
    Hiram Clyde v. Moore Simpson et al.
    A. S., by bis will, devised all his real and personal property, subject to the payment of his debts and the support of his widow, to M. S., and directed him to pay a specific amount of money to each of his other children. M. S., after accepting the devise and taking possession of the property, sold the real estate to one having notice that the legacies were not paid, and that the purchase money was not to be applied to their payment.
    
      Seld, that the legacies were a subsisting charge upon the property.
    Express words are not necessary to charge pecuniary legacies upon the real estate. An intention to do so may be derived by implication.
    But where a devisee is not directed to pay such legacies, and they are sought to be charged upon the property devised, on failure of the personal fund, or in exoneration of that fund, the language of the will must be so explicit as to enable the court to see clearly that the testator contemplated such charge, and intended to provide for it.
    
      ' If the devisee is required to pay them as a part consideration for the property, the law attaches an equitable lien for the security of the legatees, unless it clearly appears that the testator intended to exonerate the property from the charge.
    In the one case, the burden can not be established without a clear conviction that the testator intended it; in the other, the burden being express, the charge will exist, unless it appears with equal distinctness that the testator intended otherwise.
    *A devisee in trust, or subject to such a charge, has the power to sell the estate.
    
      But where the trust or charge is of a defined and limited nature, the purchaser must see to the application of the purchase money; otherwise, when it is general and unlimited.
    In cither case, when the purchaser has notice that the devisee is committing a breach of trust, or that the purchase money is not to be properly applied, he will b.e compelled to hold the property subject to the charge.
    In chancery; reserved in Ross county.
    The bill was filed July 27,1849, by the complainant, chiefly for the purpose of determining whether certain legacies given by the will of Andrew Simpson, deceased, to his children and grandchildren, were charges on the land devised by said Andrew Simpson to his son, Moore Simpson, and which the complainant claimed to have purchased from said Moore; and, in ease said legacies were charged on said land, whether the complainant, as such purchaser, was bound to see to the application of the purchase money.
    The case made by the bill is this: On May 31, 1837, Andrew Simpson, of Ross county, Ohio, made his last will. He died in October, 1841, and on November 1 of that year his will was,admitted to probate, and letters testamentary granted to Andrew Simpson, the executor named therein, who thereupon qualified as such executor.
    The devises contained in the will are as follows:
    “Item. — I give and devise unto my son, Moore Simpson, my plantation I now reside on, being a part of section No. 19, township 9, of range No. 20, northwest quarter of said section; and also 47J acres of the southwest quarter of section 18, township 9, range 20; and also all my personal property at my decease, except 2 cows, 5 sheep, and 5 hogs, on condition that I and my beloved wife Bethiah shall have and receive a reasonable support out of the effects, or produce of the above-named farm the whole term of our natural lives; and, finally, my will is that, after my and my beloved wife’s decease, *the whole of my personal property shall pass to my son, Moore Simpson, with the real estate as above stated; and that my son, Moore Simpson, shall pay to the five children of my son, John Simpson, deceased, to wit, Bethiah, Robert, Nancy, Elizabeth, and Jesse Simpson, being heirs at law, $250; and also Moore Simpson pay to my daughter, Elizabeth Hanson, wife of Hollis Hanson, late Elizabeth Simpson, $220; to my son, William Simpson, $20, he having received $200 at my hand already, which makes in all $220; and also that my son Moore pay to Matthew Simpson $220; and to -my daughter, Sarah Tan Gundy, wife of Peter Tan Gundy, $220; and also that my said son Moore shall pay to my son James $20, he having received $200 already, amounting in all to $220; and also that my son Moore shall pay to my son Andrew $220 — the one-half of the above legacies to be paid to the above-named heirs, by my son, Moore Simpson, in six months after my decease, and the other half in six months after my wife’s decease.”
    That the said Moore accepted said devises made to him as aforesaid : [and the proof shows that he took possession of the property described in the will, as early as the date of the will in 1837, and has continued in possession ever since; and that said Moore had, prior to the filing of the bill, paid off all of said legacies, except one moiety of that due Mrs. Hollis Hanson, and the whole of that due the heirs of John Simpson, deceased (see deposition of Andrew Simpson); and the complainant in his bill admits notice of these facts.]
    ' That under these circumstances, the complainant on October 6, 1848, purchased of said Moore, the real estate aforesaid, and took a conveyance for the same; the consideration being $1,600, $1,300 of which he paid at the time, and gave his note forthe residue of $300 at three months, purposely making said note payable to Moore Simpson alone, and not to his order, and naming the consideration thereof as land sold, in order that he might ascertain whether the unpaid legacies aforesaid, were charges on *the land, and to protect himself in case said Mopre failed to comply with a promise then made to relieve the land from said charges before January 1, 1849.
    The bill further states (among other things not now material to be noticed), that said Moore had utterly failed to comply with his promise to satisfy said unpaid legacies, and that thereby the complainant was in great danger of suffering a serious loss, not only to the extent of said note for $300, but for so much more as should be necessary to satisfy said unpaid legacies, in case the same were held to be charges on the land and he obliged to see to the application of the purchase money; for said Moore Simpson was insolvent, and unable to respond to a judgment against him, on the covenants in his deed. [This fact of insolvency of Moore Simpson, is admitted by the written agreement of the parties on file in this case.]
    That said note had been assigned to Thomas Miller, and Joseph W. McCague, partners under the name of Miller & Co., who had brought suit thereon in the name of said Moore for their use against the complainant.
    Bethiah Simpson, the widow of the testator, Andrew Simpson, deceased, and all the legatees named in the will, as well as Miller & Co., are made defendants to the bill, and all of them are required to set forth their claims, and an injunction is prayed to restrain Moore Simpson and Miller & Co. from prosecuting said suit at law, until the questions made by the bill were determined, and that on final hearing, in case said unpaid legacies were held to be charges on the land, and the complainant bound to see to the application of the purchase money, the said Moore- Simpson should be compelled to remove said charges by a limited time, or in default thereof, that said injunction be made perpetual, or in case said legacies were held not to be charged on the land, then that the legatees be enjoined from proceeding against the same, and that the complainant be quieted in his title, etc.
    To this bill Moore Simpson sets up in his answer (and establishes *by proof), that the conveyance made by him to Clyde, though absolute on its face, was, in fact, a mortgage (so stipulated by a written paper cotemporaneously executed), given to secure a loan of $1,600 made by-said Clyde to said Moore Simpson; the said note for $300 being part of the $1,600.
    Moore Simpson also admits in his answer, that one moiety of Mrs. Hanson’s legacy, and the whole of that due the heirs of John Simpson, deceased, are unpaid; but claims that the real estate devised to him by the will of his father was not charged with their payment.
    Mrs. Hanson and her husband, and the several heirs of John Simpson, deceased, answer the bill and set up the facts as to the non-payment of their legacies, insist that the same were by said will made charges on the real estate devised to Moore Simpson, and that said Moore, on accepting said devise, became a trustee for the payment of the same; that Clyde purchased said real estate with full notice of the trust, and that he is bound to see to the application of the said purchase money, and that they are entitled to come on said real estate in said Clyde’s hands and compel payment of their said legacies; and they ask the court for such decree as may be proper, etc.
    On the 8th day of May, 1851, Bethiah Simpson, widow of said Andrew Simpson, deceased, died, so that the second moiety of said legacies, made payable six months after her decease, would fall due November 8, 1851.
    At the October term, 1851, of the court of common pleas, the death of the said Bethiah, and the date thereof, was suggested upon the record; and at the same term it was made to appear that on August 1,1851 [the time stipulated for the repayment of the’ $1,600 loan made by Clyde to Moore Simpson, as set up in the answer of said Moore], the said Moore had settled with said Clyde, and that Clyde had thereupon reeonveyed said premises to said Moore; leaving no matter undetermined between them, except the question of costs. At the same time one ^William Miller, father of said Thomas Miller, and father-in-law of said Joseph McCague, announced to the court, that subsequently to the reconveyance of said estate by Clyde to Simpson, he had purchased the same of said Simpson and taken a conveyance therefor; but the court not regarding said announcement, proceeded to decree in substance that said Moore Simpson should pay said unpaid legacies by a given day, or in default thereof,' that execution should issue against him ; and if said execution were returned unsatisfied, then that said real estate should be sold for the satisfaction thereof. And that said Moore should pay the costs, etc.
    From this decree, Moore Simpson and Miller & Co. appealed, and uj>on the coming of the cause into the higher court, Hanson and wife and the heirs of John Simpson, deceased, obtained leave to file further answers by way of amendment and supplement, setting forth that on said 1st day of August, 1851, the said Clyde had re-conveyed the real estate described in his bill, to said Moore Simpson, who thereupon, on the same day, conveyed the same to one ‘William’ Miller, by deed, etc.; that said William Miller, at the time of said conveyance, was aware of the pendency of said suit, and of all the matters in controversy therein; that he also knew that the debts of said Andrew Simpson, deceased, had long since been paid, and respondent’s legacies wore unpaid, and that said real estate is charged in said Miller’s hands with the payment of said legacies.
    They also set forth the death of Andrew Simpson’s widow, on said May 8,1851, and pray that their answers may be taken as cross-bills, that William Miller be made a defendant, that said answers prayed to be taken as cross-bills may be answered, but not under oath, and that on final hearing, the proper decree may be made, etc.
    The cross-bills are answered, replications filed, and the cause is thus at issue.
    
      *Mr. Miller, for M. Simpson et al., cited authorities as follows, to the points below stated:
    Lands specifically devised are not to stand chargeable with pecuniary legacies. 3 Sugd. on Vend. 139, 140; Case v. Case, 1 Conn. 284. To charge the estate with such legacies the intention must be “ either expressly declared, or fairly and satisfactorily to be inferred from the language of the will.” 2 Jarman on Wills, 509, note 1; Wright v. Denn, 10 Wheat. 204; 2 Johns. Ch. g22. From the use of such words as “after payment of debts and legacies,” “my debts,” etc,, being first paid, the doctrine is that the debts in all such» cases constitute, by implication, a charge on the real estate. 2 Story’s Eq. J., sec. 1246; 2 Jarm. 510-520; see 2 Ves. jr. 320-322 (note); 3 Ib. 740; 5 Ib. 361. A general direction to pay legacies does not charge the real estate. 2 Johns. Ch. 624; 10 Wheat. 204; 2 Jarm. 509, and note. In this case, the lands, by law as well as by the will, were subject to the debts, funeral expenses of the testator, and also charged with widow’s support from the produce of the farm. If, then, the purchaser is bound to look to the application of the purchase money, he is at once involved in ascertaining the amount and payment of the debts, bound to see the money so applied that the widow shall receive her support, and bound to see that each minor grandchild, scattered through several states, duly receives his proper share.of the legacy left to his ancestor, although the same are not to be paid, as in this case, for fourteen years. In such case the rule is invariable that the purchaser is not bound to see the money applied. 2 Jarman, 511 (margin); Hill, 363; 3 Sugd. on Vend. 99-104, secs. 20-24.
    
      W. T. McClintock, for heirs of John Simpson, and Hollis Hanson and wife, cited authorities as follows :
    That express words are not necessary to charge the real estate with payment of debts or legacies, the question being one of intention, which may be inferred. 2 Jarm. 512; 1 Rop. Leg. *448; 2 Binney, 525 ; 6 Ib. 395; and the cases generally hereafter cited. That the words “ after my debts and funeral charges are paid, I devise and bequeath as follows ” (there being nothing of contrary import in the will), charge the estate with the debts. 2 Story’s Eq., sec. 1246 ; 2 Jarm. 512, et seq. That where both lands and personalty are devised to one son, who is directed to pay the portions of the others in money in lieu of the land, there is more than a charge on the personalty. Tower’s appropriation, 9 Watts & Serg. 103. That these unprovided children are placed on the footing of creditors. Webb v. Webb, Bernard, 86, cited in 1 Rop. Leg. 452; Lypet v. Carter, 1 Ves. 499; Hassanclever v. Tucker, 2 Binney, 525; and cases there cited in argument for plaintiff in error; in this connection, vide the case of Darnman v. Rust et al., 6 Rand. 586. “ That where the real estate is combined with the personal, i. e., where they are made to constitute one entire fund, •the former will be liable to all the burdens of the latter, and be charged with the debts and legacies.” 1 Rop. on Leg. 450, chap. 12 cases cited; 1 Ves. jr. 444; Bench v. Biles, 4 Mad. 187 ; Kidney v. Consmaker, 1 Ves. jr. 436 ; 2 Ves. jr. 267; Hassanclever v. Tucker, 2 Binney, 525 ; Wetman v. Norton, 6 Bin. 395 ; McLanahan v. McLanahan, 1 Penn. 96; Bank v. Donaldson, 7 Watts &. Serg. 407; Kelsey v. Deyo, 3 Cow. 133. That whenever the person directed to pay the debts or legacies is also the heir, or the devisee of the realty, then the realty is charged with the debts or legacies, unless there is some circumstance (as a particular fund, or the like, provided for the purpose) contained in the will repelling the idea of a charge on the realty. 2 Jarm., chap. 45, p. 509, and the cases therein cited, especially those on pp. 524-526, etc. That when the executor is directed to pay the legacies, the realty being devised to others, no charge is created; but when the executor is directed to pay, and he is also the heir or devisee of the realty, then the real estate is charged. 2 Jarm. 523. That the principle does not lie, as some *have supposed, in the fact of the devisee being the executor, except in so far as this necessarily includes the other fact, that the devisee is the same person who is directed to-pay the legacies. 2 Story’s Eq., sec. 1247a. That the principle that where the devisee is the only person who is directed to pay the legacies, the realty becomes charged with the payment, overrides the presumption of intention to pay out of the personalty, even though the direction is to the executor, eo nominee, and that upon this reasoning, the case of a devisee being directed to pay the legacies, though not named as executor, lies naked to the operation of the principle referred to. Morancy et al. v. Quarles et al., 1 McLean, 194; Mc-Lanahan v. McLanahan, 1 Penn. 96 ; Webb v. Webb, Barnard, 86; 1 Rop. on Leg. 453; and see Kelsey v. Deyo, 3 Cow. 133; Harris v. Fly, 7 Paige, 421; Alcock v. Sparhawk, 2 Verm. 228; Aubrey v. Middleton, 2 Eq. Cas. Abridg. 497; Cloudsley v. Pilham, 1 Verm. 411; Elliot v. Hancock, 2 Ib. 143; 2 Story’s Eq. 494, note 2; Hassel v. Hassel, 2 Dickens, 527; Henvel v. Whitaker, 3 Russ. 343; Dover v. Gregory, 10 Sim. 393; Lamphier v. Despard, 1 Conn. & Law, 204. That the intent is to be gathered from the whole will. Hawley v. Northampton, 8 Mass. 3; Cook v. Holmes, 11 Mass. 528. That “ in order to ascertain the intent, are to be considered, 1. The terms of the particulaiHbequest in their natural and legal signification ; 2. Other parts of the will; 3. The situation and circumstances of the testator, and the subject-matter of the particular bequest.” Jarvis v. Butrick, 1 Met. 480-483; Morten v. Perry, 1 Ib. 446. That it being conceded, that upon the acceptance of the devise, Moore Simpson became personally charged (Cook v. Grant, 1 Paige, 407, and cases cited by counsel), it does not follow that the real estate was thereby exempted; on the contrary, in all the cases the charge on the real estate is recognized in addition to the charge on the person. Henvel v. Whitaker, Cook v. Grant, Darnman v. Rust, Harris v. Fly, supra.
    
    *A conveyance by the devisee would pass the legal estate. He was a trustee. Hill on Trustees, 355. That purchaser was bound to see to the application of the purchase money. 2 Story’s Eq. J. sec. 1127; 2 Sug. on Vend. & Pur. 36, 37, 38, 51, 52 ; Hill on Trustees, 363, note; 2 Sug. on Vend. & Pur., chap. 17, 305 (p. 840, at bottom), sec. 27; Watkins v. Cheeck, 2 Sim. & Sta. 199; Gardner v. Gardner, 3 Mason, 178; Wormley v. Wormley, 8 Wheat. 421; Darnman v. Rust, 6 Band. 592, 593; Harris v. Fly, 7 Paige, 427.
   Ranney, J.

In the present position of this case, the whole controversy arises upon the supplemental answers and cross-bills filed by the unpaid legatees, and the answer of William Miller and Moore Simpson thereto; and the whole depends upon the solution of two questions:

1. Are these legacies, by the will of Andrew Simpson, charged upon the lands devised to Moore Simpson ?

2. If so, was Miller, the purchaser, bound to see that the purchase money paid by him, was properly applied in discharge of the lien ?

The legatees undertake to establish such a charge; and, as it stands admitted that Moore Simpson is wholly insolvent, it is evident that their only hope of obtaining payment, depends upon their success.

1. The will of Andrew Simpson was made in 1837, and was evidently executed under the mistaken belief that it took effect immediately and before his death. He lived until October, 1841, and his wife until May, 1851. Subject to the payment of his debts, funeral charges, and the support of himself and wife, he devised all his real and personal property to his son, Moore Simpson; and directed him to pay to each of his other surviving children, and the representatives of one deceased, about an equal sum of money; the one-half in six months after his own decease, and the other, in six months after the decease of his wife.

*Now, it is certainly clear that there is no express charge of these several legacies upon the property devised; and equally so that it was competent for the testator to make them a charge or not, as he saw proper. But an express charge was not necessary. While the intention of the testator, ascertained from the language he has employed, and construed with reference to the subjects of his dispositions and the objects of his bounty (Lessee of Worman v. Teagarden, 2 Ohio St. 382), must, in this as in other cases,' govern ; such intention may be deduced, as a matter of inference or implication, from all the provisions of the will taken and considered together. And in cases like this, I apprehend the intention to be established is rather that of placing the devisee in certain relations to the property, or under certain obligations in respect to it, than an actual contemplation of all the legal consequences resulting from such relations, or of the manner of enforcing such obligations. These, the law annexes as a part of its own system of rules; and judicial decisions furnishing the highest evidence of these rules, are, in such cases, much safer guides than in most cases arising upon the construction of wills.

But the adjudged eases must bo used with careful discrimination. The subject has been often considered from several different points of view, and with different objects ; and the most numerous class of cases in England have been decided upon grounds so peculiar to their system of law as to make them of little value elsewhere.

By the common law, the real estate of a deceased debtor could never be reached by his simple contract creditors. The courts very early felt the injustice of this rule, and to counteract its effect where there was a deficiency of personal assets, seized upon the slightest indication of intention in the will of the testator, to charge such debts upon the realty. In giving effect to this policy, it was at first thought to be necessary that the testator should, before devising the lands sought to be charged, have ^directed his debts to be first paid; or paid out of his estate; or some equivalent expression to evince an intention not to give any thing until his debts were paid. But even this restriction was very soon disregarded, and such introductory words held to be unnecessary; and in Graves v. Graves, 8 Linn. 55, Sir L. Shadwell lays down the doctrine broadly, that wherever the testator, in any part of the will, directs his'debts to be paid, it is, in effect, a direction that they shall be paid in the first instance; and, in case of a deficiency of personal property, charges them upon the realty. This decision has been followed in several later cases; and Mr. Jarman (2 Jarm. on Wills, 519) correctly states the established doctrine to be, that a general direction to pay debts in whatever part of the will contained, operates to throw them on the testator’s real estate.”. The better opinion is that it operates, not only against a devisee of the land, but also against the heir, and where the will is confined to a disposition of the personal estate. Sir R. P. Arden, in Shalcross v. Finden, 3 Ves. 739, said he was “very cleaidy of opinion, that whenever a testator says that his debts shall be paid, that will ride over every disposition, either against his heir at law or devisee.”

And, although the rule is subject to an established exception, where the testator has provided a specific fund for the payment of debts, yet this exception is confined within so narrow limits, that Lord Chancellor Lyndhurst, in Price v. North, 1 Turn. and Phill 85, where thetestator had expressly bequeathed the residue of his personal estate, subject to the payment of debts and legacies, held the real estate charged as an auxiliary fund; observing, that courts of equity had always been desirous of sustaining such charges for the benefit of creditors, and that the presumption in their favor was not to bo repelled by anything short of a clear and manifest intention to the contrary. Now, while this whole coui’se of decision is pi*ofessedly based upon the intention of the testator, as derived from the language of the will, it is ^impossible not to see that the anxiety of the courts “ to prevent men from sinning in their graves,” by leaving their debts unpaid, or, for a more substantial reason, to prevent injustice to living creditors, has largely contributed to produce it, and that in very many cases, they have compelled the testator to do an act of justice, which he had very little thought himself of doing. In this state, where all debts constitute a paramount lien upon all the property of the testator, the direct question could never arise; and, as none of the considerations which have influenced these decisions can have any application to the question, whether pecuniary legacies should be charged upon real property devised, it is evident that these decisions would furnish very unsafe guides. The distinction has been taken by the English courts; Lord Macclesfield (in Davis v. Gardner, 2 P. W. 187) observing, in relation to lands descended, that, “ as plain words are necessary to disinherit an heir, so words equally plain are requisite to charge the estate of an heir, which is a disinherison pro tanto;’' and in Shalcross v. Finden, supra, there is said to be “ no reason why a specific devise should not take effect as well as a pecuniary one.” The fact is, that, after a considerable struggle to escape the imputation of inconsistency, it is pretty well settled that a clearer manifestation of intention is requisite to charge the realty with pecuniary legacies than with debts; and the decided weight of authority there, as well as the undivided opinion in this country, is that where it is not expressly done, the implication must be plainly and clearly deducible, from the language of the will, to have that effect. As is said by Mr. Jar-man, “ this distinction appears to have been a natural consequence of the extreme length which the courts had gone, in holding debts to be charged by loose and equivocal expressions.” 2 Jarm. on Wills, 531. In principle, there is little room for doubt upon this subject.

There may be much force in ascribing to a testator the intention to pay his debts before he gives away any of his property — of being just before he is generous — but, as between the mere *objeets of his bounty, where he has given a pecuniary legacy, resting upon and payable from the personal fund, to one, and devised real estate to another, and the personal fund proves insufficient, there can be no reason for disappointing the devisee rather than the legatee, or for shifting the loss from him, upon whom the law has cast it, upon one that the law does not affect, until it is made unmistakably to appear that the testator so intended.' Without such clear manifestation of intention, there is great danger of interfering with his wishes; and to derive it by implication, the language of the will ought to be so explicit as to leave no doubt in the mind of the court that the testator actually contemplated such a contingency, and intended to provide against it.

In all such cases, the question is, whether the estate devised shall bear a burden that the testator has not imposed upon the devisee; and the controversy always relates to the existence or nonexistence of the obligation. To this class properly belongs the case of Lupton v. Lupton, 2 Johns. Ch. 614.

But none of these cases, either in form or substance, reach a case like the present, where the devisee is not only expressly charged with the payment of the legacies, but is also the recipient of all the testator’s real and personal property. Looking at the value of the property devised and the relationship of the legatees, there is much reason for supposing that the testator adopted the method provided in his will,'for the mere purpose of effecting an equal division af his estate. But we express no opinion upon the effect of this circumstance, or upon the fui’ther position taken, that the legatees, being unprovided children, are entitled to the same standing as creditors in the settlement of this question. In our opinion, the charge upon the property in this case, rests upon much more obvious considerations.

Numerous casos in England have settled the doctrine, that a bequest of legacies, followed by a gift of all the residue of the testator’s real and personal property, operates to charge the *entire property with the legacies. Hassell v. Hassell, 2 Lick. 526; Burch v. Biles, 4 Madd. 187; Cole v. Turner, 4 Russ. 376; Mirehouse v. Scaife, 2 Mil. and Craig, 695; 1 Ves. jr. 436; 2 Ib. 267.

The same doctrine has been often applied in the courts of our sister states. McLanihan v. Wyant, 1 Penn. 96 ; Bank v. Donaldson, 7 Watts & Serg. ; Kelsey v. Deyo, 3 Cow. 133; Adams v. Bracket, 5 Met. 280 ; Witman v. Norton, 6 Bin. 395; Downman v. Rust, 6 Rand. 587.

And it has been adopted, in its fullest extent, by the Supi’eme Court of the United States, in the recent case of Lewis v. Darling, 16 How. 1; and, indeed, carried so far as to .permit the legatee to subject the real estate in the first instance, without averring or proving a deficiency of personal assets. These cases certainly do not, in terms, apply to the present, but they fail in application, simply because cases like this do not need the aid of the principle they enforce. They presuppose a bequest of pecuniary legacies, •without any direction as to the person by whom, or the fund from which, they shall be paid, and a subsequent devise of the residue of real and personal properly; and they are founded upon the irresistible implication arising, that the testator intended to give to the devisee only what remained after satisfying previous gifts, and intended to charge both kinds of property, as he has blended both in the disposition. In this case, both kinds are blended, and the gift is expressed to be of the residue, after payment of debts, funeral expenses, and the support of the widow; but surely the inference, that the testator intended to give only what remained after the payment of legacies, is perfectly clear, when he has imposed the payment upon the devisee, and has placed in his hands the only fund from which they could be paid.

And this brings us to the class of cases which do, in terms and principle, apply to, and conclusively govern, this; and they are those in which it has been uniformly held, that where the real ^estate is devised to the person who is directed to pay the legacy, such legacy is an equitable charge upon the property so de-vised, unless there is something in the will itself to indicate a contrary intention on the part of the testator; and this, even, although the devisee is also the executor, or is the residuary legatee of the personal estate. Without entering upon a particular examination of the English cases, it is sufficient to say that the doctrine is sustained by Alcock v. Sparhawk, 2 Vern. 228; Aubrey v. Middleton, 2 Eq. Cas. Abr. 497; Clowdsley v. Pelham, 1 Vern. 411; Elliott v. Hancock, 2 Id. 143; Webb v. Webb, Barn. Ch. 86 ; Lypet v. Carter, 1 Ves. Sr. 499 ; Barker v. Duke of Devonshire, 3 Meriv. 310; — and is so fully settled, as to justify Mr. Jarman in affirming that this circumstance “ has always been held sufficient to charge the real estate.” 2 Jarm. on Wills, 533.

Among the cases in this country, that of Harris v. Fly, 7 Paige Ch. 421, is most expressive in point, and deserves special attention. The controversy arose between pecuniary legatees and a purchaser upon execution of the lands of the devisee. Nicholas Drum devised the lands to his son Aaron Drum, and also made him a residuary legatee. He then gave to each of his two daughters $1,000, to be his the in six annual

The chancellor held the legacies an equitable charge upon the real estate devised; and after a very satisfactory examination of the question, his conclusion is thus stated : “ Upon a very full exam ination of the authorities, I am satisfied, that where real estate is devised upon condition to pay the legacy, or with a direction to the devisee to pay the legacy, in respect to the estate so devised to him, and because that real estate has thus been devised, such real estate is in equity chargeable with the payment of the legacy, unless there is something in the will to rebut /the legal presumption; or from which it can be inferred that the testator intended to exempt the estate devised from that charge.” See *also, Tole v. Hardy, 6 Cow. 333; and 1 McLean, 194. I have said that the course of decision upon this subject, has been uniform. I ought perhaps to excej/t from the remark, the opinion expressed upon the constructions of the will of John Page, in the case of Wright v. Denn, 10 Wheat. 204. It was attempted in that case, to make the legacies a charge upon the land, for the purpose of enlarging a devise without words of limitation to an estate in fee simple. The settlement of the question had very little, if any influence upon the decision of the case ; and it seems to have been done without full consideration, and without any allusion to the marked distinction between legacies which are not, and those which are, required to be paid by the devisee. In no event, could that case be received, to weaken the force of the general current of authority by which the doctrine is supported, or the strong reasons upon which it is founded.

In this ease, Moore Simpson is directed to pay these legacies to the other children of the testator, in respect of the property devised to him, and because the testator has given him the propierty with which to pay them. No attempt is made to burden him with a doubtful liability. The liability is most positively and expressly imposed; and the only question is, how shall it he secured ? Must the legatees trust to his personal responsibility, or have they a lien upon the property devised ? The testator has not expressly said that they should have such lien, and it is difficult to find in the language of the will, any positive indication that he knew of, or intended to provide for it. But, in our opinion, this is not necessary. We are entirely satisfied that reason and justice, as well as the adjudged eases, mark a plain line of distinction, between cases where the property devised is sought to be reached by a legatee on failure of the personal fund, or in exoneration of that fund, and case» where the devisee is required to pay the legacy, as a part consideration for the property. In the one case, it must appear to have been the intention of the testator to créate the burden; and this intention *must be so clearly shown as to convince the court, that he actually foresaw and contemplated the charge, and intended to provide for it. To declare the charge established, without such clear conviction, would be to encounter the hazard of doing injustice to the devisee, and defeating the wishes of the testator.

In the other, it is enough that the devisee stands charged with the payment of the legacy on account of the devise; and the law then attaches a lien upon the estate devised, unless it appears, with equal distinctness, that the testator intended to deprive the legatee of this security. This can do no possible injustice to the devisee,, as he is required to pay no more than the testator has positively imposed, and he has voluntarily assumed; and it is very often necessary to prevent the grossest injustice to the legatees, and the greatest violence to the intention of the testator, by leaving them unpaid.

Indeed, it might not be difficult to place the lien upon much broader, although not more satisfactory, grounds. When Moore Simpson accepted the devise, and took possession of the estate, he became absolutely bound to pay these legacies, as a part of its purchase price. The testator intended he should have the property only upon paying so much of a consideration for it. If he had taken the title by deed, an undoubted equitable lien for these payments would have attached; and I am wholly unable to see how a doctrine resting upon the broad foundations of justice and conscience, and which will not permit one to keep the estate of another until the full consideration is paid (2 Story’s Eq., sec. 1219), can be made to depend upon the manner in which the title is derived. But whether .the lien in this case, might rest upon this doctrine or not, it derives a strong support from the analogy; and I think it very clear, that the actual knowledge and contemplation of such a lien by the testator, are no more important to its existence, than in the case of a vendor of real property.

2. The charge being established, there is very little difficulty *in disposing of the remaining question. It is certain, that Moore Simpson was invested with power to sell the property devised ; (8 Sim. 485; 4 Myl. & Cra. 264; 1 Kee. 559), and that no -distinction is to be taken between estates devised in trust, or those ■only charged with the payment of debts or legacies. 2 Sugd. on Vend. 38; 2 Story’s Eq., sec. 1127; 7 Ves. jr. 323. But, in either case, the general rule undoubtedly is, that wherever the trust or charge is of a defined and limited nature, the purhaser must him.self see, that the purchase money is applied to the proper discharge ■of the trust; but wherever the trust is of a general and unlimited nature, he need not see to it. 2 Story’s Eq., sec. 1129 ;• 2 Sugd. on Vend. 32; Murray v. Ballou, 1 Johns. Ch. 566.

In the application of this rule it has been generally held that where the trust is created, or the charge imposed for the payment of apportion, a mortgage, legacies, or scheduled debts, which are definitely ascertained, and to be paid over immediately to the person entitled; the purchaser, in the view of a court of equity, is bound to see that the money is actually applied to their discharge before the estate is relieved from the burden. But where the trust is created, or the charge exists, for the payment of debts generally, or for the payment of debts and legacies, when an account of the debts necessarily precedes the payment of the legacies; or where the money, is to be x’einvested or otherwise applied by the trustee to purposes which require time, deliberation, and discretion on his part; the purchaser is relieved from such responsibility, and the ■cestui que trusts must look alone to the trustee.

I am aware that several eminent judges have been of opinion that a purchaser is in no case bound to see to the application of the purchase money where the deed or will has designated the person to receive it; and that a power to sell necessarily includes the incidental power to give a valid discharge for the purchase money; and Mr. Powell has defended the same opinion, with %nuch ingenuity and force. 1 Pow. on Mort. 312. But the general course of decision has clearly been otherwise.

In this case the amount of the legacies, and the persons who re■ceive them, are distinctly defined in the will; and they were entitled to payment as soon as the time fixed in the will arrived. There is probably nothing to relieve it from the operation of the general principle; but it does not need the aid of that principle. There never has been any difference of opinion that, if the purchaser knew that the sale involved a breach of trust, or that the money was not to be applied in payment of the debts or legacies charged upon the he would be to hold the to the charge. 2 Sugd. on Vend. 39; Watkins v. Cheeck, 2 Sim. & Stu. 199; Wormley v. Wormley, 8 Wheat. 421; Gardner v. Gardner, 3 Mason, 178.

Now, at the time Miller made his purchase he was fully aware, not only in fact, but from the notice furnished by the Us pendens, that the legacies were not paid, and that no part of the money received from Clyde had been applied to that purpose. While he advanced his money to pay off Clyde, and denied the existence of any lien in favor of the legatees, he participated in the breach of trust, and after finding himself mistaken as to the'-lien, he stands upon no ground to insist that it has been discharged.

We are therefore of opinion that the property is still charged with the payment of these legacies, and shall decree accordingly.

Judge Thurman, having been of counsel, did not sit.  