
    *Downman v. Rust and Others.
    
    December, 1828.
    Legacies — When a Charge on Realty. — Although legacies do not stand upon as high ground as debts, yet if the personal fund be inadequate, or if there be expressions in a 'Will, tending to show that the Testator had the land in bis mind, a Court will make them acharge on the land, rather than they shall go unpaid.
    Same — Same—Case at Bar. — Therefore, where a single woman, having but little personal property, and real estate of considerable value, having only one brother, who would have been ber heir and dis-tributee, by her Will bequeaths pecuniary legacies to two of her friends, as tokens of affection, and makes the brother Executor, and residuary legatee, she must be considered as intending that the legacies should be paid out of the land, and they were decreed to be a charge upon it.
    Same — Same—Same  — The Devisee of the land on, -wiiicli such charge is marte, having conveyed the land in trust for payment of his own debts, and the land being sold by the Trustees, under the Deed, the purchaser having notice of the legacies, is bound to see to the application of the purchase money, and the land held tobe chargeable in his hands with the payment oi the legacies. So held, not on the ground that the purchaser is guilty of fraud, but on the principle of Caveat emptor.
    Olivia Downman and Sarah Downman, filed their Bill in the Superior Court of Chancery at Fredericksburg, against the Appellee, Benjamin D. Rust, both in his own right, and as Executor of Elizabeth H. Rust, and others, to recover certain legacies bequeathed to the Complainants by the said Elizabeth H. Rust. After directing the Executor to pay all just debts of the Testatrix, the Will proceeds in the following words: “It is also my will and desire that my Executor pay to Mrs. Olivia Downman $400 as a small token of my sincere love and gratitude for the parental like love and affection which she has manifested towards me and in the event of the death of Mrs. Olivia Downman before my Executor can make her the said payment, it is my will that the said sum of money be equally divided among her heirs. In like manner it is my will and desire that my Executor pay to Miss Sarah Downman of Moratico $200 as a small token of my love and gratitude for the sis-terlike attention she has always paid me to be distributed among her heirs equally in case of her death before my Executor can pay her the said sum *of $200.” The Testatrix then devises all the rest of her estate, real and personal, in fee simple, to her brother, Benjamin D. Rust, and appoints him Executor. The Bill states, (and the Defendant Rust admits in his Answer,) that the said Rust subsequently qualified as Executor: that the said Elizabeth H. Rust lived for many years before her death in the family of Olivia Downman, the mother of Sarah Downman, and was treated with the utmost tenderness and affection: that Benjamin D. Rust was the only brother of the Testatrix, and that she left neither father, mother, nor sister: that the personal estate of the said Elizabeth H. Rust, at the time of making her Will, and at the time of her death, about a month afterwards, did not amount to more than 60 or 70 dollars. It does not appear that the Testatrix left any debts. Elizabeth H. Rust, when she made her Will and at the time of her death, was seised of a tract of land of considerable value, called “Islington,” on the Rappa-hannock. upon which Benjamin D. Rust entered as Devisee of his sister. On the 1st day of January, 1822, the Defendant Rust conveyed the land in question to Trustees, for certain purposes expressed in the Deed, and subsequently executed another Deed of Trust, conveying the same land to another Trustee, for the purpose of securing a debt due to one David Greenlaw. The land Was offered for sale by the Trustee in the last Deed. a,nd the said Greenlaw became the purchaser. It is stated in the Complainants’ Bill, and not denied by the Defendants, that the Complainants gave notice of their claim to the Trustee and purchaser, to have their legacies satisfied out of the land. The Bill was filed for a settlement of the account of the Executor, and payment of the legacies out of the personalty, if sufficient, but if not, praying that the legacies may be considered as a charge upon the land. Rust, both in his own right, and as Executor, is made a Defendant, and also the Trustees in the two Deeds of Trust, and Greenlaw, a purchaser under one of those Deeds. It is stated in the Bill, that no inventory, appraisement, or account of sales, had been returned. *The Chancellor directed the Executor to settle the account of his administration, and ordered the Bill of the Plaintiffs to be dismissed as to the Trustees, and as to Greenlaw, the purchaser; from which Decree the Plaintiffs appealed.
    J. M. Patton, for the Appellants.
    Johnson, for the Appellees.
    
      
      For monographic note on Vendor and Purchaser, see end of case.
    
    
      
      Legacles — When a Charge on Realty. — In Read v. Gather, 18 W. Va. 257, it is said: "Whether a legacy is a charge upon the real estate devised in a will is a question of intenlion upon the part of the testator According to the English rule that intention Is to be derived exclusively from the provisions of tbe will: and parol evidence is inadmissible to aid in ascertainingthatintention. 1 Rop. Leg. 451 (576. 4 Ed.): Parker v. Pearnley, 2 Sim. & Stu. 592. In Virginia tbe rule is not so strict; and parol evidence is admissible. Downman ¶. Dust, 6 Sand. 587: Clark v. Buck. 1 Leigh 490; Trent v. Trent. Gilro. 174. Chancellor Kent thus states the law: that the real estate will not be charged with the payment of legacies, unless the intention of the testator to that effectis expressly declared, orclearly to be inferred from tbe language and disposition of the will; and that it was not sufficient, that debts or legacies are directed to be paid, that alone does not create the charge; but they must be directed to be first or previously paid, or the devise declared to be made after they are paid. Lupton v. Lupton, 2 Johns. Ch. 614.”
      To the same effect the principal case is cited in Gawv. Huffman. 12 Gratt. 633: Hughes v. Tabb. 78 Va. 327; Lee v. Lee. 88 Va. 809, 14 S. E. Rep. 534; Thomas v. Rector, 23 W. Va. 34: Bird v. Stout, 40 W. Va. 46. 20 S. E. Rep. 853; Hogg v. Browning, 47 W. Va. 22. 34 S. E. Rep. 755.
      See further, monographic note on ‘‘Marshalling Assets” appended to Carrington v. Dtdier, 8 Gratt. 260; monographic note on "Legacies and Devises” appended to Early v. Early. Gilm. 124.
    
    
      
      Trusts— Purchaser — Application of Purchase Money. — On this subject, the principal caséis cited in Lamar v. Hale. 79 Ga. 159: Rorer Iron Go. v. Trout. 83 Va. 415. 416,2 S. E. Rep. 713; VVoodwine v. Woodrum, 19 W. Va. 73.
    
   December 17.

JUDGE CARR

delivered his opinion.

Upon this case, two questions arise: 1st. Whether by the Will, the legacies are charged on the lands? 2d. If so, does that charge follow the land into the hands of the purchaser? It would seem almost useless to discuss the first point, since Counsel, so able and so diligent, felt himself obliged to admit, that in the hands of the devisee these lands were chargeable. I will, however, say a few words on the subject. Every question of a charge on land under a Will, is a question of intention. In the case of debts, it is so natural to suppose that a man in that solemn act, intended to be just, that Courts have taken very slight words in a Will to imply a charge upon lands. The Books are full of such cases. Trent v. Trent, in Gilm. Rep. 174, is one of that class. Legacies do not stand on quite so high ground, being voluntary gifts; but, yet every man is supposed to intend that they shall be paid, and to have settled in his mind the fund for their payment: and if there be no fund but land, or if there be expressions tending to show that the Testator had the land in his mind, the Court will turn them upon the land, rather than they should go unpaid. Thus, in Elliot v. Hancock, 2 Vern. 143, Testator devised 51. per annum to his eldest son for forty years, if he should so long live, and to his second *son, whom he made executor and residuary legatee, he devised his real estate in tail, with several remainders over. The Executor paid the annuity for twenty years, and then died. Decreed, the land should be liabie to the annuity, though there were no express words to charge it, the devisee being Executor, and the heir, who was disinherited, having no other provision. Alcock v. Sparhawk, 2 Vern. 228, J. S. by his Will devised his lands to his brother (who was his heir at Law,) in fee, and giving sundry legacies, made his brother his Executor, desiring him to see his Will performed. Per Curiam. “The lands are subject and liable even on the face of the Will. Testator needed not to have devised the lands to his brother, for he was his heir at Law, unless he intended his brother should take them, subject to his legacies: but he is devisee and executor, and is desired to see the Will performed; and therefore, a much stronger case than that of Cloudesley v. Pelham, 1 Vern. 411, Note. This Decree was affirmed in Parliament.” Ambrey v. Middleton, 2 Eq. Ca. Abr. 497, pl. 16. ‘‘As to alt my worldly estate, I give and dispose thereof in manner following:” and then Testator gave several pecuniary legacies, and several annuities for lives, to be paid byhis Executorand next he devised all the rest and residue of his goods and chattels and estate, to his nephew, Middleton, (the Defendant, and heir at Daw to the Testator.) and made him sole Executor. The question was, if the real estate be chargeable with the legacies and annuities, in default of the personal estate? And Cowper Ch. was of opinion, that by the devise of all the rest and residue of his goods, chattels and estate, all his lands did pass to his Executor, and that he took by the Will, and not by descent, as heir at Daw: and that the lands so devised to him, were chargeable with the pecuniary legacies and annuities, when the personal estate fell short to satisfy the same, and decreed accordingly.

Compare the case before us with these. The Testatrix a single woman, having one brother, who would have been *her heir and distributee, and having scarcely any personal estate, but real estate to the value of five or six thousand dollars, leaves to Mrs. Olivia Downman, in whose house she had lived, and tp Miss Downman, her daughter, to the first $400, and to the last $200, to be paid by her Executor. All the rest of her estate, real and personal, she gives to her brother, and makes him her Executor. She certainly intended that these legacies, given as tokens of love and gratitude, should be paid. Out of what fund? Not the personalty, for she had none; certainly out of the land: and therefore, she devised it to her brother, that he might take it under the Will, and not by descent; and she made him Executor, and directed him to pay the legacies: and the rest of her estate, real and personal, she gave to him. I can have 'no doubt that under this Will, and the settled course of decisions, the land is chargeable with the legacies.

The second question, does the charge follow the iand into the hands of the Defendant, Greenlaw? Was the one most strongly contested. It was not pretended that Greenlaw was a purchaser without notice, nor can he occupy that ground at all. A Defendant, who claims to be a purchaser without notice, must expressly deny notice in his Answer, though it is not charged- in the Bill. This is settled Law. Here, it is charged in the Bill, that at the sale under the Deed of Trust, an Agent for the legatees attended, expressly forbade the sale, and gave notice, that the land would be held liable for the legacies; and neither of the Answers denies this allegation. We must consider the question then upon other' grounds. Neither do I think this question turns upon the point of fraud, as was strongly contended by the Counsel for the Appellee. Let us first enquire whether the Defendant, Rust, is to be taken as a Trustee, and the land as trust property, so far as relates to the legacies? In discussing- the first question, we have come to the conclusion, that the legacies were (in defect of personal property) charges upon the land. There seems *to have been at onetime, a difference of opinion, whether a mere charge upon land created a trust, like a conveyance to Trustees, but it is now settled that it does. See Bailey v. Ekins, 7 Ves. 319; Shiphard v. Lutwidge, 8 Ves. 26. Those cases show that it is as much a trust as a direct conveyance or devise to Trustees for the same purpose: the only difference is, that in that case, the trust arises by construction of Equity; while in this, it is produced by the express declaration of the party; and when the trust is in esse, it seems wholly immaterial by what means it hats arisen. See Sugd. 335-6. Considering the Executor a Trustee, and this land trust property, so far as the legacies were concerned, the doctrine on which the case of Otr turned has been relied on. 5 Rand. 195. In that case, the party was considered as contracting with Orr, first, in the character of Executor, and secondly, in the character of a full Trustee. In the latter character, it was shown from the cases of Andrew v. Wrigley, 4 Bro. Ch. Cas. 125; Read v. Snell, 2 Atk. 642; Mabank v. Metcalf, 3 Atk. 95, and Ithell v. Beane, 1 Ves. sen. 215, “that a Trustee cannot alien in payment of his own debt.” The Deeds of Trust in the case before us, were made expressly and solely, to secure the debts of Rust, and the land was sold to raise those debts. But there was another aspect in which the question was more especially considered in the argument, that is, whether this'be a case in which the purchaser, even supposing him to have notice, is bound to see to the application of- the purchase money. It was acknowledged, that legacies enumerated, are like scheduled debts, so far as the question, whether the purchaser shall see to the application of the money is concerned. But it was contended, that in no case, either of debts or legacies, was a purchaser bound to look to application, where the charge was not express, but created by implication and construction. The Counsel referred to no case which took this distinction between an express and an implied charge, nor have I been able to find any. All the cases (and there are many cited *by Sugden in 11th Ch.) go upon the distinction between a limited and a general trust. In the first (however created) the purchaser is bound, in the last, he is not. The Counsel placed it on the ground of fraud, and said it would be harsh doctrine, to pronounce it fraudulent in a purchaser to deal with Rust as owner of the land, when there was a clear devise of it to him, and the charge was so far from being clear, that none but a lawyer would detect it. But I see none of the cases, nor of-the elementary writers, placing this doctrine on the foot of fraud. It seems to depend rather on the doctrine caveat emptor; he who purchases from another must look to the title, must know the authority of the seller. Whether the charge on the land be express, or implied, if it is a charge, it equally binds, and must be equally protected. Upon the whole, I think that the Decree dismissing the Bill against all but the Executor, must be reversed, and the cause sent back, with directions to the Court below, that for so much as the personal estate shall fall short of paying the legacies, they constitute a charge upon the land.

JUDGES CABELL and CO ALTER concurred, and the Decree was reversed. 
      
      Absent, tbe Presidenti and Judge Green.
     