
    Moses Humes et ux. versus Mark Wood, Executor
    A testator gave a specific and several general legacies, and devised his farm, being all his real estate, to several of his children, and afterwards by a general clause made the same children residuary legatees and devisees ; his personal property was not sufficient to pay his debts and the specific legacy. Held, that the general legatees must lose their legacies, and that the real estate, being specifically devised, could not be sold to pay them.
    This was an action of debt to recover a legacy of 40 dollars given to the plaintiff, Miranda Humes, by the will of her father, Thaddeus Thayer, of which the defendant is executor.
    The case was submitted to the Court upon an agreed state ment of facts.
    The whole personal estate of the testator, exclusive of cer tain articles specifically bequeathed, was not sufficient to pay his debts ; and a balance of more than 200 dollars was due to the executor upon the settlement of his account, a part of the balance being for debts paid, and a part for the charges of administration. The real estate of the testator was valued at 5100 dollars, and in his will was devised as follows. “ Item third. I give and devise my homestead, or the farm whereon I now live, the same being all the real estate which I am now seised and possessed of, consisting,” &c. to his four sons, Silvanus, Chapin, Albert, and Joseph, and his four daughters Elzada, Almira, Milley, and Zilpha. After giving one specific and several general legacies, and among others that to the plaintiff, Miranda Humes, the residuary clause follows : — “I also give, bequeath, and devise, in common and undivided and in equal proportions, all my estate, real and personal, not herein before bequeathed and devised,” to the four sons and four daughters named above.
    
      Oct. Si.
    
    
      B. Adams, for the plaintiffs,
    contended that the executor was bound to sell the real estate to pay the legacies. It was no doubt the intention of the testator that the legatees should have a portion of his estate. The devisees of the real estate can only claim as residuary devisees, and not under the specific devise, for the last provision in the will is to prevail over the previous one. He cited Dawes v. Swan, 4 Mass. R. 208; Parsons v. Winslow, 6 Mass. R. 169; St. 1783, c. 24, § 17, 18. The assets should be marshalled, so as to have the debts paid out of the real estate, leaving the personal estate free to pay the legacies. Toller, 423.
    
      Merrick, contra,
    
    cited Toller, 301, 302, 339; Bac. Abr. Legacies &c. G, H; Hern v. Merick, 2 Salk. 416; Kightley v. Kightley, 2 Ves. jun. 328; Keeling v. Brown, 5 Ves. 359; Lupton v. Lupton, 2 Johns. Ch. R. 614.
    
      Oct. 6th.
    
   Parker C. J.

delivered the opinion of the Court. The action cannot be maintained against the executor, because he has no funds out of which to pay the legacy. The personal estate is all consumed by debts and expenses of administration, except the stock, farming utensils, &c. which are specifically devised. The real estate is not charged with the payment of legacies, and besides is also specifically devised. It does not come into the hands of the executor, and he has no authority to sell it. That a devise of a farm or any definite parcel of real estate may be specific, the authorities cited sufficiently show.

It was supposed by the counsel for the plaintiffs, that there being a general residuary devise to those to whom the real estate is given in a preceding clause, this operates as a revocation of the particular devise. But it cannot so operate contrary to the clear intention of the testator, which was, in this residuary clause, to give what might by possibility not have been before disposed of.

Plaintiffs nonsuit.  