#### FREDERICK W. SWANN *and others against*FRANCES M. SWANN *and another.*

*A.*testator may, if he choose, exempt an undisposed of residue from the payment of his debts by throwing that burden on other property specifically willed for that purpose; but in order to do this, his intention must be very clearly manifested.

The general rule is, that intestate property is primarily liable for the payment of debts, even though other property may have been directed by will to be sold for that purpose.

Appeal from an interlocutory order made by Heath, J., at the last Spring Term of Brunswick Superior Court.

John Swann, of Brunswick county, bequeathed, in the 2nd clause of his will, as follows :

*298“ I desire and direct that my plantation and land in Brunswick county, and, also, my cattle and live stock upon my said plantation, and, also, my negroes, Robert, a cooper, and Hannah, shall be sold by my executor, * * * and the proceeds applied, first, to the payment of my debts,”

Clause 8th. “ I direct that after the payment of my debts out of the proceeds of the sales directed in the second clause, my executor shall invest $400, in the purchase of a maid-servant for my daughter, Eanny.”

He then proceeds in the 9th clause to direct the application of $400 more of the proceeds of the sale *after payment of his debts*to be invested in like manner for another daughter, and in the 10th clause he gives to each of four grandchildren a thousand dollars out of the residue of this fund, and then *after the payment of the debts and the said several legacies,*he gives the residue of the said fund to his widow, Frances Swann, who is made one of the defendants in the bill. He also gives to his widow certain lands and a plantation in the counties of Moore and Harnett, and the stock, farming tools, &c., belonging to them, and also gives her other personal property.

It turned out that a large crop of rice was on hand at testator’s death, which was undisposed of by his will, which the defendant, Davis, who administered, with the will annexed, sold for $4800, and this bill is filed by the plaintiffs, as next of kin, against both the widow and the administrator with the will annexed, alleging that the property ordered to be sold for the testator’s debts, was amply sufficient for that purpose, and also to pay the several legacies charged upon it, and that there is no necessity, therefore, of resorting to the proceeds of the rice-crop for the payment of the debts of the estate, and they pray that the same may be paid to them according to the statute of distributions.

The facts of the case are not denied by the answers, but it is insisted that the undisposed of property is first liable to the payment of the debts, and his Honor being of that opinion, in ordering a reference for an account of the estate, directed *299the commissioner to proceed upon that basis; from which order the plaintiffs appealed to this Court.

The Court below reserved the question of interest, with leave for either party to move in the cause concerning the point, as advised ; and, in behalf of the four grand-children, to whom legacies of $1000 each were given, it was moved, in this Court, that the commissioner should be directed to allow interest thereon from the death of the testator.

*London,*for the plaintiffs.

*Strange,*for the defendants.

Battle, J.

It is how, and has been for a long time well settled, both in England and in this country, that the primary fund for the payment of the debts of a testator is the personal effects, of which he has made no disposition in his will, and that this rule is not varied by the fact, that he has expressly directed other property, real and personal, to be sold and applied to the payment of his debts; *Roberts*v. *Wortham,*2 Dev. Eq. 173; *Palmer*v. *Armstrong,*Ibid. 268; *Dickens*v. *Cotton,*2 Dev. and Bat. Eq. 272; *Graham*v. *Little, 5*Ire. Eq. 407; *Kirkpatrick*v. *Rogers,*7 Ire. Eq. 44. This is admitted by the counsel on both sides, but the counsel for the plaintiffs, contends that the testator has the right to appropriate what part of his estate he pleases to the payment of his debts, to the entire exoneration of every other part, and that he has, in the case now before us, set apart for that purpose, the property which he lias directed to be sold by the second clause of his will, and that, consequently, the proceeds of the crop of rice, of which he has made no disposition, must be equally divided amongst his next of ldn. It is not denied that a testator may, if he choose, exempt an undisposed of residue from the payment of his debts, by throwing that burden upon other property specifically devised and bequeathed for that purpose, but in order to do this, his intention must be very clearly manifested by the terms which he uses. A testator very rarely intends to die intestate as to any part of his estate, and a devise or bequest for the payment of debts, is, *300in most cases, as consistent with the idea that it was intended to be in aid of the residuum undisposed of, as in exoneration of it. In the case of *Palmer*v. *Armstrong,*to which reference has been made, the Court say, that “ 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.”

These remarks are directly applicable to the present case, and are decisive of it. The direction given by the testatoi’, that the proceeds of the sale of his Brunswick plantation, and of the articles of personal property, mentioned in the second clause, should be “ applied first to the payment of his debts,” and then to be disposed of to certain legatees, has precisely the same signification as if he had said, that they should be so disposed of “ after the payment of his debts.” In neither form of expression is the idea involved that personal chattels* not bequeathed to any person should be exonerated from their appropriate burden of paying debts, while each form of words manifests clearly the intention, that all the other legatees should be exonerated from that burden. Our opinion is, that the decree rendered in the Court below, in accordance with the principles herein declared, is correct, and must be affirmed. Upon the question, whether interest is to be allowed upon the general pecuniary legacies to the grand-children from the death of the testator, our opinion is that, as it is not shown that he stood towards them in the relation of parent, the general rule applies, and interest is pajmble only from the end of one year after the death of the testator. See *Harrell*v. *Davenport,*decided at the last term, and reported *ante*4.

Per Curiam, Deci’ee below affirmed.