
    Todd against Todd’s Executors.
    THIS was an appeal from the Orphan’s Court of Dauphin county.
    The question arose upon the will of David Todd deceased; the material dispositions of which were as follows: “ As to “ such worldly estate wherewith it hath pleased God to bless “ me in this life, I give and dispose of the same, in the fol- “ lowing manner, viz: It is my will, and I order it, that my “ funeral charges, and all my just debts, be first paid and dis- “ charged. And as touching all the rest, residue, and re- “ mainder of my estate, real and personal, of what kind and “ nature soever the same may be, in the county of Dauphin “ aforesaid, I give and devise in the following manner, to “ wit: I give and devise unto my dearly and beloved wife, Ann “ Todd, the whole of my estate, both real and personal, dur- •“ ing her natural life, to be by her .used and occupied as she u shall see cause, only to be under the following restriction, “ that the lands are to be laboured yearly, in a regular man- “ ner, as they have been heretofore laboured, and there shall “ be no unnecessary waste made of the timber on the pre- “ mises, and all the buildings, of every kind, on the premises, ; 1 , ■ . . 1 . 1 ■ : 1 • ’ . > “ tóg’éfhef with all the fences on the same, are to be kept in “ tenantable repair; also, the whole of my personal estate shall “ also be held and enjoyed by her, during life as aforesaid, “ only what shall be hereafter willed and bequeathed. And “ further, it is my will, and I hereby order it, that as soon as “ convenient after my decease, there shall be a just and true “ inventory taken of the whole of my personal estate, and “ that the same be duly exhibited into the register’s office. “ And that she my said wife, shall only have the power of “ willing and bequeathing the one half of the amount of the (( said inventory, which half she may will and dispose of as ■*'c she sees cause. Provided nevertheless, that if she, my said “ wife, shall see cause to change her situation in life, and marry some other man, it is my will, and I order it, that u she shall than move off the premises, and thereafter she il shall only receive the one half of the profits or benefits, “ which may arise from the aforesaid land and improve- “ ments, and then the other half of the rents and profits aris- “ ing therefrom, it is my will, and I allow, that they shall be iC equally divided between my nephews, James Todd and “ William Johnston, until my nephew David Todd arrives to u the age of twenty-one years. And if it be so ordered by “ Divine Providence, that she my said wife shall die, before' “ that the said David Todd arrives to the age aforesaid, I “ will and allow, that the whole of the rents and profits afore- “ said, be divided as aforesaid, between the said James Todd a and William, Johnston, they paying due attention to the re- “ gulations herein before mentioned, to her my beloved wife, “ respecting the lands and improvements aforesaid, while u under her tenure.”' — [Here follow some legacies.] — “ And “ further, it is my will, and I allow, that after the decease of “ her, my said wife, and the said David Todd shall have ar- “ rived to his lawful age aforesaid, I give and devise, will “ and bequeath unto him, my abovesaid nephew, David Todd,, u the whole of my lands and improvements whatsoever, which “ I now hold and enjoy in the county of Dauphin aforesaid, to “ be held, occupied, and enjoyed by him, his heirs and assigns, “ upon his paying to the after-named persons, the after- “ named legacies, at the times hereinafter mentioned.”— [Here follow fifteen legacies of 50 pounds, each, to his nephews and nieces.] — •“ And further, it is my will, and I here- “ by order it, that at the end of one full year after the afore- « said David Todd comes into the possession and occupation « of the aforesaid lands and improvements, to him before « given and devised, willed and bequeathed, he shall pay to “ each and every one of the aforenamed heirs and legatees, “ the one full half of their respective shares and legacies, and “ further, in one full year after that, he shall pay unto each “ of the heirs and legatees aforesaid, the other half and re- “ mainder of their respective shares and legacies aforesaid. “ And further, it is my will, that after the decease of her, “ my said wife, there shall be paid unto my brother-in-law, “ Robert Hill, the sum of ten pounds out of the half of my “ personal estate before reserved; and also, there shall be “ paid unto my aforesaid nephew, William Johnston, the sum “ of twenty pounds out of the reserved half aforesaid, and “ the residue and remainder thereof, I will and allow, to be “ equally divided amongst those my aforesaid nephews and “ nieces.” The testator left a widow and several nephews and nieces, but no children. His personal estate amounted to 6474 dollars 92 cents. He was indebted to the amount of 5584 dollars and 66 cents ; and the tract of land devised to his nephew, (which constituted his whole real estate) was ■worth about 4000 dollars. The court below decided, that the debts of the testator were to be paid out of his personal, and not out of his real estate. From this decision the defendants appealed.
    
      A, by will, directed his justdebtstobe first paid and discharged; and as touching the rest, residue, and remainder, as follows, &c. He next gave his wife the whole of his real and personal estate during her life, and directed it to he worked in the manner it had usually been. He directed, that an inventory should be taken ofhis whole personal estate, and that bis wife should have the power of bequeathing one half thereof, 8tc. He then devised his whole lands and improvements to his nephew in fee, upon his attaining 21, and after the death of his wife, charged with'legacies to the amount of 2000 dollars. The personal estate was worth 6479 dollars 92 cents: the land was worth about 4000 dollars, and his debts amounted to 5584 dollars 66 cents. Reid, that the personal estate was first to be applied to the payment of his debts.
    Lands are liable to the payment of the debts of a deceased person: nevertheless, the personal «state is to he first applied, unless the contrary is directed by the testator.
    
      
      Fisher and Duncan for the appellants contended,
    that although personal estate is liable in the first instance to the payment of debts, yet the real estate may be subjected in its stead, by the manifest intent of the testator, or by necessary implication. 2 Atk. 624-5. 3 Atk. 202. A devise to a widow for maintenance is favoured in law; and if the devise to her of personal estate would come to nothing by being applied in payment of debts, the debts shall not be paid out of the personal estate. 2 Fern. 718. Here the intent of the testator is manifest from the directions that an inventory should be taken of his personal estate, and that his wife may dispose by will, of one half the inventory ; a provision which would be defeated by first applying the personal property in satisfaction of his debts. The testator intended a specific legacy to the wife, out of the personal estate; a particular provision for her. Stapleton v. Colville,
      
       1 Roper on Leg. 6 Mass. Rep. 151. 154. Bamjield v. Wyndham,
      
       Hannum v. Spear,
      
       Hassenclever v. Tucker,
      
       Amb. 581.
    
      Elder and Hopkins contra.
    The general principle of our law is, that lands are to be resorted to for the payment ofdebts, only when the personal property is insufficient. This rule prevails as to the debts of deceased persons, unless the testator has directed otherwise. But the intention to do so must be manifest. Merely .making lands chargeable with debts, does not exempt the personal estate, 3 Atk. 202. 2 Fonb. 290. 1 Cox, P. Wms. 294. Here the testator’s first object was payment of his debts : He therefore first orders them to be paid, and then devises only the residue of his estate real and personal. If the arguments of the appellants prevail, the appellee is a devisee of land from which he derives no advantage : for the land is worth but 4000 dollars, and the debts excéed that sum; whereas, if the personal estate pays the whole debts, there would remain 500 dollars dear of commissions. Besides, by the construction contended for by the appellants, the legacies to the amount of 2000 dollars charged on the land, would be all lost. The real and personal estate being given to the same person, affords an argument that the personal estate was not to be exempted. Amb. 36. 3 Wms. 324. Land specifically devised shall not pay debts in exoneration of personal estate, in favour of specific legacies. Clifton v. Burt,
      
       3 Wms. 324. Amb. 34. 6 Mass. Rep. 151. The testator meant to perpetuate his name, by giving his land to his nephew who bore his own name. He gave to him, on attaining the age of 21, the whole of his land and improvements whatsoever, charged with 2000 dollars legacies. 2 Dall. 189. 1 Roper, 25. Galton v. Hancock.
      
    
    
      
      
         Cas. Temp. Talb. 202.
    
    
      
      
         Prec. in Ch. 101.
    
    
      
      
         2 Dall. 292.
      
    
    
      
      
         2 Binn. 525.
    
    
      
       1 P. Wms. 678.
      
    
    
      
      
         1 Atk. 31.
      
    
   Tilghman C. J.

This is an appeal from a decree of the Orphan’s Court of Dauphin county, on a case arising from the will of David Todd, deceased: The question is, whether the testator’s personal estate or any part of it, was exempted by his will from the payment of his debts ? It is a question between the testator’s widow and David Todd, the younger, liis nephew, and devisee of his land, and I shall consider it as turning solely on the intention of the testator, for although no man can prevent his creditors from resorting to his personal estate, yet as between his own legatees and devisees, his will, expressly declared, or appearing by plain implication, must govern. By the law of Pennsylvania, lands are liable to the payment of debts ; nevertheless the personal estate is the fund to be first applied, unless the contrary is directed by the testator. It is incumbent therefore, on one who contends for the exemption of the personal estate, to show that it was so ordered by the testator. The will of David Todd begins with directing that all his just debts should be first paid and discharged, and as touching the rest, residue, and remainder, of his estate, real and personal, he gave it as follows, &c.; he next gave to his wife, the whole of his real and per-) sonal estate, during her life, and directed that his land should-be worked in the manner it had usually been, and all the buildings and fences kept in good repair ; so far, we see nothing of an intent to exempt the personal estate. But the, appellants rely- on a subsequent clause, in which the testator-directs, “ that after his decease, there should be an inventory, “ taken of his whole personal estate, and that his wife should, “ only have the power of willing and bequeathing the one-half “ of the amount of the said inventory; which half she might “ will and dispose of as she saw cause.” After this followed a devise of the testator’s whole lands and improvements whatsoever, to his nephew David Todd in fee, upon his attaining the age of 21 years, and after the death of his wife, charged with the payment of legacies to the amount of $2000. Last of all, the testator gave to several persons, the half of his personal estate before reserved. The testator’s •whole personal estate amounted to $6474 92cts. He was indebted to the amount of $5584 66 cts. and the tract of land •devised to his nephew, consisting of-about 200 acres (his whole real estate) was worth about $ 4000. It is contended by the appellants that the personal estate was specifically ber queathed, and that there was a manifest intent to exempt it from the payment of debts. On the contrary, it appears to me that the intent was, to apply the personal estate, as usual, to the payment of debts, and when the whole personal estate is given to the wife for life, &c. it is to be understood with reference to the prior direction — that all debts should be first paid. That is to say, the wife should take all the personal estate which remained after payment of debts, &c. If it be said, that the personal estate was intended for the wife, it must be remembered that so also was the land-intended for the nephew. And in such case, the testator having given no express direction which should be first applied to the payment of debts, the rule of law must prevail, which makes the personal estate the proper fund. This would be the construction, if we looked only at the face of the will. But when the circumstances of the testator’s estate are taken into consideration, the argument is much stronger in favour of the nephew. The personal estate was sufficient to pay all the debts, and leave a surplus of above §500, after satisfying all charges and commissions of the executors. The whole of this and. all the land, the wife would enjoy for life, by which she would be well provided for. But if the debts were thrown on the land, the whole would be swept away, and thus the nephew disinherited, and legacies given to fifteen different persons, to the amount of §2000, totally lost. This is such a subversion of the main intent of the will, that it will not bear a moment’s consideration. So that, whether we confine ourselves to the writing or connect it with important extrinsic circumstances, it cannot be said that the testator has manifested an intent to depart from the general rule, by which the personal estate is to be first applied to the payment of debts. The Orphan’s Court made their decree conformably to this principle, and I am of opinion, that the decree should be affirmed.

Yeates J.

It is not denied that a testator may substitute any fund he may think proper, for the payment of his debts, or that his personal estate is the natural fund for that purpose. The settled rule is, that unless the testator by express words exempt, or otherwise manifest his clear intention to exempt, his personal estate from the payment of his debts, it shall be applied towards the discharge of them- It is also settled, that a testator devising all his real estate, subject to the payment of debts, will not alone be sufficient to exempt the personal estate. All the cases on this subject are cited in 2 Fonblanque, 290, 291. and in Coxe’s note to 1 P. Wms. 294.

From whence then is this plain intention to be collected, that the testator’s personal estate should be exempted ? It has been contended that the devise of one-half of the amount of the inventory to the widow, is a specific devise, and that a special purpose was designated thereby, that she might will, or dispose of it, as she saw cause. But the will directs, in the most express terms, that the funeral charges and all his just debts, should be first paid and discharged; and as touching all the rest, residue, and remainder, of his estate, real and personal, he gives the whole of it to his wife during life, to be by her used and occupied, the lands to be laboured regularly as theretofore, no waste to be made of the timber, and the buildings and fences to be kept in tenantable repair. After the death of the widow, he devises to his nephewjDuíuí? To del, the whole of his lands in fee simple, subject to the payment of $2000. The devise of the lands was specific, and the special purposes of the support of the widow and payment of one-half of their supposed value to the collateral branches of the testator’s family, are designated. To his favourite namesake, David Todd, he must have intended a bounty, and it conforms more strongly to the general meaning and spirit of the will, that the debts should be paid out of the personal estate, than out of the real estate of the testator. The widow, by plain words, takes nothing until his debts should be paid. The testator unquestionably mistook either the value of his estate, or the amount of his debts, but we have no power to rectify his mistakes. Be this as it may, no plain intent can be deduced from this will, to exempt the personal estate from the payment of the debts, and the general provision of the law must therefore be applied to the instance before us. I am of opinion, that the decree of the Orphan’* Court be affirmed.

Brackenridge J, concurred.

Decree affirmed.  