#### Clarke and Wife v. Buck.

November, 1829.

Wills — Construction—Legacy and Debts Charged on Real Estate* — Case at Bar. — B. owning real and personal estate, makes bis will, beginning “It is my *173■will and desire that all my just debts be paid; after that, I wish that C. have 1000 dollars, provided my estate will admit of it:” then he bequeaths to the same 0. the greater part of his personal chattels, specifically; making no mention of his real estate, which descends to his heir at law; the whole personal estate proves Insufficient to pay debts and the legacy of 1000 dollars; HjhijD, that both the testator's debts, and O.’s legacy, are charged by the will on the real estate descended.

James U. Blair made his last will and testament in these words: “It is my will and desire, that all my just debts be paid— After that I wish that Miss Lucy Collins have 1000 dollars, provided my estate will admit of it. I also leave ana bequeath to her one tea caddy, one bed and such clothes to the bed as she may think proper to take. I also, in addition, leave her what bank stock I may die possessed of, also what turnpike slock in the same manner; one bible in the name of my sister Glassel — ! also leave to Lucy, all the plate left in the house — I also leave one set of elegant china and tea board, to Lucy Collins — J wish that Miss Collins to provide for Diana and make her comfortable — I leave one chest of drawers, which my mother always deposited her clothes in, to Miss Collins — I also leave to Miss Collins, the china dishes and plates left at my death, the large looking glass in the drawing room, and one of the round ones in the chamber, and one salver.”

Administration with the will annexed was granted to Buck, the appellee.

*The testator had real estate, which not being disposed of by his will, descended to his heir at law, who was the same Buck, the administrator.

Miss Collins, the legatee, married Charles Stewart; and Stewart and wife first exhibited, in the superiour court of chancery of Fredericksburg, a bill against Buck, in his character of administrator with the will annexed, praying an account of the personal estate of the testator and of the administration thereof, and a decree for the legacy of 1000 dollars. The administrator answered, that the personal estate had been applied to the payment of debts, and that a very trivial balance if any would remain to be paid to the legatee. And this, upon an account of the administration ordered by the chancellor, and reported, was found to be true: it appearing, by the report, that the value of the whole personal estate, including the articles specifically bequeathed to Miss Collins, did not amount to 1000 dollars ; and that the balance, after paying debts, was only 123 dollars.

Stewart having died pending the suit, Mrs. Stewart, the legatee exhibited a supplemental bill against Buck, as the heir of the testator, praying to charge the legacy on the testator’s lands descended to him. To this bill, Buck demurred; and thus presented to the court the question, whether the legacy could in any way be charged on the real estate descended?

Chancellor Browne held that it could not, and dismissed the supplemental bill. And Mrs. Stewart having since the decree married Clarke, Clarke and wife applied to this court for an appeal from the decree; which was allowed them.

Harrison, for the appellants,

contended— 1st, That the will charged the testator’s real estate with the legacy. It directs, that his debts shall be paid, and after that, that Miss Collins shall have the legacy of 1000 dollars, provided his estate will admit of it; meaning his whole estate, real and personal ; for, as it appeared, that almost his whole personal ^estate was specifically bequeathed to the same legatee, in the sequel of the will, it could not be imagined, that he intended the legacy of 1000 dollars to be satisfied out of that. Kightley v. Kightley, 2 Ves. jun. 328; Williams v. Chitty; 3 Ves. 551; Shallcross v. Finden, Id. 738; Keeling v. Brown, 5 Ves. 359. 2dly, If the will should not be construed to charge the legacy on the testator’s real estate, it certainly charged the real with his debts; and then the debts ought to have been thrown on the real, and the personal estate left to discharge the legacy. Foster v. Cook, 3 Bro. C. C. 347; Aldrich v. Cooper, 8 Ves. 382; Trimmer v. Bayne, 9 Ves. 209. And this even though the bill had not been framed with that view. Gibbs v. Ougier, 12 Ves. 413. 3dly, In all events, the specialty debts which bound the real, in the hands of the heir, ought to have been thrown on it, and the legatee let in for satisfaction out of the real, at least to the extent to which the personal had been applied to such debts.

Patton, for the appellee,

argued, that the will did not charge the legacy on the real estate of the testator, which he did not mention in his will, but left to descend to the heir at law: that the testator having only the personal estate in his mind, and meaning to dispose of that alone, referred to the adequacy of the personal estate, when he said that the legatee should have the legacy, “provided his estate would admit of it.” He might have had a larger personal estate when he made the will, than he left at his death : he might then have had ample personal estate, besides that specifically bequeathed, to pay his debts and this legacy too: he might have underrated his debts, and overrated his wealth; a very common case.

He said the real question was, whether the will charged the real estate descended, with the testator’s debts, so that the personal assets being exhausted in the paj'ment of the debts, the legacy ought to be charged on the land, on the principle of substitution? The will contained only a simple '^direction that the debts should be paid, without any indication that the real estate was intended as a fund for the payment of them. That was not devised or even mentioned in the will. Now, he said, there was no case, in which lands descended, had been charged in the hands of the heir, with the debts of the an • cestor, by a mere direction in his will, to pay his debts; and he examined the cases cited by Harrison, to shew, that they did not support any such proposition. He cited Powell v. Robins, 7 Ves. 209; Davis, v. Gardiner, 2 Cox’s P. Wms. 187.

*174As to the claim to marshal the assets, and charge the specialty debts on the real estate, and to relieve the legatee pro tanto, he said that claim was asserted here for the first time: there was no suggestion of the kind in the bill.

*

Wills — Construction—Charge upon Real Estate. — In Thompsons v. Meek, 7 Leigh 432, it is said by Carr, X, the first clause in the will is, “I desire that my *173funeral expenses, and all my just debts be paid.” This In the commencement of a will, has often been decided to be a charge upon the realty. Trent v. Trent, Gilm. 174; *Clarke v. Buck,*1 *Leigh*487. On this question, the principal case is cited in Read v. Cather, 18 W. Va. 267; *note*to Black v. Scott, 3 Fed. Cas. 516. See monographic *note*on “Wills.”

CABELL, J.

The court is of opinion, that, by the will of J. Ü. Blair, his real estate was charged with the payment of all his debts; Trent v. Trent’s ex’x &c., Gilm. 174. And as it would be against equity, that those who have the choice of two funds, should defeat the just claims of others, by selecting that which is the only fund accessible to others, the appellant, Mrs. Clarke, (formerly Lucy Collins) ought, on the principle of marshaling the assets, to be let in to have satisfaction out of the real estate of the testator, for her general and specific legacies, so far as the same have been broken in upon, or interfered with, by the application of the personal estate to the payment of any of the testator’s debts. Aldrich v. Cooper, 8 Ves. 382; 1 Madd. Chan. 615, and seq. and the cases there collected.

But this is not all; for the court is also of opinion, that, by the testator’s will, the pecuniary legacy of 1000 dollars to Miss Collins, -now Mrs. Clarke, is a direct and absolute charge upon his real estate, not indeed by the express terms of the will, but by strong and necessary implication. It appears from'the commissoner’s report, that the whole of the personal estate did not amount to 1000 dollars; and the will shews that much of this was specifically bequeathed to Miss *Collins. The testator surely intended that she should have that. The whole of ■ the personal estate was not much more than sufficient for the payment of the debts of the testator. Yet it was certainly his intention that Miss Collins, the sole object of his bounty, should have, in addition to the specific legacies, the sum of 1000 dollars, after the payment of all his debts. This object could not be accomplished but by resort to the real estate. Such must have been the intention of the testator; and that intention ought to be carried into effect. The case of Trent v. Trent’s ex’x is a strong authority on this point also; for, in that case, the legacy or annuity to Mrs. Trent was not expressly charged on the real estate; yet this court held it to be charged thereon, by the intention of the testator implied from the known insufficiency of the personal estate.

On these grounds, the decree of the chancellor is reversed, and the cause remanded, to be finally proceeded in, according to the principles now declared.