#### SAMUEL S. BIDDLE *against*WILLIAM W. CARRAWAY AND OTHERS.

Where a testator directed a pecuniary legacy of $1500 to be paid to his wife by his executors “ out of my estate,” for a certain purpose, and by a codicil reduced the amount to $750, “tobe paid by my executors,” it was *held*that the terms of the codicil did not annul the force of the words “ out of my estate,” contained in the will.

Where a testator, after bequeathing certain property for the payment of his debts, gave the residue of his property in specific devises and bequests, and then bequeathed general pecuniary legacies with the direction “ to be paid by my executors out of my estate,” and the fund provided for the payment of debts, proved insufficient for the purpose, it was *held,*(Pearson, O. J., dis-sentient^) that the pecuniary legacies were a charge upon the specific ones, and that the latter must be exhausted before the former could be touched. But whéther they were a charge on the land specifically devised. Quere ?

Personal property, which a testator has given away in his life-time, and which does not need the aid of his will to pass the title to it, does not abate for the payment of debts, where there is a deficiency of assets, although the testator confirms the gift in Ms will.

*96Cause removed from the Court of Equity of Lenoir county.

Snoad B. Carraway died in the county of Lenoir, about the year 1858, leaving a last will and testament, in which he appointed the plaintiff and the defendant, William W. Carra-way, executors, and this bill is filed against defendant, Carra-way, and the legatees and devisees, and prays among other things, for a construction of the executor’s will.

The parts of such will as are necessary to a correct apprehension of the matters in controversy, are as follows:

“First, I wish my just debts to be paid out of the sales of my perishable properly, not hereafter given away; should my perishable property be insufficient to pay my debts, I wish the following negroes to be sold on a credit of one year, with interest from the sale, Rosetta, Jordan, Joshua, Noah, John, Wesley, and also, the children the said Rosetta may hereafter have; should the said negroes not be necessary for the payment of my debts, in that case I give and bequeath them to my son W. W. Carraway and Mary J. Nicholson, to be equally divided between them.”

Second. This clause, after devising and bequeathing to Sarah F. Carraway, wife of the testator, a tract of land with the improvements, also, slaves, stock, farming utensils, furniture, &c., proceeds as follows: I hereby direct my executor to pay to my wife, Sarah F. Carraway, one thousand five hundred dollars out of my estate, to repair and furnish the house at Brandon, in Wake county, also, an ample sufficiency of every necessary for the support of herself and family one year.

“ Seventh. I give and bequeath unto cousin Louisa Carra-way, five hundred dollars, to be paid by my executors out of my estate.”

The testator, in the other clauses of his will, devises and bequeaths, specifically, to his children and to his sisters, a large real and personal estate.

To this will, there was a codicil in these words : “ Whereas, I, Snoad B. Carraway, of the county of Lenoir, and State of North Carolina, have made my last will and testament, in *97writing, bearing date, January the twenty-eighth, one thousand eight hundred'and iifty-six, in, and by which, I have directed my executors to pay to my wife, Sarah, fifteen hundred dollars, for the purpose of repairing and furnishing the house at Brandon, Wake county. Now, therefore, I do by this, my writing, which I do hereby declare to be a codicil to my last said will and testament, and to be taken as a part thereof, order and declare that my will is, that the sum of seven hundred and fifty dollars shall be paid by my executor to my wife, Sarah, to finish the improvements and furnish the house at Brandon, Wake county, the chief part having already been done.”

The pleadings disclose the fact, that after exhausting the proceeds of the sale of the perishable property, and of the sales of ■negroes, provided by the testator as a fund for the payment of debts, there remained due from the estate, debts, to the amount of $5,400. The principle question, raised by the pleadings, is, whether the general pecuniary legacies to Mrs. Car-raway, and the pecuniary legacy to Louisa Carraway, are eharges upon the specific legacies, or whether they fail through a deficiency of assets.

The cause being set down for hearing upon bill, answers,, and exhibits, was tranferred to this Court by consent.

*J. W. Bryan,*for the plaintiff.

*Strong*and *Fowle,*for the defendants.

Battle, J.

The bill was filed for the purpose of obtaining a ■construction of the will of Snoad B. Carraway, deceased, and the main questions raised by the pleadings are, whether the legacies given by the testator to his wife, to repair and furnish “the house at Brandon, in Wake county,” and for one year’s support of her herself and her family, and the legacy of $500 given to the testator’s cousin, Louisa Carraway, are bequeathed in such terms as to make them a charge upon the specific legacies; or are they to be regarded as mere pecuniary legacies, not so charged, and, therefore, first liable for *98the payment of debts, upon a deficiency of the assets appropriated for that purpose ?

The language of the bequest to the wife, is as follows: “ I hereby direct my executors to pay to my wife, Sarah E. Oarraway, one thousand five hundred dollars, out of my estate, to repair and furnish the house at Brandon, in Wake county. Also, an ample sufficiency of every necessary for the support of herself and family for one year.” The bequest to Louisa Oarraway is of “ five hundred dollars, to be paid by my executor out of my estate.” By a codicil, the testator declared his will to be “ that the sum of seven hundred and fifty dollars shall be paid by my executor to my wife, Sarah, to finish the improvements, and furnish the house at Brandon, Wake county, the chief part having already been done.” A question has been made upon the terms of the codicil: whether they revoke and annul the force of the expression contained in the will, that the legacy is to be paid by the executor out of the testator’s estate. W e think clearly that they do not; because it is manifest that the testator’s only intention was to lessen the amount of the legacy, the object of the bequest having been already partly accomplished. In the late case of *Dalton*v. Houston, 5 Jones’ Eq. 401, the following passage from 1 Jarman on Wills, 160, in regard to the effect of a codicil upon a will, is quoted with approbation, and we think it governs the present case. “In dealing with such cases, (says Mr. Jarman,) it is an established rule *not to distmrb the dispositions of the*will, further than is *absolutely necessary*for the purpose of giving effect to the codicil.”

Another question has also been made, whether the bequest for the widow’s years’ support is expressed in the terms *“*to be paid by the executor out of the estate,” and we think it is, by force of the word “ also ” coming immediately after the legacy given for the repair and furnishing of the house at Brandon.”

These questions are preliminary to the main one, which we will now proceed to consider. In discussing this question, we will first remark, that if the testator had simply directed the *99legacies to be paid out of bis estate, without saying by his ex* ecutor, we should not hesitate to hold that they were a charge upon the land as well as upon the personal property; the former, however, being only an auxiliary fund to be brought in after the latter, as the primary funds, had been exhausted. In support of this proposition, we should rely upon the case of *Bray*v. *Bamb,*2 Dev. Eq. Rep. 312, as one directly in point. The expression there, was, “ I give and bequeath unto Nancy Guilford Bray, five hundred dollars, to be raised and paid out of my estate.” The Court held the legacy to be well charged upon the land. In delivering the opinion, we do not discover that RttepiN, Chief Justice, laid any particular stress upon the word “ raised,” and we are unable to perceive any difference in the meaning of the terms “raised out of my estate,” and “ paid out of my estate.” We do discover, though, that he emphasises the word “estate,” to show that the realty as well as the personalty, was included in its signification. — ■ We do not overlook the fact that his Honor uses the word “ raised,” and it was natural that he should do so, because that word was used in the will, but we cannot perceive that he assigns to it a meaning stronger than would have been conveyed by the word “ paid,” to which it is conjoined. But it is unnecessary to pursue the enquiry, as it is contended in the present case, that as the legacies are to be paid out of the estate *by the*executor, the land cannot have been meant, because the executor has no control given him by the will over tire land, and, therefore, the term “estate” must be restricted to the personal estate. Supposing that to be so, still the expression may furnish an argument that if the testator *intended*to charge the legacies upon the real, as well as the personal estate, and failed to do so as to the land, because he directed them to be paid by his executor, it shows conclusively that he intended them to be paid out of the primary fund, to wit, the whole personal estate. Waiving, however, this argument, we are inclined to the opinion, that when a testator directs a pecuniary legacy to be paid by his executor, out of his estate, he thereby, either expressly, or by the necessary con-*100struetion of bis language, gives it a preference over his specific legacies, or, in other words, he means that it shall be paid any how, or in any event, provided all the personal assets are not exhausted in the payment of debts. But, if we are mistaken in this, as a general proposition, we are satisfied that the testator so intended in the present case, and that such intention is so clearly manifested in the will itself, that we are bound to give effect to it.

The general proposition is, we think, supported by principle, as well as by the authority of the leading case, *Sayer*v. *Say-*er, Prec. Chan. 392. The general rule undoubtedly is, that specific legacies do not abate in favor of pecuniary legacies. This is founded on the presumed intention of the testator, that they shall not so abate; but it is clear that the testator may declare a different intention, and may, if he think proper, by express words, or by a necessary implication, put general or pecuniary legacies upon the same footing in this respect with specific legacies, or may impose them as a charge upon such legacies, so that, upon a deficiency of assets, for the payment of debts, the specific legacies shall be first exhausted before the general or pecuniary legacies can be taken. There are two classes of cases where such will be the result: first, where a testator gives specific and pecuniary legacies, and after-wards says that such pecuniary legacies shall come out of all his personal estate, or words tantamount. Secondly, where there is no other personal estate than the specific legacies; for, in that case, they must be intended to be subject to the pecuniary legacies, otherwise, those legacies would be mocked ; See *White*v. Beaty, 1 Dev. Eq. 87 and 320. In *Sayer*v. Sayer, the specific legacy was not subjected to the payment of the general legacy, on account of the special words of the will, but the general principles with regard to the two classes of cases above specified, were clearly recognised and laid down by the Lord Chancellor. In the will now before us, the testator, in plain terms, directs the general or pecuniary legacies in question to be paid by his executor “ out of his *101estate,” which, as there is no exception, must mean out of his whole estate.

But, if the proposition, that a general or pecuniary legacy is charged upon a specific one, (when there is a deficiency of assets to pay both,) by the express direction to the executor to pay it out of the testator’s estate, is denied or doubted, we then say, with great confidence, that the testator, in the present will, has given a preference of the pecuniary legacies over the specific ones. The testator has, as we think is apparent from the will itself, given away all his estate, both real and personal, specifically, except the fund which he directs to be first applied in the payment of his debts. Of the sufficiency of that fund for the purpose intended, he expresses a doubt by saying “should my perishable property be insufficient to pay my debts, I wish the following negroes to be sold,” &e. He then specifies six negroes whom he wishes to be sold for the payment of the residue of his debts, giving them, if not wanted, or so many of them as might not be wanted for that purpose, to certain specified legatees. The testator then, having gi ven away specifically all his personal estate, except the perishable property which he devoted to the payment of his debts, and which he manifestly supposed might not be sufficient for the purpose, and which the answers admit was not sufficient for the purpose, out of what fund could he have intended his general legacies to be paid when he directed them to be paid out of his estate? The reply is obvious that he intended that they should be paid out of the personalty which he had given away in specific legacies, if it should become necessary to do so. In this view of the ease, we think that we are fully sustained b¿' the decisisn of this Court, in *White*v. Green, 1 Ired. Eq. 45. There the general legacy was given in terms not so strong in favor of a preference over specific legacies as the present. The words were, “I give and bequeath to my wife’s son, William Watson, the sum of five hundred dollars, to be paid to him by my executor out of such moneys as he may think best.” The case came on to be heard upon an appeal from a decree made in the Court below, and Ruskest, *102Chief Justice, in delivering the opinion of this Court, said: “ His Honor held, that the legacies to the nieces, were not at all liable, because they are specific, and do not abate with, or contribute to general legacies. That, we know, is the general rule, but there is an exception to it, within which, we think, this case falls. If a general legacy be expressly charged upon a specific legacy, then, of course, it is payable thereout.— So, if a pecuniary legacy be given, or there be no fund to pay it, or rather, if there never was any fund to pay it, except the specific legacies, owing to the fact .that every thing is given away specifically, the necessary construction is, that the general legacy is to be raised out of the personal estate, although specifically bequeathed. For, it is not to be supposed that the testator meant to mock the legatee; *Sayer*v. *Sayer,*Pre. Ch. 393; Rop. on Legacies 255, 3d Ed.; *White*v. *Beaty,*1 Dev. Eq. 87 and 320. This will descend so minutely into the enumeration of articles, that it is merely to be inferred from the will itself that it disposes of, or *professes to dispose*of, all the property the testator had. But the answers, which are to be taken to be true, remove all doubt. They state that the testator left nothing, and had nothing, at the making of the will, applicable to the payment of this legacy, but such as he has given specifically. He left cash and debts due to him, to the amount of about $100; but he owed a larger sum. This, we think, a sufficient ground of itself, for holding the specific legacies liable, without recurring to the direction to the executors to pay the pecuniary legacy *‘*out of such moneys as he may think fit.’ Those words, however, strengthen the inference of the charge; because ‘ moneys ? could not mean cash in hand, (of which there was only about $20,) but meant cash to be raised by the sale or hiring of *property.”*

These remarks, are in our opinion, almost, if not quite as applicable to the facts of the ease now before ns, as they were to that, in which they were made, and lead irresistibly to the conclusion that the testator, in the present ease, intended to charge, and has effectually charged, the general legacies in *103question upon all the specific legacies, so all that the latter are to be taken for the payment of the testator’s debts before the former can be touched. The specific legacies to the widow, herself, will be taken, or, if all are not wanted, will abate *pro*rata, with the others.

We have examined the cases of *Everett*v. *Lane, 2*Ired. Eq. 518, and *Shaw*v. McBride, 3 Jones’ Eq. 173, to which our attention has been called by the counsel for the defendants, and do not find any thing in them inconsistent with the principles which we think lead to the conclusion at which we have arrived.

The personal property which the testator had given away in his life-time, and which did not need the aid of his will to pass the title to it, cannot be taken, because such gifts are not legacies of any kind.

The questions on which we have declared our opinion, are the only ones which have been argued before us, and we presume the parties may now frame a decree which will put an end to their litigation.

MaNly, J., concurred in the above opinion.

PeaRsoN, C. J.,

*dissentiente.*The large fund not specifically bequeathed, consisting of perishable property, crops, &c., debts due testator and certain slaves, turns out not to be sufficient to pay the debts and general pecuniary legacies.

The question is, what is to be done in this unexpected state of things?

It is clear the specific legacies must abate in order to pay the debts; but must a further abatement be made to pay the general pecuniary legacies in full? orto con tribute *pro rata,*so as'to divide the loss? Or are the pecuniary legacies to fail because of this want of funds ?

The general rule is admitted to be, that specific legacies do not abate in favor of general pecuniary legacies, unless there is something in the will to show an intention on the part of the testator to give a preference to the latter. The rule is founded on this reason : a specific legacy is a perfected gift, Blade by the testator himself, who points out the identical *104subject of the gift, whereas, a general pecuniary legacy is only a direction to the executor to pay a certain amount pi’ovi-ded he has funds in his hands.

I do not find any ground in this case for making an exception to the general rule. 1. It is a correct principle ; that if' one makes specific bequests of *all of his*estate, and also makes a general pecuniary legacy, it will be implied that it was his intention to subject the specific legacies to the payment of the pecuniary legacy, “ for otherwise, he would mock the legatee *Sayer*v. Sayer, Pre. Chan. 393. “ Suppose one possessing a personal estate at B and C only, bequeath it specifically to D and E, and then gives a legacy to F generally, the personal estate at B and O wdll be liable to the payment of this legacy, *as there never was any other fund out of which the legacy to B, could have been*satisfied1 Roper 418; Toller on Executors 226.

The difficulty seems to be in making the application of the principle, which no doubt arises from the fact that it alwaj's appears to be a “ hard case ” that a legatee should lose the bounty which he expected, and which was intended for him. There is no doubt that every testator intends and expects that all the legatees will get what he gives them, and when an unexpected state of things arises, so that some must be disappointed, it is considered hard that one, to w’hom a small *money*legacy is given, say $500, should lose it all, and one to whom a specific legacy of the value of many thousands is given, should get all of it, which is ordinarily the case. But reverse the position, shall one, to whom a small specific legacy is given, say a watch or riding horse, be obliged to give it up for the benefit of one to wrhom a legacy of $10,000 is given, and then the supposed hardship is put on the other side. This is the mode to test the principle and avoid the danger of a misapplication.

No one can read the case of *White*v. Beaty, as at first decided, 1 Dev. Eq. 87, without being satisfied that the Court were led into a misapplication of the principle, because of the supposed hardship. Indeed, when the case was again *105brought before the Court, eighteen months afterwards. 1 Dev. Eq. 320, the former decree is reversed, and Judge HeNdbesoh, ter showing that the principle only applies where the testator gives away *the whole of his estate in specific*legacies, and then gives a pecuniary legacy, and that it does not apply when there is *a/ny portion*of the estate not given away in specific legacies, although such portion may be lost or wasted by the-.executor, or consumed *in the payment of*debts, concludes by saying the case of *Sayer*v. *Sayer,*does not support the former decision. “The truth is, when the case was before us heretofore, *the*facts were strangely misconceived.”

In *White*v. Green, 1 Ired. Eq. 45, the same principle came up for application; the principle isNcorrectly defined; *Sayer*v. *Sayer*and *White*v. Beaty, are cited, and the Court say “it is nearly to be inferred from the will itself, that it disposes, or professes to dispose of, all the property the testator had'; but the answers remove all doubt; they state that the testator left nothing, and had nothing applicable to the payment of this legacy, but such as he had given specifically.” Whether that is not another instance where the Court, after correctly stating the principle, depart from it in making the applicar tion, by introducing the words *“left nothing, and had nothing applicable to the payment of this*legacy,” may be questioned ; for taking the principle, as defined in that case, and in *White*v. *Beaty*and *Bayer*v. Bayer, it is obviously necessary, in order to make it applicable, that the testator should give away the whole of his estate in specific legacies, for otherwise, the natural inference is, that he was mistaken as to the amount of his debts, which is, by no means, an unusual thing, and there is no necessity for presuming that he intended to charge the specific legacies with the payment of the pecuniary legacies, in order to avoid the inference “that he intended to mock the legatee.” So, in my opinion, the principle does not apply to our case.

2. The words “to be paid by my executors out of my estate,” added to'the legacy of $500, cannot, in my opinion, be allowed the effect of making this case an exception ; because they *106are not sufficiently expressive of an intention to charge the legacy of $500 on the specific legacies. Instead of giving to them the effect of making a charge, I think they are rather to be treated as expletive, or words of surplusage. A testator gives his negro man, “Jacob to A, to be delivered to him by my executorthese words are expletive, and amount to no more .than would be implied; and he gives $500 to B, “to be paid by my executor out of my estate;” these words are expletive, for, as a matter of coarse, if paid at all, it will be paid ont of the estate. Should it, contrary to all expectation, turn out that the balance of the estate is all exhausted in the payment of debts, so as only to leave “Jacob” on hand, it seems to me a strange result that the negro given to A, must be sold in order to pay B, the $500! At the most, it would seem that B could only expect A to divide the loss with him, and yet, if the words amount to a charge, B must be paid the whole $500, although A will thereby, get nothing at all. To justify such a result, surely the intention to create a charge, ought to bo clearly expressed.

*Bray*v. Lamb, 2 Dev. Eq. 372, is relied on to support the position that these words create a charge. The words there, were, “I give Nancy Bray five hundred dollars, to be *raised*and paid out of' my estate.” The case was attended with some peculiar circumstances, which are referred to in support of the conclusion, but the main stress was put on the word “ raised” out of my estate, which word was supposed to be peculiarly appropriate to create a charge; and, it is remarkable that the words “ to be paid ” out of my estate are treated as amounting to nothing, and are not alluded to in the opinion ; so, that which the builders then rejected, as useless, is now to be made tho corner stone!

In the earlier cases cited by Powell on Devises, when land was not liable for the payment of simple contract creditors, the courts seized on almost any words to create a charge in favor of such creditors. “I direct my debts to be paid” out of my estate; or, “I wish all of my just debts to be paid,” were held sufficient to create a charge on land in favor of *107creditors; but, since the law has been changed, such words are treated as mere surplusage, and no meaning is attached to them, and as far as my researches have gone, such an effect never was given to words of this kind in order to create a charge in favor of general pecuniary legatees, at the expense of specific legatees, and in our case, in respect to the other pecuniary legacies to the widow, as she is a specific legatee of a large amount of property, she, as such, will be obliged to contribute to pay her own pecuniary legacies!! Can it be supposed in. the absence of plain -words that such was the intention of the testator ?

Pee Cueiam, Decree according to the opinion of the Court.