#### Nathaniel J. Palmer *et ux et al.*v. Thomas Armstrong and Willie Shaw.

A testator gave land and goods to his executors to be sold, “ and after payment of all my just debts, the residue of the monies arising from them to,’ &c. The words, “ after payment,” &c. subject the land in exoneration of other legacies, but not in favor of the next of kin.

The plaintiffs claimed under the following clause in the will of *James Lapslie:*“X give and bequeath to my *“*executors, hereinafter named, my tract of pineyland *“*on the head waters of Enoe and Back creek, to be *“*sold, together with my stock of every description, and *“*after the payment of all my just debts, the residue of the monies arising from the sale, to my said two supposed *“*daughters, (plaintiffs,) to be laid out in their education *“*and support/’ &c. There was no residuary clause in the will.

The defendants were the executors of the testator, and the only question presented to this court was, whether the property given in the clause of the will above set forth, was charged absolutely with the payment of the testator’s debts, so as to exempt the residue, or whether it was charged upon the failure of the residue, so as to exonerate other legacies.

From the accounts taken in the cause, it appeared that if the residue was charged before the property bequeathed to the plaintiffs, they were entitled to *$*853 66, being the amount for which the land and stock *sold;*but if the property devised in the clause of the will above cited, was primarily chargeable with the debts of the testator, then the plaintiffs were entitled to nothing.

His Honor Judge Strange, at Orange, on the last Spring Circuit, dismissed the bill and the plaintiffs appealed.

*Nash*and *W. Jl. Graham,*for the plaintiffs,

cited *In-chequin*v. *French,*(1 Corn’s *Cases*1.) *dneasterv Mayer,*(1 *Bro, C.*/A 454.) *French v. Chichester,*(2 *Bro. P.*0.192.) *JOoxvnc*v. Lewis, (2 *Bro.*0.257.) *Gray*v. *Minnelhorpe,*(3 *269*Ves.*10G.) *Tait v. Lord Northwick, (4 lb.*816.) *McLel-land v. Shaw,*(2 *S.*& *L*528.) *Livingston*v. *Newkirk,*(3 *John. C. 11.*319.) *Bootle*v. *Blundell," Merv.*215.) *Iínnter*v. *Bryan,*(2 *Wheaton at page*41.) ..

The case *of' Jio-{ante page*173,) aPProvo‘t

The rule exempt, mg lands charged with the payment of debts, until the Personal e!3tate IS *270exhausted, is not founded upon the notion of the testator’s providing a fund not otherwise chargeable; but upon his presumed intent that his gift shall not fail while there is a surplus not given away.

*269They contended that the whole question : was one of intention, and that the rules to ascertain it were the same here as in England, and for this was cited the *St.*5 *Gear.*2d, act of 1784, *{Ilev. c.*226.) *Miller V. Harwell,*(3 *Murp.*194.)

*Winston,*foi* the defendant,

contended, that the direction of the testator was a conversion out and out, and that the questions as to the priority of the fund liable to pay debts, did not arise; this being a mere pecuniary legacy charged with the payment of debts, he cited *Mal-la!) ar v.Mallabar,{Gases Tcmp.Talb.*78.) *Rogers v.Rogers, (lb.*268.) *Bar our*v. *Mottcnx,*(1 *Ves.*S20.)

Rustin', Judge

Most of the questions argued in this cause were considered and determined a year ago, in *Bobards v. Wortham.*There the'residue of the personalty was undisposed of, and there was a devise of land to bo sold by the executor for the payment of debts, and the surplus of the proceeds given over. It was held, that although both were liable before land descended, the formar was liable to creditors before the latter.

The present discussion has not produced a doubt of the correctness of that opinion. It is admitted at the bar, that it conforms to the rule in England *;*but it is insisted that our law, which subjects land to all debts, has altered it here. The idea is that the testator is under no necessity in point of honesty, to provide a fund for creditors, since the law has effectually done that for him already; and therefore, that there can be no motive for his charging a particular part of his land with the payment of debts, but to fix that change conclusively upon it, in ease of all other parts of his estate. But this reasoning applies equally in England to a .rase of debts by specialty, as between tbe devisee and heir. Yet *J 1 **nothing is more certain than that the latter pays those debts before the former, although the land devised he *270ever so anxiously and expressly charged. The rule then is not founded on the reason supposed *;*but upon the notion of an intention in the testator, that his gift shall not he defeated as long as there is a sufficiency of estate not given to any body, to satisfy all demands against him. Besides that suggested, there are many other motives, applicable as well to this country as England, for making such a charge. It may be to discriminate between the liabilities of different devisees and not between them, or either of them and the heir. So it may be to prescribe the order of payment as between the land made liable to the debts, and specific legacies, and not as between either of them and the next of kin. And this is as strong here in relation to simple contracts as it is in England in reference to bond debts *;*for with us simple contracts cannot reach the land until all the personalty has been exhausted, as well that given specifically, as the residue bequeathed, and the surplus undisposed of. The land may then be charged for the purpose of exonerating and in a manner to exonerate particular parts of the personal legacies, and for that purpose alone, not to exonerate the whole personalty. It is in fine a question of intention, and we cannot here, more than in England, infer from the charging of one fund, an intention to ease another, liable by law before it.

Or to distinguish between different devisees, and not between them & the heir, or next of kin.

This however is stated not to be a case of a charge upon land, as such; but a case of conversion of the whole into personalty. Such I take it to be; and perhaps for that reason it is different from *Robards*v. *Wortham,*as discussed. Although the defendant was there both heir and next of kin, no question was made by him upon the undisposed surplus. He gave that up and contended only for the exoneration of the realty descended. Nor did itocurto the court, that there could be a doubt about it. For that reason it was not accurately consider* ed, whether there was to be a sale at all events or only in case it was necessary for the payment of debts, nor the ef-ect, in the one case or the other, upon the resid ue of the personalty, It was not material in the determination of the point madeby the defendant as heir ; for if it be admitted, *271as I suppose it must be, that where the principal intent of a sale of the land is to provide for the payment of debts, and upon the supposition that the purpose expressed will require a sale to be in fact made, the surplus is given over as money, and not as land — if, I say, in such case it be admitted, that the purposes of the sale shew that it was not absolutely to be made, and create a trust in the nature of a charge for creditors, which the donee of the surplus may elect to satisfy by paying the debts, and thereupon call for a conveyance of the land ; yet that is between the executor and trustee, on one side, and the donee of the surplus on the other. It would not alter the order of liability intended by the testator. And the devise *to sell for payment of debts,*although that was the *only*purpose of the sale, denoted the intention as much as a sale out and out would, that as between the devisee-ami the heir, the land devised should be first liable. And the only question made there was between those parties.

The rule is die same when there out and out, and the residue given

A pecuniary le-l^debt^of^he testator, is to be qmrfrapsed outot the residuum, as well when that is 1TMdlsP“se'l of, as away,

Here there is a conversion out and out. There is to be a sale at all events, and not for the sole purpose of paying debts. T. he legatees ai*c infant children, who could not elect, and who needed a provision for maintenance and education. The testator lias elected for them and chooses to provide money, the mingled proceeds of land and perishable stock.

Taking it then to be a general pecuniary legacy, I do not perceive that it will make any difference. The question is between a pecuniary legatee and the next of kin. It is of the same nature with that before stated between the devisee of land and the heirs; only, stronger against the distributee, who is not so great a favorite as the heir. The rule is general, that legatees of all sorts are to be satisfied before the next of kin. Debts and legacies must be satisfied before there can be a residue. The remainder after paying all, is what constitutes the surplus. The *hceres nalus*must yield to the *hceres factus;*because the testator meant effectually to give a part of his property, as he had a right to do. He who claims by law, and not by gift, must take subject to the law and all its incumbrances, unless the testator positively and *272expressly direr.ts otherwise. He to whom a thing is given subject to a charge, must boar it as against one to whom another thing is given clear of charge ; but not as agajns£ ]|jm to whom nothing is given, anil who succeeds, by law, and without any intention of the testator, to what is by law also subject to the same charge, and subject in the first instance. The legatee can indeed only have what is given to him ; and if this legacy can be said to be a gift of the balance of the proceeds of the land and stock, after paying all debts *out of those proceeds,*then the argument for the defendant would be good. As if a particular thing be given to A, lie paying ¿6100 to B. or to my executor; or estate, or the like; then the question is, what is given, or on what condition. But that is very different from the enquiry, in what order is a general charge to be borne by different parts of the estate. Charging a particular debt on a legacy, specific or general, will attach it to that legacy in the same manner as if it be expressly given, *minus*so much. But these words “ after payment of debts” generally, do not mean that this legacy, and *this*alone. should answer creditors. It. so means as against other legatees ; but not as against other personalty not disposed of. The testator intended to provide for his legatees; and not for his next of kin *;*and the latter can claim only upon the score of intestacy, in which case, the debts must be paid before a distribution, unless the testator has expressly ordered otherwise. The words do not cut down the legacy, bul only charge it. Suppose a testator says in the beginning of his will, “ after payment of my debts, I give,” &c.j and then proceeds to devise lands, and also bequeath personal legacies, specific and pecuniary, and Hie- residue generally. Such words doubtless charge the lands devised, but not in exoneration of lands descended nor equally with the legacies, of either kind. There is no partial exoneration of the personal estate by the real, and as to the personalty, the order of liability amongst the different parts of it is not at all affected ; because as to that, the words mean nothing, since every part of it was liable to debts before. Pecuniary legacies would still be subject *273before specific, asid the residue bequeathed,' before either; for the words *“*after payment of debts,” go also to it, and disposing of it as a general residue shews that it was to be first applied, because *ex vi*termini, residue, generally means what remains after debts arc paid. Much more is this tiie case, when the surplus is undisposed of. The argument is the same, when those words “ after payment of debts,” arc applied to a general pecuniary legacy, in reference to the order of liability between that, and the residue or surplus. They subject that legacy before others of the *like kind;*but not before legacies liable in law before it, without theiatter be expressly or clearly exonerated, or the charge on the first be in terms that make it exclusive of all others. It is a question of intention, and leaving a residue as. a residue, proves the moaning to be, that it should pay in the first instance; much more where it is not given at all; for then there is nothing to shew the testator meant, that the law should not take its course in the administration of bis assets. Consequently, I conceive the undisposed surplus is to be first applied in satisfaction of the debts,, and as there is a sufficiency of that for that purpose, the petitioners are entitled to the whole proceeds of the land and stock.

Per Curiam. — Decree reversed.