#### Abner Nash *v.*Administrators of Abner Nash.

A devise *o the Plaintiff of cash sufficient in the opinion of the executors not exceeding JE’OOO to purchase a tract of land ; in a following clause, the following devise, “ 1 give to my wile nil the ne-groes I obtained in marriag • with her, and their increase, also wit- • bird of stock, &c and the residue, I give to my children by my present wife.” The estate is t shaunted except the negroes contained in the residuary clause *o the wife and children, and debts to a large amount remain unpaid. Plaintiff cairns his *£ 101)0.*Decided that the Plaintiff’s legacy is g. neral, hut still emití-d to lie paid out of the residuary part devised to the wife and children, which, as a residuum cn never he specific: — that the children’s part is to be first applied, as the wife’s port, though gei.e.al and residuary as to the Plaintiff, is s.iecifie, i.> ivier-oicc theirs; — th.;t as the testator, in mentioning the sum of ,£1000 for the Plaintiff, contemplated a full enjoytm nt !>y tire. |. gatee.-, of their respective legacies of slaves ; theiefmv, under the discretionary power given to the executor» of living the amount to he paid to the Plaintiff, his ijgaey snail be abated, from £ iuOO in proportion to the value oflhe negroes that shall he required to pay the debts.

In this case, (here was a devise to (he Plaintiff, amongst other things, of cash sufficient in the opinion . f the executors, not exceeding one thousand pounds, to psH vlihse a tract of land on Tar river. In cnb.wqueiit clause. *262^fífr giving severa! legacies to his children by bis first vjce ¡!e all t!to n-s! of ray estafe, Í give -mk! be-que, afh «s foil iv.s : “ Í give and bequeath to my beloved wife, all 'he neg¡ oes I obtained by marriage with her. and their increase ; also ow-tbit d of all my jdantatioii stock, household and kitchen iurniture And the residue Í give at d bequeath to my children by ray present wife,” &r. &c. Tira whole of the estate, except a part of the fui-uitin4, and the negroes comprehended in the residue to tlie wife and younger children, is exhausted j and there yet remains debts to be p«id. to the amount of four thousand pounds and upwards. The Pb.int.iff claims his thousand pounds legacy. This case was now argued by *Taylor*for the Plaintiff, and *Davie*for the Defendant — their arguments are shortly adverted to and stated in the following opinion. After the argument, the court, composed ofWiiiuMs and Haywood, took time to advise, saying the judgment of the court, when they had formed their opinion, should be entered as of this term — howe'er the judgment was not entered til! the next term. At which time, by file consent of the attornies on both sides, it was entered according to the Opinion of Judge Haywood — . Juege-STONK assenting.

Judge Haywood — This legacy to the PbintifF, is a money legacy, notwithstanding 1 *P.Wil.*IS7, for being a bequest of money, if it be not a sperafic legacy, it must of consequence stand in the rank of a pecuniary one. A legacy of money is specific only in such cases where the money is identified and distinguished from all other money; as money in such a bag, or in such a bond, or to he paid om of such a security, or in such hands 1 *Mk.*508. But if is not a lost legacy, as contended for by (he Defendant’s counsel; for it is not made payable out of m y particular fund. Had it been, and the fund had failed, it would have been lost as fie contended. 2 *Brown Chan.*¡25. Here, it is not said out of what part of the estate it shall he paid, and of course by the rule of b»\v, mu«t be pain out of the residuary part. 2 *Ves.*563. I *Mk.*414, 418. 1 *P. Wil.*404.

The residue meniioned in this will, js argued to be specific ; as negroes are the subject of it, and they will pas- by the assent of ;he executor. 1 *P. Wil.*540.— "Whet.- the ’etraev is specific, it will pass by the assent of flie executor; but every legacy which will pass by *263¿lio assent of the executor, is nut therefore. specific. The residuo ¡o *)lr: Nash*in this case, was of neeeoes; but it is "oi «(leeiiic — there is no case in the, hocks win re a residuum hathbeen held to be a specific *legacy*— ,< residuum is t'-e gleanings of afi estate remaining after debts ami legacies p.tid. 2 Si, *Com.*514. 1 *Mk.*418. 3 *P. Jgil.*385. 2 *Fes.*563. 1 *P. fVil.’*iOt. in each of these cas'.s, it is admitted on all hands, that if the legacy was specific, it was lost; but if a legacy of quantity only, it was to be made good out <>f the residuum. The rest of my estate cannot, in the nature of things, be a specific legacy, exempted li'om any dependence on die other legaeies preceding tt. It is a reiathe tern» — Us quantity, and even its existence, depends entirely upon the pm ious raising of the p>rticuiar legacies. There can be no residue, if títere be not estate enough to discharge the tmrticula- legacies. to which it relates, its quantity must depend upon the quantity of the particular legad, s to be raised out of toe testator’s estate. It diminishes or increase', in prop»! lion to the largeness or smallness of the particular legacies which must first be taken from the net estate; and the question about contribution never arises, bu' wit»re what was to form the residuum is exhausted, 2 *Ves.*562. Whilst there remains a.,y of the estate uhirh for ms the residuum, it is liable to be resorted to by the parficu! ir legatees, unless their lega-cíes are spec,tic. or out of a particular fund. It is argued by the D-aendant’s counsel, that as this legacy claimed by the Plaintilf, is a pecuniary one, and the residue specific, that the residm- shall riot come into contribution with it. It is said on the odter side, that this legacy claimed by the Plaintiff is a specific one; because to be laid out in land ; and tuai money to be laid out in land, shall be taken as land; and that a devise of land is specific, fi is so — but the aigume.nt is fallacious. It proceeds upon this rule, of Equity, that what ought5to have been done, is con. idem! as being done. The rule is here misapplied,and the whole, doctrine built upon it. This rule is neter applied in a dispute between a residuary and particular iega'ee ; but always between the neir, and jiersonal represen active of the particular legatee— 'The heir claims the money, though not. yet laid out in land, as laud; and founds bis Equity upon this, tout the delay of the executor or trustee to iay it out in land, as *264¡¡o ought to have (bine., shall «either prejudice. him, fi0E' benefit the personal representative. Here the court will say what the executor ought to have done previous to he death of the legatee,, shall be considered as having been done — by force, of vt hlcit fiction, the money wil* now go into the same bauds, as the laud to he po* chased with it would ¡save done; and thus no one will be injured by the delay of the trustee. The misapplication of this rule, caused the to ¡stake in *F. Wil.*127, noticed in 5 *P. Wil.*539. and would occasion the same mistake now, v/eie it not attend* d to. This is tin* only point established by the cases cited for the Plaintiff, *viz:*1 *F. WiL*127. 1 *Vem.*52, 471. *& Vern.*5.56, 583,' 679. I *F. Till.*172. 3 *Mk.*254. 3 *P. Wil. 91 j,*but there is no dispute in die present case, between tin* heirs and personal lepsesentatives of tin* b-gatee, and therefore all those authorities are to be laid out of the case.

Hut if it were not the rule of law, that the residuum wen* to be, diminished by the particular legacies, in pro-ponían to their amount, then* is enough in this will to show it 10 have been die testator’s intention, that >he debts nt least should he paid out of the residuary part; and then it will fellow, that, the particular legacies are not to tie a fleeted by the. debts. After giving all the. residue of his estate to his younger chüdr* «, he gives power to his executors to sell any pact of the land included in this residua.;? when they .-.hail r.e** occasion ; and he adds in the next sentence, that they shall collect and pay his debts as fed <■:> possible; and pay the surplus of the monies into his wife’s ¡lands for tire benefit of his said younger children. ilis deb'ls e crein his contemplation when iio >.U-iTcted this sale, of the lands, and it was also m his con • tempbiiion, that a considerable pait of the monies to be raised by these '«den, was to he exhausted by his executor,*'. ; e.nd the surplus to go to his younger children whoso hinds were thus to be sold if necessary in the. opinion of the executors, H seems evident therefore, he contera-niuied the payment of his debts out of the property comprehended in Ibis residue to Siis younger children. It is true, he seemed to «oppose- the lands would be fully sufficient bn* this purpose; but ir is equally true, be supposed hr; parties, bu* f gnomo would not be liable to those, debts, and then, the rule of law more strongly applies,— *265It is the strong bent of my inclination to make this legacy contribute, because the testator supposed his negro part of the residuum at least, would be left for his wife and younger children, and possibly a surplus out of his lands to be sold. He did not foresee'the great deficiency that would happen, and that it would become necessary to fall upon the negroes intended for his younger children; but yet 1 cannot persuade myself to depart from a rule of law so well .established, and say, that these negroes being a part of the residuum, shall only abate in proportion with the particular legatees.

-It is argued, that although this be a specific legacy, the residuary legatees are not hound to contribute ; because these legacies are of a different species of property, namely of negroes, and of money ; and where there are two specific legatees of two different subjects, the one jshall not contribute to make good the other. 2 Fes. 563. I take the law to be thus, where specific legacies are given to several persons, of several parcels of a particular subject ; and that subject fails in quantity to supply all, there each legatee must abate in proportion ; when at the same time, other specific legatees of a different subject, shall not contribute at all, or be at all affected by the deficiency. For in such case who shall say, which one of the legatees shall be totally disappointed? And yet one, or more, must be totally disappointed, unless an abatement should take place; but when all the legacies, which were pecuniary, or unspecific legacies, are exhausted in the payment of debts; and there still remain debts to be paid, then all. the specific legacies shall abate in proportion— For who shall say, which of these specific legatees shall be disappointed of his legacy? They are all equally objects of the testator’s bounty. 1 P. *ffil.*404. 3 Sac. ¿25.483. In the present case, there is no dispute between specific legatees of the same subject, insufficient for the payment of all, nor yet between specific legatees, where all other parts of the estate are exhausted — there yet remains a large residuum. 1 *P. FPU.*404. But the truth 'is* neither of these legacies are specific; neither the Plaintiff's, nor that of the residuary legatee; and therefore this argument is without foundation.

It follows then, that the administrator *de bonis non,*must pay the legacy claimed by the Plaintiff, out of the residue bequeathed to the younger children ; and if that *266js not sufficient, then out of that part of the residue bequeathed to *Mrs. Nash—*for her legacy, though general and residuary as to the first children, is particular in respect of the younger children.

The only question then remaining is, what shall the Plaintiff recover ? The testator after bequeathing a number of negroes to the Plaintiff, particularly naming them, adds, “and cash sufficient in the opinion of my executors hereafter to be named, not exceeding one thousand pounds, to purchase a tract of land on Tar river.” The quantity of money is left uncertain, and the extent and quality of the land also. It is argued *by*the counsel, that this was left in the discretion of the executors; that they might be at liberty to judge of the price of the tract to he purchased* from the circumstances in which they might afterwards find the estate; and that as the executors were to have regulated their discretion by these circumstances, so will the court, now the matter is brought before them. No authorities were cited in support of this position, and there are but few to be found. There is one passage ira *Swin.*496, and another in *God.*424, *s.*16, which favor it. in the laftee of these books, it is said from the civil law, that the ordinary shall moderate the sum, with respect to the testator’s estate. In the former of them it is said, that if such an uncertain legacy he given for the performance of some act or other consideration, &c. &c. so much is understood to be disposed, as may satisfy or answer the purpose, whereunto it is appointed *;*and as the ordinary, considering the necessity of the thing, and the ability of the testator, and the continuance of the gift, shall deem expedient. These hooks it must be admitted, are. not of the best, *authority;*they contain collections, taken parti} from cases adjudged in our law, and partly from the civil law — yet as the rule laid down by them is so equitable in itself, and has not been contradicted by any adjudged case, it seems fit to be adopted in the present case, and then the court will regulate their discretion by a respect to what, in all probability, the testator supposed was the net estate he had provided for his younger children $ which seems to have been the slave part of their residue, or in other words, he probably supposed the Plaintiff would have one thousand pounds, when they had the whole of the negroes comprehended in their residue. Upon this principle, the Plaintiff's legacy should be di~ *267imnisbed in proportion to the diminution of their resida-om ; and for the purpose of ascertaining this, let the Mas-; ter ascertain the value of all that part of their residue that yet remains unsold, except negroes, and deduct that value from the debts remaining unpaid — let him ascertain the value of the ¡61000 legacy, dollars being now estimated at ten shillings, and at twelve shillings when the will was made — let him then ascertain the value of the slaves contained in the residue, and what proportion the said legacy beareth to the value of the slaves $ and deduct that proportion of the balance of debts, and also, the ¡6250 paid in part by the Defendant, from the said legacy, and report the balance to this court. This report was made, and a decree made for the balance with interest.

Note — As to legacies, general or specific, see *Toller’s Law of Executors,*301. As to abatement of legacies, see *ibid. 339. A*residuary legatee may, by the particular words of the will, be a specific legatee instead of a general one. *Cook*v. *Oakly,*1 P. *Wil.*302.