#### W. H. KNIGHT, *Ex'r against*F. H. KNIGHT AND WIFE AND OTHERS.

Where a testator gave property, real and personal specifically, and then devised and bequeathed all the “ balance of his estate ” to certain parties in general terms, and after making his will, the testator acquired property, real and personal, it was *held*that this after-acquired property fell into the residuum bequeathed generally, and that upon a deficiency of funds provided for the payment of debts, the after-acquired personalty was first liable.

Personalty in the hands of an executor or administrator, whether bequeathed specifically or otherwise, is first liable to the payment of debts, unless specifically exempted, and the real estate belonging to iho deceased, whether descended or devised, is not liable until the former is exhausted.

Cause removed from the Court of Equity or Edgecombe county.

The plaintiff in this suit, is the executor of the last will and testament of Jesse C. Knight, and the bill is hied *to*obtain from the Court a construction of the said will. In the ninth clause of the will, the testator bequeaths and devises as follows:

*“*Item ninth. All the balance of my estate and effects, with all money or monies due, I wish to be disposed of according to items third, fourth, fifth and sixth, except such perishable effects as he shall deem best to sell, which he shall sell on a credit of six months with interest; and after paying all my debts and expenses of administration, the balance of the proceeds shall be distributed by the several items.”

By the third item of the will, the testator gave to W. H. Knight certain lands and personal property on certain conditions and limitations. By item fourth, he gave propoerty, real and personal, to Sally Knight, on certain limitations. By item fifth, he gave property to *W.*H. Knight for the sole and separate use of Martha A. Lawrence, wife of A. B. Lawrence. By item 6th, he devised and bequeathed property to Susan, wife of A. B. Nobles.

After the making of the will, the testator acquired several *135tracts of land, and also a considerable amount of personal property.

The plaintiff shows from an account filed, that the notes and proceeds of the perishable property will be insufficient to pay the debts of the testator, leaving after these are exhausted, debts to the amount of $11,315.54, to meet which deficiency, some of the legacies will have to abate. It is for the purpose of obtaining the direction of the Court as to which of the legacies shall abate, that this bill is filed. '

The cause being set for hearing upon the bill and answer, was sent to this Court by consent.

*Bridgers*and *Bodma/n,*for the plaintiff.

No counsel appeared for the plaintiff in this Court.

MaNly, J.

Upon a consideration of the contents of the will of Jesse C. Bmight, we are of opinion in the first place, that the property acquired subsequently to the making of the will, falls .into the residuum spoken of in the ninth clause. According to the provisions of the statute of 1844 concerning wills, embodied in the Eev. Code, ch. 119, sec. 6, a will in reference to the i*eal and personal estate comprised in it, speaks and takes effect as if it had been immediately executed before the death of the testator, unless a contrary intention appear from the will. As nothing appeal's to rebut this legal construction, its effect, in the case before us, is to throw the after-acquired lands as well as personalty into the residuum.

In the second place, we are of opinion that the *personalty*of the residuum is the fund primarily liable to the payment of debts; It is in all respects a true residuary fund not specifically bequeathed, but disposed of in general terms to a class of legatees.

It appears from a summary statement of the executor, that the aggregate amount of unpaid demands against the estate, is $11,315.54.

We take it for granted the residue of personalty will not be sufficient to satisfy this amount, and have considered the will *136with reference to the fund next liable, and conclude in the third place, that the legacies of personalty must abate. These legacies all appear to be specific, and they must, therefore, abate rateably.

Since the statute of 1846, Rev. Code, ch. 46, sec. 44, the personalty in the hands of an executor or administrator, whether it be bequeathed specifically or otherwise, is first liable to the payment of debts, unless specifically exempted; and the real estate belonging to the deceased, no matter in what condition it is found, whether descended or devised, is not liable until the former is exhausted; *Graham*v. *Little,*5 Ired. Eq. 407.

By operation of the wills act of 1846, the lands acquired by Jesse C. Knight subsequently to the making of his will, pass under the residuary clause. The distinction in this respect, between real and personal property, theretofore existing, is thus abolished; and both pass alike under a bequest of the residue. What would have been the effect of this without our act of 1844, prescribing the order in whicl^ real and personal property shall stand in their liability to pay debts, it is unnecessary to enquire. By that act, personalty is put in the front, and we accordingly hold that the specific legacies of personalty must abate.

Per, Cubiak, Decree accordingly.