
    [Chambersburg,
    October, 24, 1825.]
    The Commonwealth, for the use of BEELMAN and wife against SHELBY and others. SHELBY and others against The Commonwealth, for the use of BEELMAN and wife.
    
      IN ERROR,
    
    Testator, after specific bequests of personal property to his widow, devised cer, tain portions of his real estate to his six sons, and gave money legacies to his two daughters, charging his real and personal estate blended with the payment of debts and legacies. One of the sons died in the lifetime of the father, who died intestate, as to the portion devised to that son; and also as to a tract of land purchased after the execution of the will, a large balance of the purchase money for winch tract, remained unpaid at the time of his death. Held, that the assets were to be administered in the following manner, viz i
    1. The specific bequest to the widow to remain untouched.
    2. The personal estate to be applied to the payment of legacies, and all the debts of the testator.
    3. To the balance remaining, after exhausting the personal estate, the descended lands are to be applied. If these funds should not be sufficient, then
    4. The lands devised are to be applied.
    These writs of error were to the Court of Common Pleas of Cumberland county, that court having made a decision with which both parties were dissatisfied.
    The suit was ap amicable scire facias, on a recognizance in the Orphans’ Court of Cumberland county, in which the commonwealth, for the use of John Beelman, and Barbara his wife, were plaintiffs, and Andrew Shelby, John Barnhart, and Nicholas Kreutzer, defendants: and the following case was stated in nature of a special verdict,
    
      Andrew Sheely, the father of the above named Barbara Beelman, made his last will and testament duly executed, bearing date the 24th of August, 1811; by which, after the usual preamble, he disposed of his estate in the following manner:
    “ I give and devise unto my beloved wife Barbara Sheely, two cows, she to have the choice out of all my cattle; and also to have my bed and bedstead, with all belonging to it, and as much of my house or furniture as she thinks proper ; and it is further my will, that my herein after named executors shall build a sufficient house, near the pump, for my wife Barbara to live in, and to have liberty to pass and repass during her natural life ; and it is further my will, that my executors shall give to my wife Barbara thirty bushels of wheat, and two fat hogs, each of them to weigh one hundred and fifty pounds, yearly, and every year as long as she may live, to be paid out of my estate by my executors. It is my will, that my wife Barbara shall have as many fowls and ducks as she can make use of yearly, and every year, and as many apples as she wants out of my orchard, and as much firewood, ready cut at her door, as she can use yearly, and every year, to be paid by my executors cut of my estate: it is my will, that my wife’s two cows shall be kept, summer and winter, on the premises in good order, by my sons John Sheely, and Michael Sheely ; it is further my will, that my wife Barbara shall have one third part of the garden, and to have her choice. It is my will, ,and I give and devise unto my two sons John Sheely, and Michael Sheely, and their heirs and assigns, that plantation whereon I now live, containing about one hundred and thirty-two acres, together with the buildings and improvements. I give and devise unto my two sons, Adam Sheely and Andrew Sheely, and to their heirs and assigns, all that tract of land, part of silver springs, containing one hundred and fifty-two acres, together with the buildings and improvements. I give and devise unto my two sons, Christian Sheely and Frederick Sheely, and their heirs and assigns, all that tract of land, which I purchased from a certain Willcoack, containing one hundred and fifty-seven acres, together with the buildings and improvements. It is further my will, that my land, which I purchased in Virginia, shall be sold by my executors, and the money equally divided amongst my six sons. It is further my will, that my two sons, John Sheely and Michael Sheely, and their heirs and assigns, shall have my twenty acres of mountain land. It is further my will, that my six sons shall agree, and fix on a price on each, if they can agree, if not the six sons shall nominate three or five disinterested freeholders, who shall appraise theSsame; which appraisement shall be final. It is further my will that my daughter Barbara, who is intermarried to John Beelman, shall have the sum of six hundred pounds, lawful money, out of all my estate, real and personal, to be paid by my executors if not paid by me in my lifetime; if paid by my executors, then two hundred pounds one year after my decease, and two hundred pounds yearly, till the sum of six hundred pounds be fully paid. It is my will, and I give and devise unto my daughter Mary, intermarried to Frederick Smith, the sum of five pounds, out of all my estate, real and' personal, and my daughter Mary shall have the issues and profits out of that tract of land whereon she now lives during her natural life. I give and devise to my grand children, of Frederick Smith, to their heirs and assigns, all that tract of land which I purchased from Adam Ulrick, containing about seventeen acres; which they shall have and enjoy after the decease of my daughter Mary. It is my will, that my six sons shall have share and share alike, of the appraisement of my land. It is also my will, that my executors shall, as soon as convenient after my decease, sell my personal estate by public sale, and the money of such sale shall be equally divided amongst my six sons, share and and share alike; except what my wife Barbara shall keep, that shall be sold after her decease by my executors, and the money equally to be divided amongst my eight children, share and share alike. It is also my will, that my executors shall pay all my just debts, and funeral charges, as soon as convenient after my decease. Lastly, I nominate and appoint my two sons, John Sheely and Jlndrew Sheely, executors of this my last will and testament, and no other.”
    The said Jlndrew Sheely, the testator, died on the 20th day of May, 1819, without having republished or altered his said last will and testament. Frederick Sheely, one of the sons of the said testator, and also one of the devisees named in said will, died intestate and without issue, in the lifetime of the said testator. After the date, and execution of said will, to wit, on the 7th of February, 1818, the said Jlndrew Sheely, the testator, entered into a contract with a certain Nicholas Kreutzer, iox the purchase of the tract mentionedanddescribedin the said contract,and the said Nicholas Kreutzer, by a deed dated the 6th of March, 1819, for the consideration therein mentioned, conveyed the same tract of land and premises to the said testator, in fee simple. Jlndrew Sheely, the testator, died intestate, as to the lands and tenements devised by his said will to the aforesaid Frederick Sheely, who died in the testators lifetime, as aforesaid; and, also, as to the lands and tenements purchased from the said Nicholas Kreutzer; and left a widow named Barbara Sheely, and issue seven children, of whom the aforesaid Barbara Beelman, wife of the said John Beelman, is one.
    The said Barbara Sheely, widow of the said Jlndrew Sheely-, deceased,'died on the 1st of Jlpril, 1820. In pursuance of a writ of partition and valuation, issued out of the Court of Common Pleas, of the said county of Cumberland, the tract of land and premises, purchased by the said testator from Nicholas- Kreutzer, containing one hundred and ten acres and nine perches, was made one share or purpart, and was valued and appraised by the inquest at the sum of six thousand four hundred and seventy dollars and thirty-one cents, after deducting costs; and the tract of land and premises which had been devised to the said Frederick Sheely, as aforesaid, containing seventy-eight acres and one hundred and four perches, was made one other share or purpart, and was valued or appraised by the said inquest at the sum of two thousand seven hundred and ten dollars and thirty-one cents, after deducting costs; which partition and valuation was confirmed by the said court. And the tract of land purchased by the said testator, from the said Nicholas Kreutzer, as aforesaid, upon the application of Jlndrew Sheely, one of the sons of the said Jlndrew Sheely, deceased, and one of the defendants in this action, was awarded and confirmed to him by the said court. And the said Jlndrew Sheely, together with John Barnhart, and Nicholas Kreutzer, the other defendants, entered into and acknowledged the recognizance upon 'which this suit was brought, to secure the shares and purparts of the widow and other heirs of the said Andrew. Sheely, in the appraised value of the same. That the said Andrew Sheely, the testator, was at the time of his death indebted to Nicholas Kreutzer in the following sums of money, to wit:
    Balance of hand money, due the 1st oí April, 1818, the sum of one thousand seven hundred and seventy-nine dollars ; due the 1st of April, 1819, the sum of one thousand one hundred dollars; due the 1st of April, 1820, one thousand dollars ; due the 1st of April, 1821, one thousand dollars; due the 1st of April, 1822, one thousand dollars; due the 1st of April, 1823, one thousand dollars ; due the 1st of April, 1824, one thousand dollars; which said sums of money were secured by bonds executed by the said Andrew Sheely, the testator, in his lifetime, and compose the balance of the purchase money for the tract of land, purchased from the said Nicholas Kreutzer, and mentioned in the deed aforesaid. And the said several sums of money still remain unpaid. That the said Andrew Sheely, the testator, at the time of his death, was indebted to Michael Sheely, in the sum of six hundred and ninety-nine dollars and fifty cents, money borrowed in his lifetime, for, and applied in payment to the said Nicholas Kreutzer, in part of the purchase money for the tract of land purchased from him as aforesaid. And the said testator, in his lifetime and at the time of his death, was indebted to his son Andrew Sheely, one of the defendants, in the sum of three hundred and seventy dollars, borrowed for, and applied in part payment of the same tract of land last aforesaid. And also to Adam, Sheely, the further sum of one thousand five hundred dollars, the price of building and erecting a barn, and making other improvements, by him, the said Andrew Sheely, the defendant, to and for the said testator in his lifetime, on the same tract of land last mentioned. That John Sheely, Michael Sheely, Adam Sheely, Andrew Sheely, and Christian Sheely, the five surviving sons and devisees named in the will of the testator, took possession of the estate devised to them respectively, upon the death of the said testator, and still continue to enjoy and possess the same. That Andrew Sheely one of the defendants, and John ^Sheely one of the executors of the will of the said testator named, took upon them the burthen of the execution of the said will, and collected the personal ass'efs of said testator, which still remain unaccounted for by them. That the said testator left personal assets, to the value of three thousand three hundred and ninety-four dollars and sixty-two cents.
    That the personal assets which were of the said testator, and the value of the real estate devised by the said Andrew Sheely, the testator, to his six sons, the devisees in the said will named, greatly exceed the amount of monied legacies bequeathed in the said will, the debts due by the said testator at the time of his death, and the funeral expenses, and the expenses of the administration of the estate by the executors of said will.
    1st. If the court shall be of opinion, that the price for which the land purchased by said testator from Nicholas Kreutzer, as aforesaid, and which is described in the proceedings in the Orphans’ Court, and valued by the inquest, as aforesaid, is by law first to be applied to the extinguishment and payment of the aforesaid debts, due and payable to the said Nicholas Kreutzer, Michael Sheety, Andrew Sheety, and Jldam Sheety, then judgment to be entered for the defendants.
    2d. If the court shall be of opinion that the price for which the said tract of land purchased by the said testator, from the said Nicholas Kreutzer, and the price of the tract of land of seventy-eight acres and one hundred and four perches, mentioned in the proceedings of the Orphans’ Court, and confirmed to the said Michael Sheety, as aforesaid, are by law first to be applied to the extinguishment and payment of the aforesaid debt, then judgment to be entered for the plaintiff. The sum due, to be ascertained by the report of a referee or auditor, to be nominated and appointed by the court for that purpose.
    3d. If they shall be of opinion, that the personal assets which were of said testator, or any part thereof, are by law liable, firsttobe appropriated and applied in payment of the aforesaid debts, and that the balance of said debts, after such personal assets are exhausted, would only be legally chargeable on the price, for which the aforesaid two tracts of land were appraised, then judgment to be entered for the plaintiffs. And the sum due to be ascertained by the report of three referees, to be named and appointed by the court for that purpose.
    4th. If the court shall be of opinion that the personal assets, which were of said testator, or any part thereof are by law first to be applied towards the payment of the aforesaid debts, and the balance of the said debts,. after such personal assets shall be exhausted, are equally chargeable on all the real estate of which the testator died seized, the judgment to be entered for the plaintiffs. The sum due to be ascertained by the report of three referees, to be appointed by the court for that purpose.
    5th. But if the court shall be of opinion that by law the personal assets, which were of said testator, or any part thereof, and the real estate devised by the said testator to his six sons, in and by said will, are first liable, and to be applied, in the payment of the aforesaid debts, then judgment generally to be entered for the plaintiffs. The opinion of the court to be filed; and it is further agreed that a writ of error may be sued out by either party, without either oath or bail.
    The following opinion was given by the court below.
    This case is submitted without argument, and I have had-but a few moments to glance over the numerous facts connected with it. From an inspection of the will, it appears to me that the testator intended an equality in the distribution of his estate among his sons, and although the circumstances of his estate afterwards changed, still that equality may be preserved in perfect conformity to the principles of law. See the. second, third, and sixth sections of the act, for the more easy recovery of legacies, passed the 21st of March, 1772. Purd. Dig. 419.
    All the lands of which the testator was seized at the time of his death, whether devised or not, were chatties for the payment of his debts after his decease.
    The debts due to Nicholas Kreutzer, were a lien upon all the lands of the testator, and not specially against those which had had been purchased from him after the date of the will; and the same remark applies to all the other debts. It is a general principle that personal property of a decedent, must first be applied to the payment of debts, unless otherwise directed by the testator in his will.
    These positions, it seems to me, necessarily lead to a denial of all the points exhibited in the special verdict for the opinion of the court, except the fourth, and is an affirmation of it. The court accordingly direct judgment to be entered for the plaintiff, on the principles contained in the fourth position in the case.
    
      Carol hers, for Beelman and wife.
    
      Bamsey and Mahon, contra.
   The opinion of the court was delivered by

Duncan, J.

This action, in substance, was in the nature of a bill in equity to administer the assets of Andrew Sheely, the testator, under the facts stated, to which, for the sake of brevity, I refer.

Both parties were dissatisfied with the decision, and both have taken out writs of error; Beelman and his wife contending, that the personal estate and the devised lands constitute the fund for the payment of legacies-and of all other debts, while Andrew Sheely, John Sheely, and Nicholas Kreutzer contend, that the descended land is the first fund, and that neither the personal estate, nor the devised land can be resorted to until that is exhausted. The specific legacy to the widow, cannot be touched until the whole estate devised and descended, has been applied to the discharge of the debts. The vendees, who hold the testator’s bond for the purchase money of land conveyed to him after the execution of his will, hold no specific lien on this land; though in England it would seem that they would. It is a rule in marshalling of assets, where the court have any foundation to go upon, to mar-shall the assets so as that all parties may have satisfaction; for nemo ex allerius detrimento fieri debet locupletio. Francis’s Max. 3; and no man’s right ever should be allowed to he exercised in a manner prejudicial to the rights of others. Hence it is, that if there be no assets to answer the intention of the testator or his legacies, the heir shall have no assistance of the personal estate; for this would be to overthrow the testator’s express intention by an implied one, that the land was to descend free to the heir, and to take away from a man the disposal of his own property. 2 Fonb. Eq. 294. 2 Ch. Cas. 4, 5.

It is further to be recollected, that every devise of lands is in its nature specific, and that the favour which is to be extended to the heir, is not to defeat the disposition of the testator. The personal assets, unless otherwise provided for by the will, is the primary fund. In Pennsylvania, where the testator has blended his real and personal estate, the rveal estate is subjected to the bur-then of the legacies on a deficiency of personal estate. Tucker v. Hassenclever, 3 Yeates, 294 2 Binn. Appen. 525. Witmer v. Norton, 6 Binn. 395. And we may further state, that where there is a general bequest of a legacy, and there is a deficiency of personal assets to pay debts and legacies, the balance of the legacy is payable out of the real estate, unless there is a reservation in the bequest, or some manifest intention to confine the charge either to one estate or the other. Nichols v. Postelthwaite, 2 Dall. 131.

Applying these principles to the case under consideration, then, this is the case of lands devised, subject not by the provisions of the will, but in this state subject by the law to a general charge of debts, as much as if made so by the provisions of the testator. The testator had not the present state of things iq contemplation. He had no intention about any real estate he might afterwards acquire, or the éxtinction or lapse of any devise by the death of the devisee in his lifetime. So far as his views then extended, it was his intention that his sons should take the real and personal estate, after payment of his debts and the legacies to his daughters. He had then six sons, and he devises specific portions of land to each of them. He directs his executors to sell his personal estate, and pay his debts, and divide the money between his six sons, share and share alike. If the construction be, that the estates devised to his sons shall be applied to the payment of the purchase money of the descended lands, the design and plan of the testator is entirely frustrated: if these debts are to be paid out of this land, either in whole or in part, the specific devisees of the land are either totally or partially deprived of that which their father intended for them, and the daughters get what their father never intended they should get: every object of the testator would be defeated. This would be contrary to first principles, and to every rule of a court of equity in marshalling assets, whose object is to satisfy every claimant on the assets of the deceased, so far as that can be effected by any arrangement consistent with the claims of creditors and the intention of the testator.

A consideration of all the cases, with their distinctions, some of which are nice enough, will produce a conviction, that descended estates ax-e generally seized hold of, as the first fund, where none is specifically charged, and where the personal estate is exempt or exhausted. It seems to be the rule, with respect to the priority of application of real assets, 1. That the real estate expressly devised for payment of debts shall be applied. 2. The real estate descended. 3. The real .estate specifically devised, subject to a general charge of debts. In the notes of Cox to Howell v. Price, 1 P. Wms. 294, (1st Amer. Ed.) the cases are collected. It is well settled, that a mere charge upon a devised estate will not protect a descended estate from being first applied: this is reasonable and in few cases can produce injustice, or even inconvenience; for every devise of real estate, whether in general terms or not, is in its nature specific, though the descended estate not being devised to any one, words must be found in the will, where the personal estate is either exhausted or exempted, exonerating it by creating some other specific fund; and the case is stronger where the testator acquired the lands since the devise, than where having them he omits to dispose of them by his will; for in the latter ease there is the absence of all intention that the heir shall take them free from the debts: and, in that case, nothing but devising the real estate expressly for the payment of debts will subject them to the payment, where there is an estate descended sufficient to pay them. Make the most of the case of Beelman and his wife claiming as one of the heirs, it is a case whei’e the real and personal estate blended was charged with the payment of debts and legacies, where the pei’sonal estate is not sufficient to pay them, where there is real estate specifically devised, not expressly ehax'ged with the payment of debts, and estate descended.

The court are of opinion, that the following is the coux’se in which the assets are to be administered:

1.. That the specific bequest to the widow is to be made of the personal estate.

2. That the personal estate is then to be applied to the payment of legacies and all the debts of the testator.

3. That to the balance remaining, after the application of the personal estate, the lands descended are to be first applied; and, if they should prove deficient, then—

4. The lands devised; and x'everse the judgment of the Court of Common Pleas, and direct judgment to be entered accordingly.

In this mode of administei’ing the assets, justice will be done to all, and the intention of the testator observed. In any other mode the whole object of the testator would be fi’ustrated. The principle of casting the payment of the debts equally on the devised and descended lauds, is so contrary to all justice, that it would be' incumbent on the party maintaining.it to px-oduce some authority or rule in support of his position: he has done neither, — the settled doctrine is quite different, and such as I have stated.

Judgment reversed.  