#### JOHN A. GRAVES, Administrator, *against*CATHARINE HOWARD *and others.*

*‘*Tire residue of a testator’s estate and effects/ means what is loft after all liabilities are discharged and all the purposes of the testator are carried into effect.

Where there is a fund common to *loth*of two charges, and a fund subject only to *one*of them, this separate fund must be applied in aid of the common fund.

Cause removed from the Court of Equity of Caswell county.

The bill was filed by the administrator with the will annexed of Elijah Graves, praying the advice of the Court as to his duty in the payment of the debts and legacies. The parts of the will material to the questions propounded, are as follows :■

“To the children of my deceased sister Elizabeth Kimbrough, who may be living at my death, I give the sum of twelve hundred dollars. v

“In like manner, I give to the children of my deceased brother Thomas Graves, who may be living at my death, twelve hundred dollars, to be equally divided between them,

“To my sister Catharine Howard, I give'the like sum of twelve hundred dollars, if she be living at my death. If she dies before I do, or is now dead, then I give tire sum to her children, who may be living when I die, to be equally divided between them.

“ To the children of my deceased brother "William Graves, who may be living at my death, I give the like sum of twelve hundred dollars, to be equally divided between them. The share of Elijah Graves, the younger, however, to be held by my personal representative in trust, for the sole and separate use of his wife and children, so long as he lives, and then to be paid over to his wife and children in equal shares.

“I give to the children of my deceased sister, Delilah Miles, who may be living at my death, twelve hundred dollars, to be equally divided between them.

“ I give to my nephew Nap oleon Elij ah Graves, my undivided *303half of the tract of land, near Milton, in Caswell county, known as the Milton race tract.

*“*I give to my friend Major L. Craves, of Georgia, the sum of three hundred dollars.

*“*My will is that my land shall be divided as follows:

(Setting out the metes and bounds).

“ The lower tract of land aforesaid, I direct to be sold by my personal representative, upon such credit as he may deem expedient.

“ To the living children of my sister Nancy Taney, I give twelve hundred dollars, to be equally divided between them; the share of Yirginia, the wife of George *W.*Swepson, is to be paid over to and held by Giles Mebane, in trust for the sole and separate use of Yirginia Swepson aforesaid, so long as she lives, and after her death, if she dies without a living child, to be equally divided among her surviving sisters.

*“*My will is that all my slaves shall be equally divided among those of my brothers’ and sisters’ children who may be living in Caswell county at the time of my death, and if there shall not be property enough away from the sale of land, and property of a perishable nature, belonging to my estate, (and such land only as I have directed to be sold), to make the children aforesaid, living out of the county of Caswell, equal, in reference to the division of slaves, with those living in the county, then I direct that the children to whom I give the- slaves aforesaid, shall pay to those living out of the county such sum- of money as will be sufficient, together with what may arise from the sale of property aforesaid, to equalise them all in the distribution of the slaves; but I direct that the share of Elijah Graves, jr., shall be delivered to and be held by Abisha Slade in trust, as aforesaid, for the sole and separate use of the wife of the said Elijah, and her children, so long as he lives, and then to be equally divided between his said wife and children. * * All the residue of my estate and effects, I give to the four youngest daughters of my deceased brother William Graves, namely, Isabella Dodson, Fanny Tuberville, Cornelia Tuberville and Yirginia Graves.”

*304The first question submitted in the bill, is whether Mrs. Swepson’s share shall be assigned to her in slaves, or shall be made up in money. It is insisted by some of the legatees that, because Giles Mebane, to whom the legal interest in the legacy is conveyed, is not a citizen of Caswell county, but lives in Alamance county, she is not entitled to a share of the slaves in kind.

Secondly. The bill alleges that the administrator has sold the land and perishable property set apart for sale, and that the fund thus arising, added to the money on hand, and that arising from debts due the estate, and other sources, is insufficient to pay the pecuniary legacies and debts, and to equalise the division of the slaves between the two classes of legatees. He says that there is nothing falling into the residuum except the houses'and lots in Yancyville. He asks the Court to instruct him how to proceed in this case: whether the pecuniary legacies shall abate, or shall he sell property to pay the whole, and if the latter, what propertyis he to sell ? Shall he, in the latter alternative, sell’slaves, or apply the money raised by selling the houses and lots falling into the residuum ?

The plaintiff also asks the Court to “ advise him *upon the*construction of the will generally.”

The several legatees interested in these questions, were made defendants, and filed answers, admitting the facts, but insisting on different views of the rules governing the case, according to their several interests.

Cause set for hearing on the bill, answers and exhibit, and transmitted to this Court by consent.

No counsel appeared for the plaintiff.

*Hill*and *Huffin,*for the defendants.

PeaksoN, J.

1. Virginia Swepson is entitled to a *sha/re of the simes.*She was living in the “ county of Caswell.” The circumstance that Mebane, in whom the *legal*title vested, lived out of the county, does not affect the legacy. She is the *305
      *beneficial owner.*Indeed, the will speaks of her share in the slaves. This removes all doubt.

2. The residue of “ the testator’s estate and effects,” means what is left after all liabilities are discharged and all the purposes of the testator are carried into effect. Consequently, the lots and houses in Yancyville must be sold, if, upon taking an account, it is found necessary to sell any property other than that directed to be sold.

The fund for equalising the distribution of the slaves, is the money arising from the sale of the land and property of a perishable nature, with this restriction, *such land only as I have directed to be sold.*There is, then, a further provision by which the children who get slaves are to contribute for equality of partition. This is a charge on the slaves as a *dernier resort.*

The fund for the payment of debts and pecuniary legacies, is the same with this addition, *it also extends*to the houses and lots in Yancyville, which are not specifically disposed of. This presents a questipn of “ marshalling.” There is a fund common *to*both, and a fund subject only to *one charge.*Upon a well-settled principle of equity, this separate fund must be applied in aid of the common fund; that is, the lots and houses must be applied to the payment of debts and pecuniary legacies, so that the common fund may, if possible, be made to cover both charges before the ultimate resort is made to the slaves for contribution.

3. The advice asked upon the construction of the will generally, is too vague and indefinite.

There will be a decree in pursuance of this opinion. The costs will be paid out of the estate.

Pkb CcbiaM, Decree accordingly.