
    
      Ferris Pell et ux. et al. vs. Executors of Hugh Swinton Ball et al.
    
    1. Testator bequeathed to his wife a pecuniary legacy. The wife survived, and upon her decease, the complainants, as her next of kin, became entitled as well to her interests under the will, as by the Statute of Distributions. He directed his debts to be paid “from the nett proceeds arising from the sales of the crops” of his estate. After payment of his debts, and a legacy of ten thousand dollars to an adopted daughter, from the nett proceeds of his crops, he bequeathed a moiety of the crops to his wife, during her natural life, the other moiety to be equally divided between his brothers, E. O. B. and A. B., until his nephew, N. B. was of age, “after which period, he bequeathed the said half, last mentioned, to him, or in case of his death, to the next eldest of his brother, E. O. B’s sons, and their issue. Should the said N. B. leave a son or sons, they will have a precedence to the sons of the others.” If his wife should die before N. B. became of age, it was provided that, after her decease, the whole income should be divided between the testator’s said brothers, until N. B. was of age, “or the next eldest, in the event of his death, leaving no son or sons.” The provision for testator’s adopted daughter, and his brother, A. B. lapsed by their deaths in his life-time. Testator also bequeathed an annuity to his mother, of three hundred dollars, which, it was decided, was not chargeable on the crops of the estate, (ante, p. 86.)
    2. The Court were of opinion that the devise to testator’s nephew was sufficient to pass the fee, according to the laws of this State.
    3. Had the legacies been charged on the crops, the annuitant would have had the benefit of it, and the decision must have been otherwise. But not being so charged, both the annuitant and the general legatee must look to the residue of the estate, no other portion of the estate being charged with their payment.
    4. The bequest to A. B. having become lapsed by his death, and no disposition having been made of a moiety of the plantations and negroes after the majority of testator’s nephew, this portion of the real estate passed to his heirs at law, and the personal estate not effectually disposed of, became assets in the hands of the executors; which, not being sufficient to satisfy the legacy to complainants, it was insisted in their behalf, that the real estate in the possession of the heirs, or the real estate descended, should be resorted to, in aid of the personalty, for satisfaction. But held that the real estate descended, was not liable in satisfaction of complainant’s legacy, unless a necessity for so applying it had arisen in marshalling assets; as where personal estate, being the only fund for pecuniary legatees, has been appropriated to the satisfaction of creditors, the legatee thus acquiring an equity to stand in the place of the creditor, and be reimbursed, to that extent, from the real estate descended.
    
      5. But where a testator has prescribed the mode, or indicated the fund, as in this case, from which his debts are to be paid, it presents no case for marshalling assets.
    6. Prior to the enactment of 5 Geo. 2, real estate descended was subject to the payment neither of simple contract debts, nor of legacies. As to legacies, lands are in the same condition as before the Act.
    7. Since Manning vs. Spooner, 3 Ves. 114, the principle has been uniformly recognized, that in marshalling assets for the payment of debts, lands descended are never subjected where a fund has been appropriated by the will for that purpose, and that fund remains unexhausted.
    '8. In this case, a moiety of the real estate being well devised, and the de-visee a minor, the court refused to order a partition of the entire premises. Such partition would not be within the provision of the Act of 1791.
    9. It seems that where an inquirypias been directed, and made, in reference solely to the advantage which the minor would derive from a sale of the entire premises, the court might order such sale, the adults also desiring il. It should always require a strong case, exhibiting not only the present disadvantage of the situation of the minor’s estate, but the superiority of the proposed mode of investment, before the court would direct such change.
    The reader is referred to Gheves’s Eq. Rep. page 99, and to page 48 of this volume, for the decisions of the Appeal Court heretofore made in this case, as well as for a statement of the facts connected with it. The present case came before his Hon. Chancellor Dunkin, Charleston, July, 1843, who made the following decree:
    
      Dunkin, Ch. The decree of the Court of Appeals directed, among other things, that “ an account be taken of the different legacies; and that an inquiry be made as to the means of discharging them, or what provision should be made therefor; with leave to the master to report any special matter.”
    The master's report, filed on the 6th of July, 1843, states the legacy to the complainants at eighty thousand four hundred and forty-nine dollars, (80,449) and that the remaining estate of the testator was valued at ninety-four thousand six hundred and fifteen dollars. This included the plantations and negroes, estimated at eighty-eight thousand dollars ($88,000;) the Newport house at five thousand dollars, ($5000,) and some personalty amounting to sixteen hundred and fifteen dollars, ($1615.)
    The remaining trusts of the will of Hugh Swinton Ball, the master reported to be, the annuity to Mrs. Taveau; the legacy to Mrs. Ball; the legacy to Elias O. Ball; and the devise to Nonus Ball.
    The will directed the debts to be paid “from the net proceeds arising from the sales of the crops.”
    It was stated in the argument, that this had been already done, or that the balance would be extinguished by the crop of this year.
    After payment of his debts and a legacy of ten thousand dollars to his adopted daughter, Emma Ball, from the net proceeds of his crops, the testator bequeathed a moiety of the crops to Mrs. Ball, during her natural life, and the other moiety to be equally divided between his brothers, Elias O. Ball and Alwyn Ball, until the testator’s nephew, No-nus Ball, was of age — “after which period, he bequeathed the said half last mentioned to him, or in case of his death, to the next eldest of his brother Elias Octavus Ball’s sons, and their issue — should the said Elias Nonus Ball leave a son or sons, they will have a precedence to the sons of the others.” If Mrs. Ball should die before Nonus became of age, it was provided that, after her decease, the whole income should be divided between the testator’s said brothers, until Nonus was of age, “or the next oldest, in the event of his death, leaving no son or sons.”
    
      It has been already determined, that the provisions for Emma Ball and Alwyn Ball became lapsed by their respective deaths in the life-time of the testator.
    About the bequest of Elias O. Ball, it is not understood that any question is made. He will be entitled to a moiety of the crops during the period specified in the will.
    The court is of opinion that the language of the devise to Nonus is sufficient to pass the fee according to the laws of this State; and this is all that it is now necessary to determine in prosecuting the inquiry directed by the Court of Appeals, as to the amount of the legacies, and the means of discharging them.
    The annuity of three hundred dollars to Mrs. Taveau, the Court of Appeals have already decided not to be specifically chargeable on the crops of the estate.
    The means of securing this annuity, and the payment of the legacy to the complainants, constitute them the remaining subject of investigation.
    If the testator has, himself, provided any fund, either expressly or by iinplification, his will is the law of the case. But in this respect, the will affords no aid to the court. It is quite clear that the testator intended his planting establishment to be kept together until Nonus became of age, and probably during the life-time of Mrs. Ball. He has appropriated the entire proceeds of his crops, certainly, until the majority of Nonus. The disposition, atter that period, is expressed with less distinctness. Nonus was, manifestly, the ultimate object of his bounty. Throughout the will, the testator seems scrupulously desirous of disposing of his whole estate, and of providing for carrying into effect his entire plan. Yet there is no language used from which the court would be warranted in inferring a devise to No-nus of more than a moiety of the estate; and the other moiety is left without any ulterior disposition. Judging, however, from the wdll itself, the intention to give the whole to Nonus, might much more naturally be inferred, than that the testator contemplated the payment of this pecuniary legacy to Mrs. Ball, from any part of his agricultural estate. It may be added, that the careful direction as to Emma Ball’s legacy precludes the presumption that this legacy to Mrs. Ball was an implied charge on the crops.
    But this point seems scarcely open for argument. There is, certainly, no specific provision for the payment of this legacy; and if the legacies, generally, are not made a charge on the crops, there is no ground for contending that they are charged, by the will, on any other portion of the estate.
    The Court of Appeals have held that “the annuity to Mrs. Taveau, is not charged, by the will, upon the crops.” If the legacies had been so charged, the annuitant would have had the benefit of it, and the decision must have been otherwise. In Sibley vs. Perry, 7 Ves. 522, Lord Eldon says, “the rule is that an annuitant will fall under the general character of legatee, unless there is something to shew that the testator himself distinguished between them“in that,” says he, “I found myself upon the case of the Duke of Bolton’s will; upon which Lord Thurlow held that legacies being charged upon real estate, annuities were charged upon real estate as legacies.”
    If there was any thing in this will to indicate that the testator made a distinction, it is in favor of a charge of Mrs, Taveau’s annuity on the crops. In support of her claim, and against the objections of Elias O. Ball, it was argued, at least with plausibility, that as the only productive estate of the testator was his planting interest, and he had directed this estate to be kept together until a particular period, and had made no other provision for the payment of the annuity of three hundred dollars, it was intended to be paid from the crops.
    When the Court of Appeals sustained the objection of Elias O. Ball, and negatived this inference in favor of the annuitant, il seems to conclude the question in reference to the general legatee. Both thannuitant and the legatee must look to the residue of the estate.
    The bequest to Alwyn Ball having become lapsed, and no disposition having been made of a moiety of the plantations and negroes after the majority of Nonus, this portion of the real estate passed to the heirs at law of the testator, and the portion of the personalty, not effectually disposed of, would be assets in the hands of the executors. The personalty is entirely insufficient to satisfy the legacy to the complainants. It is insisted, on their behalf, that the real estate in the possession of the heirs, or the real estate descended, should be resorted to, in aid of the personalty, for the satisfaction of the legacies.
    This presents the principal question involved in the inquiries directed by the Court of Appeals, viz ; whether, by the laws of South Carolina, lands descended are liable for the payment of pecuniary legacies 'l
    
    By the common law, lands in the possession of the heir were not liable even for the debts of the ancestor. Such was the law of South Carolina until the enactment of the statute 5th George 2nd, by which lands in the hands of the lieir are rendered liable for all the debts of the ancestor, in the same manner as real estate in England is liable for specialty debts. This statute was passed for the provinces, and was confined to them in its operation. After a long conflict, in England, the stat. 3 & 4 William 4th, ch. 104, has rendered the freehold estates of a deceased debtor liable for the payment of his simple contract debts. These statutory provisions sufficiently prove the pre-existing law. The injustice of permitting the heir to enjoy the real estates of his ancestor, while his debts were unpaid, called (and not in vain) for legislative interference. It may be that similar relief should be extended to legatees. But if the evil exists, it is tor the legislative and not judicial remedy. As an abstract proposition, the court would be of opinion, that real estate descended, was not liable for the satisfaction of legacies. It can hardly be said, however, that this question has been hitherto undecided in our own courts. The condition óf the heir was fully considered by Chancellor DeSaussure, in Dunlap vs. Dunlap, 4 Eq. Rep. 324. The authority to resort to the real estate in the hands of the heir, for the payment of debts of the ancestor, is referred exclusively to the stat. 5 Geo. 2. “But,” says he, “the Act subjecting lands to the payment of debts, was never supposed to have levelled real to an equality with personal estate, in the administration of the assets of a deceased person.” He quotes the language of the court, in Hartly vs. Carson, decided in 1795, in which the Judges say, “it would be too bold for this court to level all the laws and practices of the country in the mode of the payment of debts, to what might be conceived to be the principle of the law abolishing the rights of primogeniture, by placing real and personal estate on the same footing in all cases. And it does not even appear that this was the intent or spirit of that Jaw.” In the case of Dunlap vs. Dunlap, the real estate was declared liable for debts in exoneration of the personalty, “it appearing,” say the Court of Appeals, “that the legacies are not only specifically given, but that the testator has fully expressed his intention to charge his real estate with the payment of his debts.” They held that “this charge amounted to a plain declaration of the testator, that the legacies given shall be exempt from the payment of his debts.”
    In Warley vs. War ley, 1 Bailey Eq. Rep. 297, (to which the court will have occasion hereafter to advert,) and in Drayton vs. Marshall, Rice Eq. 373, the subject was discussed, and the liability of real estate, in the possession of the heir, referred altogether to the stat. 5 Geo. 2. Prior to the enactment of that law, real estate descended, wTas subject to the payment neither of simple contract debts, nor of legacies. As to legacies, lands are in the same condition as before the Act.
    But in England, as well as in this country, it has always been the doctrine of Chancery, that real estate might, in some cases, be subjected, not only to the payment of simple contract debts, but to the satisfaction of pecuniary legacies. This arises in marshalling assets.
    If the testator had left no debts unpaid, the court has been unable to find any principle or authority which would sustain the claim of the pecuniary legatee against the heir at law. The absence of any authority appears to the court a strong argument against such claim.
    But the testator left, unpaid, debts to the amount, it was said, of twenty-five thousand dollars. Ordinarily, the real, as well as the personal, estate, would have been liable for the satisfaction of these debts. If the personal estate, which was the only fund for pecuniary legatees, had been appropriated to the satisfaction of the creditors, the legatees would have an equity to stand in the place of the creditor, and be reimbursed, to that extent, from the real estate descended. Aldrich ys. Cooper, 8 Ves. 396 ; Wm.’s Exors., 1056; Story Eq. 531.
    But this is a rule of this court, in the absence of any direction on the part of the testator. If he has prescribed the mode, or indicated the fund, from which his debts are to be paid, it presents no cause for marshalling assets. The principle cannot be better illustrated than by Mr. Ball’s will. He says “ my debts I wish to be paid in the following manner, viz: — from the nett proceeds arising from the sales of the crops, after paying plantation and other expenses.” After payment of his just debts, and the legacy of ten thousand dollars to Emma Ball, he directs the nett proceeds of his crops to be given, one moiety to his wife for life, the other moiety to his two brothers, until Nonus is of age, and, in the event of his wife’s death, the whole proceeds to his brothers, until the majority of Nonus.
    If both the brothers had survived Mrs. Ball, it would be very clear that they could only claim the residue of the proceeds of the crops, after the payment of the debts. Such is the language of the will, and such the plain intention of the testator. Although all the proceeds of the crops might have been exhausted in the payment of the debts, and the brothers get nothing, they would have no equity against the heir or distributees. Though it might well be argued that the testator manifestly intended some benefit to them, and that his bounty ought not to be defeated, yet the court would be bound to presume that he knew the law — that his estate, not disposed of, would pass to his heirs or distributees, and that the brothers must take what was provided by the wfill, and nothing else. But if both brothers had lived and enjoyed the surplus of the crops, after payment of the debts, until Nonus was of age, what equity would the pecuniary legatee have against the heir? No part of the estate, to which he had any claim, had been appropriated to the payment of debts in exoneration of the heir; and the principle of substitution is inapplicable. But whatever might be the disappointment, to which either the legatee of the crops, or the pecuniary legatee, would, in such case, be subjected, it is not such as this court is permitted to compensate at the expense of the heir. In England, the rule is well settled, that where a fund is created or selected by the will for the payment of debts, whether the fund so created be of real or personal estate, this fund must first be exhausted before the lands descended are liable, and even before personal estate, undisposed of by the will, is resorted to for that purpose. Harmood vs. Og lander, 6 Ves. 199, 8 V. 105. In Milnes vs. Slater, 8 Ves. 295, Lord Eldon cites, from a note, the language of Lord Thurlow, in Donne vs. Lewis, 2 Bro. (J. C. 257. “ The true question is, whether the testator meant only to behave honestly, which is all that a general charge on real estate imports, or whether, beyond that honest conduct in creating a general charge for the security of his creditors, to create also a particular fund for the payment of his debts.” “At this day,” says Lord Eldon, “ the rule must be considered settled, that (whatever may be the ordinary application) if there be a real fund created for the discharge of debts, that will be applied first; when the question arises between the heir and devisee, either as to estates which the testator had at the time, or which were afterwards acquired; and authority has gone this length now, that where the heir takes, not by the intention, but in the absence of intention, the testator is understood as having denoted, in a question between the heir and the devisee, that the estate devised shall first go to the debts, though the estate devised may not be legal assets, and the descended estates may be legal assets.” The case to which Lord Eldon here refers, as settling the rule, is Manning vs. Spooner, 3 Ves. 114. That was an estate in the West Indies, where the statute 5 Geo. 2, was of force, rendering lands liable for the payment of debts. The Master of the Rolls, (Lord Alvanley) says, “ The question whether the descended estate is liable before those devised, depends entirely upon this point, whether there is a specific gift of any part of the estate for the purpose of paying the debts; or whether it is only a general charge for that purpose.” “ If part is selected for that purpose, that part shall be applied before the descended estate, whether the testator had that estate before he made his will or not.” After referring to the will, his Lordship held, that “ there w7as a part selected and appropriated for the debts“ especially,” says he, “when we consider the nature of the property, which is situated in the West Indies, and is liable to all his debts, independent of any will of his. But even if it were an English estate, which is not liable to all debts, even in that case I should have thought that a provision of this sort, appropriating the rents and profits first to the payment of his debts, is a specific gift, which must be first applied.” Considering it, however, as a West India estate, it could not be viewed as a general charge, for the estate was already so chargeable; and if the provision was to have any effect, “it must be to appropriate this fund, and for no other purpose.” “If so,” says he, “ the question is whether the plaintiffs, i;(among others, the legatees of the testator,) have a right to call upon the heir, to whom the after purchased estate had descended, to' apply that estate first to the debts ; and I am of opinion that the heir cannot be called on to contribute, till that fund so appropriated, not merely to take care that all the debts shall be paid, but for the particular purpose of the appropriation, has been exhausted.” “If creditors are not concerned, the plaintiffs have no right to call upon the heir.”
    Since Manning vs. Spooner, the principle has been uniformly recognized that, in marshalling assets for the payment of debts, lands descended are never subjected, where a fund has been appropriated by the will for that purpose, and that fund remains unexhausted. And in Milnes vs. Slater, (already cited) Lord Eldon applied the same rule, in behalf of the next of kin claiming the personal estate not disposed of by the will. In Livingston vs. Livingston, 2 4. C. R. 153, and in Livingston vs. Newkirk, lb. 323, Chancellor Kent adverts to the authority of Manning vs. Spooner, as the law of this court. So in Hall vs. Hall, 2 McC. C. R. 303, Chancellor De-saussure, after reviewing the cases, states the rule to be that “ Where the will creates a particular fund for the payment of debts, that shall be first applied in exoneration of descended estates, whether acquired after the date of the will or not.” “ I think,” continues he, “that as the testator did provide for the payment of his debts and legacies out of the whole estate he possessed, at the time of making his will, and he could speak of and refer to no other, that the after acquired descendable and distributable estate is exonerated from the payment of his debts and legacies, which must be first paid out of the estate subjected by the will to his debts and legacies.”
    In Warley vs. Warley, 1 Bail. Eq. 397, the subject of marshalling assets was fully discussed. It was there held that, in this State, the first fund is the real or personal estate devised for the payment of debts, or in any manner directed to be so applied. Second : personal estate not specifically bequeathed. Third : descended real estate. Fourth : personal estate specifically bequeathed ; and lastly, real estates devised. It may be remarked that, in Warley vs. Warley, the principal object of the testator’s bounty was disappointed in deference to a rule regarded as well established. The result of the case is, that if the testator has clearly indicated the fund from which his debts are to be paid, it is the law of his estate and supersedes and excludes the interference of the court in marshalling the assets.
    It remains only to recur to the inquiry, whether there is any such selection or appropriation for the payment of the testator’s debts; if so, in the language of Manning vs. Spooner, “ it is a specific gift for that purpose.” The testator, more than once, directs, “all his debts to be paid from the net proceeds arising from sales of the crops,” which, in one place, he particularizes as “the produce of his plantations, Mepshew, Pimlico and Keckliko, and the negroes’ labor, and the toll of Mepshew Mill.” The language is too distinct and emphatic to be misunderstood. It amounts to a specific appropriation of the proceeds of sales of his crops to the payment of his debts, until the extinguishment of those debts. Until that period, there was no intestacy as to the proceeds of his crops. It is not a case in which the law of the land has given to the creditor a fund to which the legatee might have resorted, and who might have, therefore, asked the aid of this court for reimbursement. The testator himself has withdrawn the fund. If he had bequeathed to his creditors, by name, twenty-five thousand dollars, directing it to be paid (as he had directed Emma Ball’s to be paid) out of the first proceeds of his crops, the appropriation could not have been more perfect.
    The court has said that no authority was adduced sustaining the claim of a general pecuniary legatee against the heir at law or distributee, where a fund had been appropriated for the payment of debts. To establish the claim, under such circumstances, would seem, substantially, to subvert settled principles. If the plaintiffs may recover their legacy, or any part of it, from the heir at law, he would certainly be entitled to reimbursement from the legatee of the crops, since, according to the rule fully recognized in Warley vs. Worley, as well as previous decisions, that fund (the proceeds of the crops) is chargeable in order before estates descended. In that event, the legatee of the crops would be postponed, not only to creditors, but to general legatees.
    It has been already adjudicated that, as to a moiety of the crops, after the payment of his debts, and until the majority of Nonus, Mr. Ball died intestate. On the part of the executors it is submitted that the whole estate should be kept together until that period, and that such was the intention of the testator.
    Mr. Ball certainly did not contemplate a sale, or a division, or any other change of his agricultural estate, until Nonus became of age. But the scheme of the testator has been partially defeated by events neither within his foresight nor control. The death of Alwyn Ball in his lifetime, and the subsequent decease of Mrs. Ball, have, to a certain extent, marred the purposes which he had in view. It has become impracticable to carry his intentions fully into effect, and the duty of the Court is discharged by fulfilling the intention so far as circumstances will permit. Both the complainants and the heir at law unite in the desire that the portion of the estate, not effectually disposed of, should be forthwith brought to sale. It would present a much more embarrassing question if the sale of this portion necessarily required a sale of the remaining moiety: — strong arguments might, with justice, be urged against thus breaking up the entire plan of the testator. But no such necessity has been exhibited to the Court. The testimony reported by the Master has been carefully considered. It is quite clear that, if a sale of the whole estate must be made, the plantations would probably be more advantageously sold together, and as one estate. But there is nothing to warrant the conclusion that a moiety may not be set off to Nonus Ball, leaving the other moiety to be sold for a division between the heirs at law. One of the witnesses testified that there are already two settlements on the plantations, which, in his opinion, would facilitate such division. If this can be done, the manifest intention of the testator in relation to the devise to Nonus should control the discretion of the Court. But it is not certain that, for the mere purpose of partition, this Court has any authority, in the case presented, to direct a sale of the entire premises, against the desire of one of the parties. This power has, in no instance, it is believed, been exercised by the Court of Chancery in England. In Story, 1, 608, it is said that “a Court of Equity may, with a view to the more convenient and perfect partition or allotment of the premises, decree a pecuniary compensation to one of the parties for equality of partition, so as to prevent any injustice, or unavoidable inequality.” The authority cited, Calmody vs. Calmocly, 2 Yes. p. 570, does not leave it clear that such inequality may be rectified by pecuniary compensation from another part of the estate, although such may be the practice in England, as it certainly is in South-Carolina. But the Court in England have never undertaken to order a sale of the freehold for the purpose of partition. The statute 31 Hen. 8, cited in the argument, does not confer this power. In this State the Act of Assembly of 1748, which seems confined to the Court of Common Pleas, makes no provision for a sale. Neither this Court, nor the Court of Common Pleas, have any authority to direct a sale of the entire premises for the purposes of partition, but as derived from the provisions of the Act of 1791, and in the cases contemplated by that Act. It has been repeatedly decided that this Act was exclusively confined to partition among the heirs of an intestate; Crompton vs. Ulmer, 2 N. <& M’C. 429 — Spann vs. Blocker, lb. 593. In this case a moiety of the real estate is well devised, and the devisee is a minor. It is not within the purview of the Act of 1791.
    It is true that this court, not unfrequently, changes the property of minors, and, for that purpose, sometimes orders the sale of real estate. If the inquiry had been directed, and made, in reference solely to the advantage which the minor would derive from a sale of the entire premises, it may be that the court would order such sale, the adults also desiring it. It is hardly necessary to say, that this was not the character of the inquiry, nor would the evidence in that aspect, warrant a decree of sale. It should always require a strong case, exhibiting not only the present disadvantage of the situation of the minor’s estate, but the superiority of the proposed mode of investment, before the court would direct such change.
    
      It is ordered and decreed, that the Master’s report, ascertaining the amount due to the complainants, be confirmed} and that the remainder, if any, of the debts due by the testator, be paid from the crops of the estate.
    
      It is farther ordered, that a moiety of the negroes on the plantation, be sold by the executors, on such terms as the complainants may direct, and that the proceeds of sale, together with the proceeds of the other personal estate not specifically bequeathed, be applied towards the payment of the legacy to Mrs. Anna Elizabeth Ball, and the annuity to Mrs. Taveau, in average and proportion, the executors investing so much money as will secure the said annuity, the capital to be paid to the legal representatives of Mrs. A. E. Ball, on the decease of the annuitant.
    
      It is further ordered and decreed, that a writ of partition issue, to divide between the heirs of Hugh Swinton Ball, deceased, and Elias Nonus Ball, the plantation on Cooper river, described in the pleadings, so as to set off one moiety thereof to the said Elias Nonus Ball, to be held subject to the limitations and provisions of the will of the testator, and to divide the other moiety, so as to set off one-half thereof to Mrs. Taveau, and the other half, in equal proportions, to Mrs. Pell and Mrs. Sumner; and if the commissioners in partition shall be of opinion, that the moiety cannot be fairly divided among the heirs at law of the said H. S. Ball, without manifest injury to the parties therein interested, then the said commissioners shall make a special return in relation to the said moiety, according to the form and terms prescribed by the provisions of the Act of Assembly of 1791.
    
      It is further ordered, that the proceeds of sale of the Cannonsborough house, be divided among the heirs at law of Hugh S. Ball, deceased, in the proportions above indicated.
    Parties to be at liberty to apply for such further orders as may, from time to time, be deemed necessary.
    Complainants appealed, on the following grounds.
    1. That the bequest of the produce of the plantations is not a specific legacy of testator’s negroes.
    2. That the devise to Mrs. Ball is in satisfaction of a debt, and, therefore, chargeable on real estate descended.
    3. That by the decrees heretofore made, as well as by the law of this court, the real estate descended is liable to the legacy to Mrs. Ball.
    
      Peligra & Lcsesne, for appellants.
    
      Mazyck, Memminger and DeSaussure, represented the other parties.
   Cana, per Johnson, Ch.

The court, after a careful examination of the grounds of this appeal, are of opinion that they cannot prevail, and concur in the decree of the Circuit Court. It is necessary, however, that the cause should go back to the Circuit Court, for the purpose of obtaining the orders necessary to carry into effect the decrees heretofore made ; and it is ordered and decreed, that this appeal be dismissed, and that the cause be referred back to the Circuit Court, to make such order as may be necessary and proper for effecting partition of the real estates, con-formably to the decrees of the court heretofore made, by sale or otherwise, as may be found necessary ; and also, to make such further order as may be necessary for the final settlement of the estate.

Dunkin and Harper, Chancellors, concurred.

Johnston, Ch., absent, at the hearing, from indisposition.  