, but is a bequest to all the heirs of the testator, of any excess of his personal estate after debts and legacies are paid.
   Welch, J.

The plaintiffs are clearly entitled to the relief they seek against Caldwell and William Dunn, so far as regards the mortgage debt. It seems to be well-settled law, that a specific devisee of land incumbered by a mortgage, can not, as between him and general pecuniary legatees — and a fortiori he can not, as between him and specific legatees or devisees — avoid the burden of paying the mortgage debt. He takes the land cum onere, unless the debt can be satisfied out of the personal assets, after payment of debts and legacies, out of land descended to the heir, or from some fund provided in the will for its payment. As between him and his co-devisees and legatees, he takes only the equity of redemption in the land devised, and must himself pay the mortgage debt if it is to be paid. It follows that the amount so paid by the executor upon this mortgage must be refunded by Caldwell and William, in proportion corresponding with the value of the land -of each, to be applied by the executor in payment of the debts and legacies.

It is claimed for plaintiffs, in the second place, that by the provisions of the 14th item of the will, the proceeds of the sale of the one hundred acre tract devised for Robert’s life support, are to be added to the fund for the payment of debts and legacies, and that the eight children named therein take nothing by that item but the residuum of the whole fund. We do not so understand the item. We ■construe it as giving to them, specifically and absolutely, the proceeds of the land, together with the residuum of the fund for payment of debts and legacies. The item is curiously worded, but it seems to us plainly inadmissible to give to it the construction claimed for it on behalf of the plaintiffs. The last clause of the -the item, “ after paying,” etc., evidently refers to, and qualifies, the words “remainders or excess,” and was not ^intended to make the bequest of the “proceeds” residuary or conditional.

It only remains to inquire if the plaintiffs are entitled to contribution from the specific devisees. If they are not, then the legatees take nothing by the will, because the money paid on the mortgage is less than the amount of debts still unpaid, and will not reach or benefit the legatees. As between specific legatees and devisees, where the property or money devised or bequeathed is taken to pay debts, and it can not be otherwise replaced, contribution may undoubtedly be enforced. And counsel may be correct in contending that, on principles of natural justice, and in the absence of authority, such ought to be the law also as between general and specific devisees and legatees. But the law has been settled otherwise by a long course of decisions which ought not now to be disturbed. If the law thus established is unjust, the remedy is with-the legislature, and not with the courts. The only legislation we have in Ohio on the subject is contained in sections 58 and 59 of the wills act, 2 S. & C. 1627, which seem to us to be substantially declaratory of the common law, so far as this question is concerned. Section 58 is as follows :

“ Sec. 58. When any estate, real or personal, that is devised, shall be taken from the devisee for the payment of the debts of the testator, all the other devisees and legatees shall contribute their respective proportions of the. loss to the person from whom the estate is taken, so as to make the loss fall equally on all the devisees and legatees, according to the value of the property received by each of them, excepting all as [as is] provided in the following section.”

If this section stood alone, the plaintiffs would clearly be entitled to the relief they seek. But section 59 seems, by an undeniable implication, to say, that property specifically devised or bequeathed is “virtually exempted ” from “liability to contribute.” The section is as follows:

“ Sec. 59. If, in such case, the testator shall, by making a specific devise or bequest, have virtually exempted any devisee or legatee from his liability to contribute, with the others, for the payment of the debts, or if he shall, by any Mother provision in the will, have prescribed or required any appropriation of his estate, for the'payment of his debts different from that prescribed in the preceding section, the estate shall be appropriated and applied in conformity with the provisions of the will.”

It is admitted that this is not to be understood as an exemption from liability to contribute to other specific devisees or legatees. It must, then, if it has any operation at all, refer to contributions sought by general legatees; and, in this sense, it is a mere affirmation of the law as it existed before.

It follows, therefore, that the right of the plaintiffs to contribution depends upon the question whether they are to be regarded1 as mere general pecuniary legatees, or whether their bequests are-not in the nature of specific legacies, or of the kind denominated. “ demonstrative legacies.” If of the latter kind, they stand on the same footing, so far as the right to contribution is .concerned,, with specific devises and legacies. But are they of this description? A demonstrative legacy is “a bequest of a sum of money payable out of a particular fund or thing.” It is a pecuniary legacy, given generally, but with a demonstration of a particular fund as the source of its payment.” It is, therefore, equivalent to,, or in the nature of, a devise or bequest of so much,- or such a part of the fund or thing specified. The legacies in question were not of this description. The fund provided was not for the payment of legacies alone. It was for the payment of debts also. It consisted, in part, of the fund set apart by the law for the payment of debts and legacies, and the testator merely directed that an addition should be made to that fund by selling part of the real estate. It was a general fund, for general purposes, and not a specific fund for a specific purpose. The provision is no more than a direction to change part of the real estate into money, thereby augmenting the personal assets, which the law itself sets apart for the payment of debts and legacies. The fund was primarily for the payment of debts, and was made up in the same way the law itself would have made it up, by selling land and adding the proceeds to the personal assets. Had specified parts of the ^property been set apart for the payment of these legacies, and specified parts thereof to the payment of debts, the case would have been different. Then, to the extent to which the fund designated for payment of legacies had been intrenched upon for payment of debts, the legatees could have compelled contribution. As it is, they must be regarded as general pecuniary legatees, and as such are not entitled to call upon the devisees to contribute.

A decree may be entered accordingly.

Day, C. J., and White, Brinkerhoee, and'Scott, JJ\, concurred.  