
    *Trent v. Trent’s Executrix and Others.
    February, 1821.
    Wills — Direction ior “Payment oí Just Debts”  — Effect. —Directing- by will “the payment of all lust debts,” charges the whole estate: -which charge is not released, by a subsequent selection of particular parts to be sola for that purpose.
    Same — Charging Estate with Particular Debts. Charging the whole estate with particular debts, lets in every creditor on the whole estate. Quuere.
    Same — Annuity—Chargeable on What. — An annuity, is a legacy charged on the whole estate, not specifically devised.
    Same — Realty Charged with Debts — Who Entitled to. —The heir is entitled to the real estate, though charged with debts, until convicted of mismanagement, or misapplication of profits.
    Edward W. Trent of the town of Manchester, having a wife, a brother, Dr. J. Trent, and a sister, Mrs. Leiper, but no children, and being the proprietor of Trent’s Bridge over James river, a stone quarry and lands adjoining, and sundry lots in Richmond and Manchester, and other property real and personal, made his will on the 29th of March 1813, which contains the following clauses: “I direct the payment of all my just debts, and wish the whole of my Richmond property sold for that purpose, and my land in Dinwiddie, together with as many of the lots in the town of Manchester, not including in the number, these devised to my wife as will be sufficient; I wish my executrix and her friends hereafter named, will sign such conveyance of all my estate as the several banks many require to secure them, not doubting but that they will give such indulgence as to effect a sale without sacrificing the property. I shall rely much on the liberality of the Bank of Virginia.” And after directing that no part of his property should be sold to Wardlaw & Co. within twenty years, for the purpose of enabling them to conduct water through his land, except *under certain circumstances, he devises to his wife, his land on the Manchester side of the bridge, together with his household and kitchen furniture, his negroes, and fifteen hundred dollars a year, the money for life, the residue as her absolute property, she to have at all times the use of the bridge, in selling rock and passing toll free. He, then gives a legacy of six hundred dollars to his adopted daughter N. E. T. Callaway; the residue of the will, is in the following words: “I am under an obligation to make provision for two unfortunate females that owe their existence to me, of which X recommend them to my wife and my affectionate brother to do as they think best, they have power under this will to do what they think best. If N. E. T. Callaway shall die before my wife, or after the death of my wife and not married, or married and without issue, and my wife shall not have disposed of the property hereby given to her, of which she is at liberty to give, sell, or will as she pleases, and not accountable to any person in the world for her acts, she will recollect at her death the quarter from whence it came: if she should die without will, the balance, or the whole of the un-disposed part of this property will go to my brother and sister, and she will, I hope, make provision for the unfortunate persons heretofore mentioned or alluded to, she knows to whom I allude, my brother also. I rely on their justice and magnanimity. I appoint my wife sole executrix of this my last will, and my brother John Robertson, attorney at law, and John G. Smith her friends, to aid and assist her in the execution of this will. I wish she may not be ruled to security by the court. My library I give to John Robertson, and Eot 216. I recommend the best understanding between my friends and family with my most amiable and affectionate wife, and trust she my live through this life with as much comfort as this world will afford, she deserves every blessing. I write this in great haste, *1 am sick at the time or should copy it over. It will do. ’ ’
    “B. W. Trent.”
    “I estimate my estate at Two Hundred and Eifty Thousand Dollars.”
    The testator died soon after, and the widow, Martha Trent, qualified as executrix.
    In September 1819, she filed her bill of injunction in the Superior court of Chancery for the district of Richmond, referring to the will, stating, that she had authority thereby to pledge all her testator’s property for the payment of his bank debts; that her annuity is a charge upon the whole estate ; that the bridge was the most productive part of the estate, and that if the tolls were diverted from the payment of the testator’s debts and her annuity, it would be highly injurious both to the estate and herself; that she had sold the personal estate not devised her, and applied the proceeds, deducting expenses, and a part of her annuity to the payment of debts; that debts were still due to a large amount, great part of which were due to the banks; that Dr. Trent and Mrs. Leiper having failed in a writ of unlawful detainer to obtain possession of the bridge, the former had surreptitiously taken possession of it, add of the' toll-house on her land, had got the toll books and was in receipt of the toll; that by his keeping possession of the only productive part of the estate, the personal property bequeathed her, will become in the first instance subject to the payment of debts: she prays an injunction prohibiting them from the receipt of tolls; and to compel them to put her in possession, until they shall give her security for her annuity, and for the application of the residue of the profits to the paj'ment of debts; and if necessary, that all the property not devised to her, should be sold for the payment of debts.
    *An injunction was awarded prohibiting the defendant from receiving toll, and from the use and possession of the bridge, &c. — and if the defendant should refuse to deliver, &c. the marshal or the sheriff of Chesterfield was directed to take possession, &c.
    The defendant Joseph Trent-answered— insisting that himself and his sister had a right to the possession of the bridge, and that the complainant with himself and the other persons named in the will, had only a collateral power to pledge it for the debts to the bank; that the rights of the banks were transferred to him, as he had been obliged to take up the testator’s notps, of which he was indorser to the amount of $22,000; he avers that he is willing that such sales may be made, as are necessary and proper, for the payment of the debts, and justice and expedience may require; but objects to the complainant’s having possession of the bridge, and applying the profits to her own use; he also objects to the process which has been awarded, as being irregular and illegal; and says, that the bridge may be injured by casualties, and suffer for want of repairs, if taken out of the hands of the proprietors.
    Mrs. Eeiper also answers, referring to Doctor Trent*s answer, and alleging that the estate of her deceased brother, is indebted to her, to the amount of 40 shares of Virginia Bank Stock.
    The deposition of John Robertson, the agent for the complainant, is taken in the cause — it proves that the estate was much in debt; that the defendant Joseph Trent, was largely a creditor, and details various communications between the parties, in relation to their controversy.
    On a motion to dissolve the injunction, the court rejected the motion, and directed a commissioner to state accounts, &c. and ordered the sheriff of Chesterfield who had taken possession under the order of court, to restore the bridge, and pay oyer the profits, &c. to the plaintiff, rendering an account, &c.
    *From this order and decree the defendants prayed an appeal.
    Stanard for the appellant.
    The first objection I have to make to the order of the Chancellor taking the possession of the bridge from the appellant is, that it is in effect a peremptory ejectment, granted on ex parte application, in vacation.
    The assertion of this unheard of power is sought to be vindicated by the general power of the Chancellor to award injunctions. Granting injunctions ex vi termini imports a power to prevent some impending injury, and not that of redressing a wrong already done. The very object of an injunction is to keep things in the condition in which they stand when the application is made. In England the whole proceeding is in personam. Our laws have scrupulously guarded against all changes of property, without allowing lo the party the benefit of an appeal to correct errors of law. Every interlocutory order in Chancery professing to change the possession, is subject to revision and reversal by this court. But there is no appeal from a pending injunction; tolerate the principle now asserted, and one may be turned out of his house, in the most inclement seasons, by ex parte proceedings, in vacation, of which the first intimation he has, is the order to leave his own fire-side, and family mansion. There is no precedent for such a proceeding in any volume of cases; no principle to sanction it in any writer on equity.
    As little cam the power be maintained under the law giving authority to the Chancellor to grant ne exeats. Thai proceeding is justified only by the strong necessity of the case: only on the supposition, that the property is about to be removed beyond the jurisdiction of the court. But the bridge cannot be removed. A ne exeat to arrest the removal of fixed property is an absurdity in law, and a solecism in language. The whole proceeding of the '’‘'Chancellor is then, unknown to our laws, unheard of in our courts; it is hazardous, mischievous in its consequences, and arbitrary in its nature. No case then, could warrant such an interposition of the Chancellor, but this case, would be wholly beyond the reach of the Chancellor, if in any imaginable instance he possessed the power he has asserted.
    The executrix has only a collateral claim at best, to secure the payment of her annuity, and of debts generally. But that does not authorise the executrix to take the real property from the heir. Courts have never gone farther where lands are charged with payment of debts, than to create an implied charge on the realty in the hands of the heir, ()
    The clause in the will then, gave to the personal representatives, no right to the possession of the real estate. The Chancellor has not observed the distinction which exists between an express power to sell, and a charge by implication on the real. He has proceeded on the authority of Maddox, () Donne v. Lewis, () contains the law at this time for the order of subjecting property to the payment of debts. There is but one case contrary to the doctrine there laid down : in Newman v. Johnson, () it was held that “a devise that debts and legacies being first deducted, all the real and personal to J. S.,” was a devise to sell for payment of debts.
    But if the testator had authorised the executrix to sell the real, for payment of debts, the executrix would not have had a right to take possession of the real estate. For such a power however clearly expressed, would not break the descent; the realty would pass to the heir subject to the devise. ()
    *The executrix then has a mere power to sell, and that is derived not from the power given in the will, but from the act of Assembly in conjunction with it, which provides, that the executor or administrator may sell, where the will appoints no one for that purpose. Prior to the act of Assembly, the sale could only have been made by a trustee appointed by the Chancellor for that purpose.
    Mrs. Trent is by the will devisee, and legatee of an annuity. As devisee she surely has no right to property not devised to her. As legatee of the annuity, she is a creditor to that amount, but no creditor under the will ever claimed possession of any part of the realty, and much' less a creditor by legacy. The will charges the payment of debts, on the realty, but not of legacies, and a legacy unless expressly charged on realty cannot be by implication. It may be said that if debts are paid out of real estate, her annuity shall be charged on personal estate; but if the right exist, it extends only to substituting her in place of specialty creditors, who had themselves no right to possession of the real. Even if the annuity had been by express words charged on the bridge, the heir would have the right of possession of the bridge, and to the residue of tolls.
    S. Taylor, contra.
    The bill charges that the whole personal estate of the testator is disposed of: that the defendant had tried an unlawful detainer and had been defeated, and nevertheless had, in the absence of the keeper of the bridge, taken possession of the toll-house, within the limits of the land devised to Mrs. Trent. The order of the Chancellor is, that the defendant shall be injoined from receiving the tolls, if the injunction was proper, the appointment of a receiver was a matter of course.
    Mrs. Trent, is the legatee of an annuity, and we may go into evidence aliunde to shew that the testator designed *to charge the payment of it, on the real property.() To do this even parol evidence is admissible. But in this case the face of the will proves that it was the intention of the testator, to charge the real with the payment of the annuity, for there was no other property not specifically appropriated, on which it could be charged but the realty.
    The preference given by the common law to the heir so much relied on, has no existence in Virginia: our statute of descents has destroyed every pretext for such preference. ()
    And even in England, annuities are chargeable on the real estate, () There is no difference between charges by implication, for the payment of debts, and of legacies; and it is clear, that debts charged by implication bind the realty, ()
    In this case it is to be remarked, that the annuity is to a wife entitled to dower in the real estate; and this testamentary provision is instead of dower. She is then a purchaser for a valuable consideration. ()
    The heir should at least give security for the payment of the annuity: that may be demanded wherever the legacy is payable at a future day. ()
    W. Hay, on the same side.
    It is unimportant, who has the right to execute the trust. The rights of Mrs. Trent in her individual character, are enough to warrant the decree. Nor does it matter whether the order was made in term or vacation. The bill states that the toll house descended clothed with trusts, the power of the court is clear if a trust existed; is that the case?
    *There are cases in which creditors come in to be satisfied out of a trust fund, and the personal estate being exhausted the Chancellor has appointed a receiver. () In this case the profits are liable as well as the subject: and the reason for a receiver’s being appointed is the stronger, from ' the destructible nature of the property. We have then, to sustain our case, to shew only, an interest in Mrs. Trent; and probability that the personal estate is already exhausted. That is charged in the bill; the answer neither admits, nor denies it; and the depositions prove not merely the probability, but the certainty of the fact.
    The equitable construction, and operation of such devises, as to' the liability of respective portions of the testator’s estate, has often been considered by the courts in England. The court is referred to the numerous cases without commentary, () The will charges the annuity on the whole estate, () and the implied charge binds the bridge.
    There is no distinction between charges by implication of debts and legacies; if there were, one would think it should be in favor of legacies. »
    Leigh, on the same side.
    This court is now sitting in judgment on an appeal from an order of the Chancellor, made in term time and not in vacation. If the decree be right in its main principles, but wrong in its details, it will be corrected and not wholly reversed.
    The general direction that debts shall be-paid, chargers the whole real estate with all the testator’s debts. The *cases are numerous to shew that such is the. effect of a clause in the commencement of a will, () and the reason is the same wheresoever the clause occurs in the will.
    If the real estate is charged with the payment of debts, the real estate descended must be subjected, before that specifically-devised to the widow, ()
    The annuity is a pecuniary legacy charged-on the real estate descended, from the plain intent of the will. The personal estate is. inadequate to the payment of debts; it cannot be charged on the personal property given the widow; not on, property specifically devised for the payment of debts; and there remains nothing on which it can-be charged, but the real estate descended.
    If the annuity be in lieu of dower, the widow is a purchaser for value, () The court has generally a power to appoint a receiver in such cases, where the heir refuses to give security: or it may even direct the descended property to be sold, and hold the proceeds subject to the annuity.
    No matter in what right the defendant holds, the trust attaches to the property in his hands, ()
    Wickham, concluded for the appellant.
    From the nature of bank debts, the moment the defendant assumed the payment of the debt due the bank by the testator, the estate of the testator was -discharged, and Trent the defendant to the bill, became-bound for the debt. This at once makes the defendant a creditor of the testator’s estate to a large amount. But for this prior and stronger claim, the complainant might have had all that she has asked.
    *The will incontestibly shews, that the testator designed his heirs should take the bridge. He gives to his wife a right of passage over it; a provision wholly unnecessary and even absurd,- on the supposition he had already given her the subject itself.
    By the true construction of the will, the widow is devisee of certain slaves; of household furniture; and legatee of an annuity of $1500 per annum. If the estate be insolvent, she can receive no portion of the property thus devised; and whether it be so or not, she must be postponed to the defendant to the bill, who is a creditor. If not, it would be to take from the defendant’s pocket without any equivalent, the whole bank debt which he has assumed to pay for the estate. He enters on the property as heir at law, which he is entitled to do: but even if he entered as a creditor (for he unites both characters) the widow whose right is subordinate, has no cause of complaint. Had she the possession, she would be obliged to give security to account for the profits which must be applied to the payment of the debts due the defendant, before any part is appropriated to the discharge of her legacy. The defendant ■exempts her from this responsibility without the least prejudice to her interest: she cannot therefore desire the possession for any equitable purpose.
    The case does not present a proper subject for an injunction. It is not one in its operation. It is in fact a writ of habere facias possessionem. The Chancellor proceeds upon the supposition that the descent is broken: but a devise that debts shall be paid does not break the descent. He perhaps has misapplied an expression used in Maddox, that “the testamentary disposition rides over the title of the heir,” the real meaning of which, is no more, than that the heir takes the property subject to the ■charge, and in subordination to it.
    It is not pretended that the original order of the Chancellor was right: and that being the foundation of all the *subsequent proceedings, it is tantamount to a confession of error throughout.
    The case of Jones v. Pugh, () which is relied upon, at most proves only the power of the court, where a proper case occurs for its interposition. The power in conceivable cases, surely does prove the propriety of its interference in this. It is a rule in marshalling assets, never to take the estate from the heir until the personal estate proves insufficient; another rule of marshalling assets is, that the heir is not responsible for profits; it is true that a creditor may extend the lands; and equity follows the law, but neither law nor equity will subject the profits in the hands of an heir or devisee, when they accrue before judgment.
    Admitting the power of the court asserted under the authority of Jones v. Pugh,() the question recurs, is this a proper case for the exercise of such power?
    Whenever a receiver is appointed, it is on the supposition that the person in possession is not to be trusted. Is the defendant unworthy of this trust? If any injury can result from his possession it is to the ■creditors: but they are thrown on another fund. Whereas the defendant’s debt is to be paid out of this very subject. He is obliged to account for the debt he has assumed even should the estate prove insolvent; and to take the complainant’s annuity out of this fund would be a fraud upon the creditors. He ranks first in the order of creditors on this fund, and unites to that character the quality of heir to the testator. The property then cannot be in safer hands. The very objection drawn from the perishable nature of the subject proves the superiority of his claim, for there is no one so strongly interested in its preservation. Even if the complainant had possession of the bridge, we could sue to divest her, or for the profits. If we be called on to marshall the assets, we say *we are applying them according to the distribution equity makes. Having taken this general view of the case, I come to reply more in detail to the several arguments on the other side.
    And 1st, That the annuity is chargeable on the real property.
    The parol evidence resorted to, to prove this intention, is inadmissible. Shermer v. Shermer, and Kennon v. M’Koberts,() were not cases in which parol evidence was admitted to explain the intention of the testator. In cases in which parol evidence has been admitted it has been confined to explanations of the true intention of the testator; here it is offered to shew his situation. And if the court will look into the actual state of his affairs, it will find the testator was wholly ignorant of it; he estimates his estate at more than $200,000. It is insisted that his charging debts on the real, is proof that he knew the personal estate was insufficient to pay his debts. The inference is not necessary. And it he meant to charge the legacies on the real, why did he not do it expressly, as he has the debts?
    It is a rule of law that the heir shall not be disinherited by implication. The rule is a wise and politic one; the objections made to it, apply not to the rule, but to the particular application of it, to the English law of descent; our statute has altered the persons who are heirs, but the rule remains unchanged: and this court is bound to respect it.
    It is said that, legatees stand in place of creditors, having a right to be satisfied out of this fund, which brings me to the 2d point made by the other side.
    But debts are not charged on the lands, except that due by the defendant. The clause in the will is, that particular real property shall be sold, and then “as ‘many of the lots in the town of Manchester as will be sufficient;” which confines the charge to the Manchester lots, and the property specifically directed to be sold.
    The 3d point, that the legatees may mar-shall the assets, therefore fails; for debts cannot claim satisfaction out of this fund; and legacies being in their place, can be in no better condition. But suppose the debts had been a charge on this subject, legatees can stand in place only of debts that have been satisfied out of the personal estate, that might have ranked on the real. But a legatee shall never rank as against the dev-isee of real estate; for both are objects of the testator’s bounty, and he who has the possession shall hold it. A legatee can only claim against the heir, not against a dev-isee, and surely a legatee can have no better right against a devisee merely' because he is also heir.
    The widow can derive no advantage from the circumstance of her having no dower allowed her. She might have insisted on her dower, but in that case she should not have acquiesced in the will. She has submitted to the will, and she must take all the consequences of her act. But if she could claim right of dower in the bridge, it would be to one third of the tolls: not to the entire bridge. The clause allowing her to pass toll free, negatives the idea, that the testator intended she should receive any portion of the tolls.
    Something1 was said of the toll house being on land expressly devised to the widow, but it is a mere accessory, and will follow the principal subject.
    
      
       Wills — Direction for Payment of Just Debts -Effect. —The proposition of the principal case that where a will directs that all the testator’s just debts shall be paid, this acts as a charge on the testator's real estate, was approved and followed in Clarke v. Buck, 1 Leigh 490; Thompsons v. Meek, 7 Leigh 429, 482.
      In Downman v. Rust, (i Rand. 589, it is said: “iOvory question of the charge on land under awill, is a questionof intention. In the ease of debts, it is so natural to suppose that a man in Ihatsolemn 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 *. Trent,, in (¡iha. Eep. 174. is one of that class.”
      See further, monographic note on “Marshaling Assets” appended to Carrington v. Didier. 8 Gratt. 2(50.
      Same — Legacies—When a Charge on Reai Estate-Paro! Evidence. — In Read v. Cather. 18 W. Va. 287, it is said: “Whether a legacy is a charge upon the real estate devised m a will is a question of intention upon the part of the testator. According to the English rule that intention is to be derived exclusively from the provisions of the will; and parol evidence is inadmissible to aid in ascertaining that intention. 1 Rop. Leg. 451 <576. 4th Ed.); Parker v. Fearnley, 2 Sim. and Stu. 592. In Virginia the rule is not so strict; and parol evidence is admissible. Downman V. Rust, 6 Rand. 587: Clarke v. Buck. 1 Leigh 490; Trent, i1. Trent's Mx’r, (Him. 174. Ciianokl-non KftVT thus states the law: that the reai estate will not be charged with the payment of legacies, unless the intention of the testator to that effect is expressly declared, or clearly to be Inferred irorn the language and disposition of the will; and that it was not sufficient, that debts or legacies are d i-rected 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. Chy. 614."
      See the principal case also cited with approval in Clarke v. Buck, 1 Leigh 491; note to Black v. Scott, 11 Fed. Cas. 516. Gas. No. 1,464.
      See further, monographic note on “Marshaling Assets” appended to Carrington v. Didier, 8 Grart. 260.
    
    
      
      (a) Free, in Chan. 262, 397, 430; 3 Ves. Jr. 738, 551, 359.
    
    
      
      Cb) 1 Mad. 474.
    
    
      
      ) 2 Br. Oh. 263.
    
    
      
      ) 1 Vern. 45: 1 Mad. Oh. 483.
    
    
      
      (e) 1 Bro. Ch. 137; Bonnet v. Newton.
    
    
      
      (f) 1 Wash. 96, 272. 56.
    
    
      
      
        (g) 1 Wash. 100-1.
    
    
      
      (R) 2 Vern. 228; 1 Ves. 499; 2 Vern. 443.
    
    
      
      (i) 3 Ves. ir. 551; 2 P. Wms. 190, note (2.)
    
    
      
      (k) 1 P. Wms. 127.
    
    
      
      <1) Wyatt’s Pr. Reg. 270; Amb. 273; 1 Mad. 178; 1 Br. CR. 105; 3 P. Wms. 299.
    
    
      
      (m) 8 Ves. ir. 71.
    
    
      
      (n) 2 Ves. 568; 1 Br. CR. 455; 3 Ves. ir. 738; SRal-croft v. Pindén. TRatthe annuitant Rad tRe right to come into equity to subject the realty; 3 Bro. CR. 347, 351, note; 1 P. Wms. 729 ; 8 Ves. jr. 382, for the whole doctrine.
    
    
      
      (o) 4 Viner, "Charge;” D. pi. 15.
    
    
      
      (p) 1 Br. Par. Ca. 511; 1 Ves. 271; 3 Ves. jr. 551, 738.
    
    
      
      (q) 2 Atk. 424-7-9 ; 2 Br. Ch. 263; 2 Ves. jr. 114.
    
    
      
      (r) 1 P. wms. 679, 549 ; 5 Ves. jr. 359; 2 Atk. 424.
    
    
      
      (s) Jones v. PugR, 8 Ves. jr. 71.
    
    
      
      (t) 8 Ves. 5r. 71.
    
    
      
      iu) Ibid.
    
    
      
      O) 1 wash. 206; Ibid. 96.
    
   ROANE, Judge.

The court is of opinion that according to the true construction of the will of Edward W. Trent, a charge was created upon the whole estate, for the payment of his debts. It was created by these words in that will,1 — “I direct the payment of all my just *debts;’ ’ and is not retracted by the subsequent selection of a part of his estate, to be sold for that purpose. The devise being in the first instance pure and simple, for the payment aforesaid; is not made conditional by what follows in another sentence, and respected the performance, and not the substance of the grant; which regarded rather the mode in which the payment should be made, than the question whether the payment should be made at all. Nor is this construction varied by the probable mistake under which the testator laboured as to the sufficiency of the property selected to pay the debts aforesaid. Estimating that property by the very high scale of value, by which he estimated his whole estate, and which the peculiar character of the times justified, there could be no doubt in his mind of its adequacy; and if so, his will did not contemplate a contrary state of things, nor, consequently, revoke the unqualified charge in it, before noticed.

The court is further of opinion that, exclusive of that charge, th'e result would probably be produced, by the express charge upon all the testator’s property in favor of the debts due to the banks, and by the consequent right of his other creditors to throw the bank creditors upon the other and ulterior property, so as to get satisfaction, themselves, out of the property which was particularly charged and selected.

It is further the opinion of the court that the whole .estate of the testator, not specifically devised or bequeathed is charged by his will to pay the legacy or annuity of S1S00 per annum, given to the appellee. We are so to consider it, because this fact is charged and relied on in the supplemental bill, and because sufficient facts are disclosed in the testimony, in relation to the insufficiency of the personal estate, to shew that this must have been intended by the testator. If he meant the legacy to be paid at all, he must have intended that it should be *charged on the realty: yet this charge snould not rest exclusively on the bridge now in question, not only because there are no words in the will so as to restrict it, but because an annuity which was intended for the maintenance and support of the widow, for life, ought not to depend on the existence of a subject which is of a nature peculiarly destructible. The appellee is therefore in the condition of a legatee having her legacy charged upon land, and her claim as such, must be postponed to those of the creditors having a lien upon the same subject.

We cannot consider that the appellee has claim upon the bridge in question, in part of her right of dower1 in the real estate; nor that the annuity in question was intended to be in lieu of dower, and therefore (as it might be contended,) has a pre-eminence over a mere and simple legacy. Neither of these grounds of claim is asserted by the bill or proved by the testimony. We cannot make the appellee’s case better than she has made it. We cannot injure the appellants by sustaining grounds of claim which were neither charged nor proved on the part of the appellees, nor could have been regularly disproved by the appellants, as they were not put in issue by the pleadings. We can only consider the appellee’s claim, upon this record as a simple legacy.

Subject in common with all the other real estate to pay the debts of the testator, and this legacy in subordination to those debts, the bridge in question descended to the present appellants. The3' took it, liable to the charge aforesaid, and they only in the first instance were entitled to the possession. The possession ensures to them not only on general principles, but by a construction growing out of the particular provisions of the will in question. A general right of possession in the appellee, of the bridge aforesaid, is inconsistent with that provision in the will, which gives to her the use of it for particular *purposes. The right of possession thus doubly guaranteed to the present appellants, ought not to be disturbed, until a change of possession should be made necessary, in fulfilment of the charge imposed on this property by the will; or until some mismanagement thereof, or misapplication of its profits, should render it improper that the appellees should hold the possession any longer. In either of these events however, the case ought to be previously'made out, to justify the interposition of the court. Until the change shall be shewn to be necessary, the regular principles of the common law, in relation to the possession ought not to be departed from. They ought not, especially in this case, in which the appellants have superadded to their characters of heirs, that of extensive creditors. Nor ought this peculiar kind of property which, is always in want of repairs, and is emphatically liable to destruction, to have been lightly taken from .the owners, and put into the hands of a mere bailiff. The permanent interest of all the parties would strongly lean against such a procedure.

°We are therefore of opinion, that the-change of possession of the bridge in question was, in this case, irregular and premature. Circumstances had not yet been disclosed to the court, sufficient to justify a change of that possession. It had not yet been shewn that the appellants were misapplying the profits of the bridge; or that they had been required, or had refused to-give security for the due application thereof. The main ground of the present: proceeding was on account of the appellee-herself. Without either charging or proving, that she had any claim of greater dignity than that of a mere legatee, she gets in the van of the creditors, and claims to possess and occupy for her own use, property which may eventually be exhausted by them. So far as respects her own rights, she has a decree from the court which is not justified by the premises she has established; and which may *never be proper, on account of the superior and conflicting- rights of the creditors.

We are therefore of opinion, the decree is erroneous, and ought to be reversed, so far as it conflicts with the foregoing principles; that the injunction should be dissolved; the possession of the bridge restored to the appellants, and the cause remanded to be further proceeded in, pursuant to the principles stated in this decree. 
      
      Brooke absent.
     