
    William White and John Blair, Executors of Margaret White, vs. William Vaughan, Guardian of M. E. Harper.
    Testatrix by lier will gave pecuniary legacies to the amount of ten thousand and sixty dollars, and several specific bequests to her niece, M. E. I-I., and others, of negroes and other property including her Indian leased land, and then directs, viz : “ I further will and devise that my negro man Will, have the privilege of choosing his master, and be appraised to him by two good men, and that all my other property be sold and the proceeds be applied towards the legacies mentioned within, and the remaining sum of the legacies be paid by M. E. H.” Will and the]other property directed to be sold, were sold for eight hundred and ninety-four dollars; the debts amounted to three hundred and seventy-eight dollars. Held, that the amount of the price of Will and the other property sold, was a fund set apart for the payment of the pecuniary legacies, and was exempted from the payment of the debts; that M. E. H. should make up the deficiency in that sum, to the pecuniary legatees ; and that she and the other specific legatees should contribute ratably to the payment of the debts. [*334]
    The testatrix’s estate at her death consisted entirely of personalty; for the land mentioned in her will, was (as it appeared by the statement and admission of counsel,) Indian land, which is held on long leases, and is therefore a chattel real, and assets in the hands of an executor or administrator for the payment of debts. She by her will made the following bequests, viz: — To different persons and in different amounts, the sum of $1060; to William White, a negro man Anthony; to the defendant’s ward, M. E Harper, two feather beds, one bureau, a sorrel horse, a negro woman and her five children ; and to John G-. White, her (Indian) land. In the ninth clause of her will, she makes the following provision : “I further will and devise that my negro man, Will, have the privilege of choosirfg his master, and that he be appraised by two good men, which shall be the price for which he is io be sold; also that all my other property be sold, and the proceeds to be applied towards the legacies mentioned within, and the remaining sum of the legacies be paid by Eliza Harper,” &c. The negro, Will, and the other property, sold for $894— the debts of the testatrix amount to $378. The only question in the case is whether the debts shall be paid out of the $894, and the balance *3301 aPPbed to the legacies, leaving the deficiency ($544) “ J to be made up by the defendant’s ward; or whether the $894 shall be applied to the legacies, and the defendant’s ward shall pay the balance, $166, and in common with the other legatees of specific property, contribute ratably and in proportion to the debts.
    The case was heard at Lancaster, July, 1834.
    De Saussxire, Chancellor. The question made and argued was, out of what fund this deficiency was to be raised. Eor the plaintiff, it was insisted that the debts of $378 should be paid out of the sum of $894 produced by the sale of Will and the other property directed to be sold, which would then leave the balance of $516 to be applied to the payment of the pecuniary legacies amounting to $1060, which would leave the balance of $544 of the pecuniary legacies, to be paid out of the estate bequeathed to Eliza Harper, subject by the will to the payment of the pecuniary legacies.
    For the defendants it was contended, that the debts ($378) should be paid ratably out of the legacies, in proportion to their respective amounts, the pecuniary legacies to be considered specific legacies under this will. The original fund to pay debts is the personal property not specifically bequeathed. That is the case with the price of the slave, Will, ($436,) which is more than sufficient to pay the debts. The sale of the other property applied to pay the legacies will leave a balance due on the pecuniary legacies, which is charged by the will on the estate devised to Miss Eliza Harper. It would be a singular construction of the will to make the deficiency payable out of the pecuniary legacies themselves, though charged expressly on the particular estate given to Miss Harper.
    It is ordered and decreed that the defendant do pay to the plaintiffs the amount of the deficiency of the pecuniary legacies out of the estate bequeathed to Miss Eliza Harper. Costs to be paid out of the estate.
    From this decree the defendants appeal on the following grounds :—
    1. That by the will the whole estate is disposed of without making provision for the debts, and therefore these are to be paid ratably out of each legacy — the pecuniary legacies to be considered specific, as they are *3311 to Pa^ out sPeeific Pr0Pei'ty mentioned* and set apart in J the will; the balance only between the amount of this specific property and the legacies to be paid by defendant’s ward.
    
      2. That at all events, Eliza Harpers’s legacy is only charged with the difference between the sale of Will and the other property which amounts to $894, and $1060, the amount of pecuniary legacies, being $166, and the Chancellor decrees $544; which includes not only the balance of pecuniary legacies, but the debts also.
    
      T. Williams, jr., for the appellant.
    The question is out of what particular funds shall the debts be paid; it is not whether the personal estate shall be exempted and the lands charged — that question is entirely different from the present. It is, whether a particular portion of the personal estate is not exempted under this will; and that as the balance of personal property is disposed of by the will, and no provision made for the payment of debts, whether the legacies may be abated proportionally for the payment of debts. Nor is it a question whether the personalty is not first liable for the debts. If the defendant were seeking to exempt the personal property and to create a charge on real estate for the payment of the debts, nothing short of an express declaration in the will would be sufficient for this purpose. This question would turn on the intent to change the nature of real estate to personal, and thus to follow the fate of personal; and this “intent” must be plainly and expressly set forth. This is admitted to be the law ; but this rule does not touch the case before the Court. Here the whole estate is personal; for the lands are within the Indian boundary, and are declared to be personal property, and made assets by law in the hands of executors and administrators to pay the debts. The question here is, whether a particular part of this personal estate, to wit: the negro man, Will, and the other property ordered to be sold, is not, by the clear intent of the testatrix, drawn from the express words of the will, exempted from the payment of debts. I conceive such is the case. What are the facts ? The testator bequeaths to sundry persons pecnniai'y legacies to the amount of $1060. Suppose the testatrix had said, “I order my executors to sell my lands, (describing them,) in order to raise the money for these legatees.” I ask if this would not be a charge on these lands for the purpose of raising this particular fund ? Would not the executor have the power, 1st to sell; 2d to make the titles ; and 3d to apply the money to the payment of these pecuniary *legaeies, and would this not bar the heir at r*qoo law claiming these lands ? In the case of Dunlap v. Dunlap, L which is found in 4 Eq. Rep. 323, the Court ordered this, even under a will not executed to convey the lands, and ordered debts to be paid, thus defeating the heirs at law ; because a testator had by a will that passed personal property, otherwise disposed of the personalty. If this would create a charge on lands for the payment of legacies, it would also do it for the payment of debts.
    Now, here this charge is expressly set forth on Will and all the other property not bequeathed, to pay these legacies.
    Suppose no charge had been laid on Miss Harper’s legacy ? It is a specific legacy. According to the rule contended for, if the debts had been $894 — the amount for which Will and the other property was sold, the pecuniary legatees would get nothing, notwithstanding a specific property, and enough too, had been set apart by the testatrix to pay the legacies.
    
      Let us put a case. The testatrix wills to her niece $1000; and says in her will, “ I hold a bond on A. B. for $1000 : I direct my executor to collect that money, and to pay off this legacy with interest from the day of my death.” And then she wills her negroes by name, and her lands by description, and all her other property, to her nephew. The executor collects the $1000 and the interest — but the testatrix owes $1000 and interest. How is this debt to be paid ? If the bond money is taken, the pecuniary legatee loses her legacy ; because the balance of the estate is willed in specific legacies. If the $1000 is considered specific, which it ought to be, and the bond set apart to the payment, this fund then is liable to the legacy ; as such it becomes specific, and is also exempt from payment of debts: and thus each legacy would ioe abated proportionably and the debtor paid. — 2 Roberts on Wills, 114; 2 P. W. 23 ; 1 Robt. on Wills, 16, note; 4 Eq. Rep. 323.
    My view of this will is this, that as the negro man, Will, and the other property ordered to be sold, amounting to $894, were set apart by the testatrix to j>ay the pecuniary legacies, this makes the special charge on this property, and makes the pecuniary legacies specific, the same as if the negro and the property had been willed, instead of their value. — See 1 Roberts on Wills, 16; note. — Where the profits of a term are willed, it is as specific as to will the term itself. If so, the negro and other property willed is exempt from the payment of debts as effectually as any other specific legacy.
    .¡.ooo-| *If the negro had died before sale, and the property ordered to J be sold, being personal, had also perished, would Miss Harper have had to pay the whole of the pecuniary legacies ? I think not; because the testatrix says, “the balance of the pecuniary legacies,” meaning clearly the balance between the price of Will and the other property, and the amount of the pecuniary legacies.
    Suppose the will had said, “ I appraise Will and the other property at $894, this sum to be divided between my niece and nephews, who shall get $1060, and the balance to be paid them by Miss Harper? Would she be liable for more than the difference between $894 and $1060 ? Certainly not. Now, there can be no difference between ordering the property to be sold and to be appraised. The object of the testatrix was to give her nieces and nephews $1060. To raise this fund she says, sell a negro and other property for what they will bring, and let Miss Harper make up the balance. All this is common sense. If the debts are not provided for, each legatee must abate his legacy proportionably. But the Chancellor, by his decree, orders the negro and other property sold, to pay the debts, and then orders Miss Harper to pay up the balance, which is to make her pay the debts. The will says, she shall pay the balance, — meaning between what the negro and other property sold for, and what- the pecuniary legacies amounted to.
    
      M’ Willie, contra.
    The construction of the will of the testatrix contended for by the defendant is inadmissible, because the pecuniary legacies, in the event of other property not being sufficient to pay them, are directed to be paid out of the legacy to Miss Harper. In other words, the legacy to Miss Harper is charged with the pecuniary legacies ; and the requisition of the will is, that it protect and pay them. The construction contended for defeats this provision, as it is asked to reduce them for the purpose of paying debts. This ground perhaps is not necessary, as the negro man, Will, is specifically bequeathed, and was sold for a sum more than sufficient to pay the debts, and certainly constitutes a fund to be so applied before the pecuniary legacies. — See 1 Eq. Rep. 512-13.
   O’NealIi, J.

I think the view taken of this subject, by the defendant’s counsel, is unanswerable. It is not necessary that I should repeat arguments which he has stated clearly and with great force.

*1 have no doubt where, as in this case, the testatrix sets apart r^ggq property and directs pecuniary legacies to be paid out of its pro- L eeeds, that they are entitled to have it so applied. If the other parts of the estate, whether specifically devised or not, be sufficient to pay the debts, the pecuniary legacies directed to be paid out of a particular fund could not be called on to contribute for their payment; for the testatrix has indicated a clear intention that that fund should be applied to a specific purpose. A. contribution by the legatees entitled to receive it, would throw upon the legatee directed to make up any deficiency which might be between it and the amount of the legacies, an undue proportion of the debts. Indeed, if that fund was made first applicable to the debts, and only the balance left was to go to the extinguishment of the pecuniary legacies, the result, in making up the deficiency to them, according to the words of the will, would be to charge the defendant’s ward with- the whole debts of the estate Such a result was never contemplated by the testatrix. Eor, after directing the proceeds of Will and the other property to be applied to pay the pecuniary legacies, she says, “the remaining sum of the legacies to be paid by Eliza Harper.” These words are plain and unambiguous, and their meaning is just as plain as if the testatrix had known how much her personal estate directed to be sold, would produce, and had said, inasmuch as the legacies I have directed to be paid out of this fund will exceed it $166, I direct that sum to be paid by Eliza Harper. This direction, that Eliza Harper should pay the difference between the proceeds of the sale and the amount of the legacies, not only shows that this was all the burthen she intended to cast on the defendant’s ward on their account, but also that those legacies should be paid in full. The consequence of this is, to have the debts to be paid out of the property specifically devised.

It is ordered and decreed that the Chancellor’s decree be reformed in the following particulars: — 1. That the defendant, as guardian of M. E. Harper, do pay to the plaintiffs, for the difference between the proceeds of the sale of the negro and the other property, and the pecuniary legacies, one hundred and sixty-six dollars with interest from one year after the testatrix’s death : 2. That he do contribute and pay toward the debts of the deceased *such sum as may be ascertained by stating a pro- r*ggg portion — as the whole value of the property bequeathed to M. E. L Harper, (after deducting therefrom the said sum of $166,) of the negro, Anthony, bequeathed to William White, and of the Indian land bequeathed to John Gr. White, is to the whole amount of the debts of the deceased, so is the value of the property bequeathed to M. E Harper, (after deducting $166 as aforesaid,) to the amount to be paid by her on account of the debts of the testatrix. And it is referred to the Commissioner to ascertain and report the amount of the contributions. In all other respects the decree is affirmed.

Johnson, J., and Harper, J., concurred.  