#### HUGH KIRKPATRICK *vs.*SAMUEL W. ROGERS.

•A testatrix, in one clause of her will, devised as follows: “I will that ail the balance of my property, not herein disposed of, be sold by my executors, and, after my debts paid, the proceeds of the sale to be divided into three divisions, one to A., one to B., and the third to be held by my executors for my negroes,’' *&e.*By another clause, she had directed her negroes to be emancipated ; and it had been decided that the negroes and the fund given to them did *not pass by the*will, but fell into the residue; it was now held, that these negroes and the properly bequeathed to them 1 constituted the primary fund for the payment of debts.

It is the general rule, that independent of any intention of the testator, and without any particular charge on it, the law throws the burthen of paying the debts on properly, as to which there is an intestacy, unless there be an exception of it, or a charge of the debts, §-c., be fixed, by plain words or implication, on other property exclusively.

A mere charge of debts on a particular part of the estate will not exonerata a fund, on which there is a prior liability ; for the charge may as well bo taken, as making thatfund auxiliary, as intending to placeit in front.

There must be something to change the order, in which, the law says, the different parts of the estate are applicable, when the testator does not direct otherwise.

The cases of *While*v. Green, 2 Dev. Eq, 35, *Wortham*v. *Robarás,*2 Dev. Eq. 173, *Fraser*v. *Alexander,*2 Dev. Eq.318, and *Dickson*v. *Cotton,*2 Dev. ¿i- Bat. Eq 272, cited and approved.

Cause removed from the Court of Equity of Mecklen-burg County, at tltc Spring Term 1S50.

The bill is to obtain a construction of the will of Anna Boyce. After the cause between these parties was heard •in August 1349, G Ire-Eq. 130, a question arose between the executor and the residuary legatees and next of kin, out.of what funds the debts of the testatrix and the charges *45of the administration are payable. The will, in the sixth clause gives a certain fund to the slaves of the testator, and then in the eighth clause proceeds thus : “I will that all the balance of my property, not herein disposed of, be sold by my executors, and, after my debts paid, the proceeds of the sale to be divided into three divisions. One third to go to the use of the associated reformed church at Sardis; one third to be equally divided among my brothers and sisters’ children : the remaining third of the proceeds of sale, to be held by my executor for my ne-groes,” &c. When the cause was formerly before the Court, it was held, that the slaves and the funds given to them in the sixth and residuary clauses did not pass by the will; and the executor, considering that they constituted the proper fund for the payment of debts and charges, as being a surplus not disposed of, was proceeding to administer the estate on that principle, when he was forbidden by the next of kin, who insisted that the same was payable out of the residue given in the eighth clause; and thereon the executor now prays directions.

*Osborne*and *Wilson,*for the plaintiff.

*Johnson*and *Thompson,*for the defendants.

Ruffin, C. J.

The Court is of opinion, that the undis-posed of surplus is liable in the first instance for the debts and expenses It is the general rule, that, without any-particular charge on it, and independent of any intention, of a testator, the law throws the burden on property, as to which there is an istestacy, unless there be an exception of it, or a charge of the debts, &c„, be fixed, by plain words or implication, on other property exclusively.— *White*v. *Green,*2 Dev. Eq. 45. There is no direct exemption,of this surplus ; and the only question is, whether there is such a charge on the residue given in the will, as fixes that with the burden exclusively and-exonerates.the *46surplus. A mere charge of debts on a particular part-of the estate will not exonerate a fund, on which there is a prior liability ; for the charge may as well be taken, as making that fund auxiliary, as intending to place it in front. There must be something to change the order, in which, the law says, the different parts are applicable, when the testator does not direct otherwise. *Wortham*v. *Robards, 2*Dev. Eq. 173. A direction to sell the resi due, and then, that the money thence arising should be disposed of as follows, viz : All my just debts be paid ; and then to A. and B. $50 eaeh, and all the balance lo C. was held in *Fraser*v. *Alexander, 2*Dev. Eq. 348, to be a precise division and appropriation of that fund to those purposes, and that, as C. was only to have the balance of the “money thence arising,” he eoulct only get what remained of that fund, after the other purposes had been answered out of it. But there is no such precise direction in this case, nor any thing more than simply a recognition of the charge of the debts, imposed by law on the residue of her estate, which she knows and says must be paid before the donees of the residue can have it.— There is no declaration, that the debts are to be paid, at all events, out of the residue thus given, but a charge merely, which expresses no more than the law would, had the will contained not a word on the subject. Upon such a case, besides the authorities already cited, *Dickson*v. Cotton, 2 Dev. & Bat. Eq. *292,*is directly in point, that the other parts of the estate, thus charged, are not liable, but upon a deficiency of an undisposed surplus. A declaration must be made accordingly; and the executor will pay the costs of this suit also out of this fund, which will be allowed in his accounts.

Per Curiam. Declared accordingly.