#### *W. W. Brown et al*v. *W. E. James et al.*

Columbia,

May 1849.

Testator, after directing; that liis just debts should be paid, made specific bequests of all his personal property; subsequent to the execution of the will, he entered into an agreement for the purchase of land, took possession and died before the purchase money became *due*— held, that if the agreement should be carried into specific execution, the land must be applied to the payment of the purchase money, before resort could be had to property *specifically bequeathed.*

In South Carolina, the whole estate is charged with the payment of debts, but a testator has the right to prescribe a law for the disposition of his estate, which is obligatory upon all claiming as volunteers; and the inquiry always is, has the testator expressed an intention to have his assets marshalled in a different manner from that prescribed by law *1*

In the absence of any special direction by the testator, certain rules have been adopted in the marshalling of assets; one of which is, that descended real estate shall be applied to the payment of debts, before a resort is had to personalty specifically bequeathed.

*Before*Dunkin. Ch. *at*Sumter, *June Term,*1848.

The facts of the case appear fully in his Honor’s decree.

Dunkin, Ch. By the wilL of James M. Brown, he directs that all his just debts and funeral expenses should be paid, and after payment of his just debts and funeral expenses, he bequeaths two inconsiderable pecuniary legacies to charitable uses, an annuity of $70 to his father, and $1 70 cents to each of his brothers and sisters. All his personal property, consisting of negroes therein named, stock of cattle, horse.s, &c. he bequeaths absolutely to James McBride, son of Samuel and Martha McBride. The will was executed 10th May, 1844. Some months afterwards, to-wit, on the 15th August, 1844, the testator contracted, in writing, with Wm. E. James, as the agent of Niel McCoy, for the purchase of two adjoining tracts of land on Black River, containing thirteen hundred acres, for $3000, the price to be paid on the 1st of January, 1845, at which time titles were to be delivered, and in the meantime, the testator entered into possession of, occupied, and made improvements on the premises.— About the 1st of December, 1844, the testator departed this life. Samuel McBride, who had been appointed executor of *25his will, declined to qualify, and the defendant, William Lewis, Ordinary of Sumter District, took possession of the estate, under the provisions of the Acts of Assembly in such' cases made and provided. The complainants are the heirs at law of the testator, and the bill is filed for a specific performance of the written contract by the vendors, and for payment of the purchase money out of the personal estate of the testator. The contract, as has been said, was in writing, under the hands and seals of the respective parties, and after stating the terms, it was provided that, “ if either party should refuse to perform the agreement, then he was to pay the other $1000, as the liquidated damages agreed upon between the said parties for the said breach of contract.”

Sugd. Vend. c. 451-

ibid,

Ib¡(J

10 Yes. 597.

The answers of James and McCoy express their readiness to comply with the contract and execute titles, provided the purchase money be paid within a reasonable time. The complainants aver that they are prepared to supply any deficiency, if the personal estate of the testator should prove insufficient to discharge the debt.

The Ordinary rather interposes a plea to the jurisdiction, on the ground that, being in possession of the estate under an Act of the Legislature, parties had no right to call him to account for the same, “or for’any application of it whatsoever.”

The Ordinary also submits, that by the terms of the agreement, either party was at liberty to refuse to comply, by paying the liquidated damages,-and that he is ready to do. The rights of the legatees are also insisted on in their respective answers.

It may be as well first, to consider the case without reference to the Acts of the Legislature on the subject of the Ordinary’s duties.

When a contract is made for the purchase of an estate, Equity considers things agreed to be done as actually performed. “The death of the vendor or vendee before the conveyance, or even before the time agreed upon for completing the contract, is, in Equity, immaterial.” The vendee may devise the estate before a conveyance, and that although the estate is contracted for at a future day. Estates contracted for after the will, do not pass by it. But in such cases, the heir at law will be entitled to the estate for his own benefit, and if not paid for, the purchase money must be paid out of the personal estate of his ancestor. In regard to this latter point, the subject is very fully discussed by Lord Eldon, in *Broom*v. *Monck.*The only inquiry is, whether at the death oí either party the contract was such as would have been enforced. “Whatever,” says he, “is the state of liability of the party himself, to take at his death, must be the state of liability to be considered upon questions *26between those representing him after his death. When he ^ died, all questions between the real and personal representatives were closed by his death without rescinding the contract.” If the title of the vendor was such as he could require the vendee to accept, the heir is entitled to a specific performance, and to have the purchase money paid from the personal estate of the ancestor. In other words, the relative rights of the parties before the Court (supposing McCoy’s title valid,) are to be considered as if the testator had not only possession of the premises, but a valid conveyance, the purchase money not being payable until a month after his decease.

Speers Eq. 48.

8 Yes. 396.

Bail. Eq. R. 397.

But there are other principles which it is also neeessary *to*consider. The complainants, as heirs at law of the testator, do not propose absolutely to take upon themselves the performance of the contract made by their ancestor, and pay the purchase money, but they require the personal estate of the testator to be exhausted, and express their readiness to make up the deficiency; in other words, unless the Court should give to the heirs the advantage of first applying the personal estate to the payment of the consideration money, they do not insist on a specific performance. This renders it important to examine the relative rights of the heirs and legatees in marshalling the assets. The complainants can desire no more than that the premises should be regarded as real estate descended, as if the testator had received a conveyance before his death, but died leaving the purchase money unpaid. If this were a case of intestacy, and the matter were for adjudication in Westminster Hall, the principles to which the Court has heretofore adverted, would be strictly applicable. But even ,in England, legatees are entitled to an equity which is well recognized, and on which mere distributees cannot insist. The rule there is, that if the personal estate, which is the only fund for pecuniary legatees, has been appropriated to the satisfaction of creditors, the legatees have an equity to stand in the place of the creditor, and be recompensed, to that extent, from the real descended, *Pell*v. *Ball.*“In the case of legatees,” said Lord Eldon in *Aldrich*v. *Cooper,*“ against assets descended, a legatee has not so strong a claim to this species of equity as a creditor; but the mere bounty of the. testator enables the legatee to call for this species of marshalling, that if those creditors having a right *to go*to the real estate descended, will go to the personal estate, the choice of the creditors shall not determine whether the legatees shall be paid or not;” nor do these principles seem to be in any manner impugned, but rather sustained, by *Warley*v. *War-ley,*cited for the complainants. It is there ruled that the real estate descended, is applicable to the payment oí debts *27in preference to personal estate specifically bequeathed. It was further held that a bequest of the testator’s *whole*per- v sonal estate, or of the *residue*after *specific*legacies out of it, must, for this purpose, be regarded as specific in this State. “ I conclude,” says the Chancellor, “ that where a testator bequeaths his whole personal estate, and suffers his land to descend, or where, after giving specific legacies, he gives the residue, this is to be considered specific, and the lands descended, are first liable to debts.” If the bequest be, however, “ of the *residue*of his personal estate, after payment of his debts,” that is equivalent to a charge on the personal estate, or a declaration of the intention on the part of the testator, that his debts should be paid from that source, and only the surplus pass to the residuary legatee. But the bequest to James McBride is not of “a residue.” The language is, “I give and bequeath to James McBride all my personal property, consisting of the following negroes, viz: Jinney, Robert, Milly, Henry, and Louisa, together with their future issue and increase; also, my stock of cattle, horses, <fcc. to him and his heirs forever. I desire that the several legacies above mentioned be delivered immediately after my decease, or as soon thereafter as my executor, hereafter named, shall think proper.” The only other legacies besides that to James McBride, were $100 to the Theological Seminary at Columbia, and a similar sum to the Brick Church at Salem.

If the bequest to James McBride had been simply “all his personal property,” it would have fallen precisely within that class which Chancellor Harper says must in this State be regarded for this purpose as specific. But if the language had been, *“*I bequeath to James McBride the following ne-groes *;*Jinney, *Sec.,*with their future issue, also my stock of cattle, horses, &c., comprising all my personal property,” could there be any doubt that the legacy, at least *quoad*the enumerated objects, would be specific?

It is almost the universal practice of testators, from an instinctive regard to justice, first to provide that their debts shall be paid, and then to dispose of their effects to the different objects of their bounty. Without any such proviso, the property bequeathed would of course be liable for debts, and the legacy might be defeated by the action of the creditors ; but this liability does not affect the character of the bequest.

Mr. Roper says that a bequest of *general*personal estate, may or may not be specific, — In order to ascertain its character, he says, the same rule must be applied as in ascertaining whether a money legacy be specific. It must be so described by the testator as to empower the legatee to say to the executor, deliver to me this or that article, for I am enti-*28tied to receive it in specie. In *Pell*v. *Ball*it is suggested that a bequest of general personal estate may be partly spec^c an<^ Par^y general, or pecuniary, according to the intention of the testator. In the case before the Court, however, there could be surely no difficulty on the part of James McBride in calling on the executor, and requiring him to deliver ^ negroes named, the stock of cattle and horses, for he was entitled to receive them in specie, and-the testator had added an expression of his desire that they should be delivered immediately after his decease.

lRo 184. 6£’

Having adopted the conclusion, that if the contract be carried into specific execution, the descended real estate must be applied to the payment of the purchase money, before resorting to the property specifically bequeathed, and also that the legacy to James McBride of the negroes, stock of cattle and horses, is for this purpose specific, it may not be for the advantage of the complainants to assume the contract, and the bill is not framed in that aspect. It would be entirely unsafe for the Court, upon the pleadings and proofs submitted, to pronounce a decree between the co-defendants, nor was such decree asked at the hearing.

It is ordered and decreed, that the bill be dismissed without prejudice — that the complainants pay their own costs and those of the defendants, James and McCoy — the costs of the other defendants to be paid out of the estate of the testator.

The complainants moved the Court of Appeals to reverse or modify the decree of the Circuit Court, on the following grounds.

1st. That the Chancellor, in the said decree, declares that the land mentioned in the bill is subject to the payment of debts before the personal estate bequeathed *•*when the will, in fact, makes all its bequests subject to the payment of debts, and to take effect “ after the payment of debts.” And the contract for the purchase of the said land, being a debt, the personal estate given in the said will should be resorted to for payment, before real estate descended.

2d. That the said decree is contrary to equity.

*Miller,*for the motion.

*Moses,*contra.

WILL OP JAMES M. BROWN.

In the name of God, amen. I, James M. Brown, of Sumter District, and State of South-Carolina, being in health of body, and of sound and disposing mind, memory, and understanding — praise be to God for the same — do make this my last will and testament, in manner and form following, to wit:

*Imprimis.*I will and desire that all my just debts and fu*29neral expenses be paid. Secondly. After the payment of my just debts and funeral expenses, it is my will and desire that the worldly goods which it hath pleased God to bless me with, shall be disposed of in the following manner, viz : I give unto the Theological Seminary of South-Carolina, in Columbia, one hundred dollars. I give to the Trustees of the Brick Church, in Salem, for the use of said Church, one hundred dollars. I give to my father, William Brown, seventy dollars per year during his natural life. I give to each of my brothers and sisters one dollar and seventy cents in full of my said estate. I give and bequeath unto James McBride, son of Samuel and Martha McBride, all my personal property, consisting of the following negroes, viz: Jinney, Robert, Milly, Henry, and Louisa, together with their further issue and increase ; also, my stock of cattle, horses, <fcc., to him and his heirs forever. I desire that the several legacies above mentioned be delivered immediately upon my decease, or as soon thereafter as my executor hereafter shall think proper. Lastly. I do hereby nominate, constitute and appoint Samuel McBride sole executor of this my last will and testament, hereby revoking all others heretofore made by me.

In witness whereof, I have hereunto set my hand and seal, this tenth day of May, in the year of our Lord one thousand eight hundred and forty-four.

James M. Brown, [l. s.]

Signed, sealed, and delivered, and published, by the above named James M. Brown, as and for his last will and testament, in the presence of us, who, at his request, and in his presence, have subscribed our names as witnesses thereto.

Hardy Wilks.

William E. Smith.

W. H. Smith.

*Curia, per*

Dunkin, Ch.

In England, where lands are not liable for simple contract debts, the Courts have been sometimes astute in giving such construction to a will as would charge the real estate and do justice to the creditor. In South Carolina, the whole estate is charged, by law, with the payment of debts; but, in the absence of any special direction by the testator, certain rules have been adopted in the marshalling of assets. One of these is, that descended real estate shall be applied before a resort is had to personalty specifically bequeathed. But, as has been elsewhere intimated, a testator has the right to prescribe a law for the disposition of his estate, which is obligatory upon all claiming as volunteers. The inquiry always is, has the testator expressed an intention to have his assets marshalled in a different manner from that prescribed by law ? “ Does there *30appear, from the whole testamentary disposition taken to-gg^-,^ an intention on the part of the testator, so expressed as to convince a judicial mind, that it was meant not merely to charge the estate secondarily liable, but so to charge it as to exempt the estate primarily liable?” If lands are specially devised for the payment of debts — if, as in Pell v. Ball, the testator directs his debts to be paid out of the proceeds of the crops of his estate, or, as in *Pinckney*v. *Pinckney,*where he directed them to be paid from the income of a certain plantation and slaves, in all such cases the testator’s intention, being' clearly manifested, is respected and enforced by the Court. He has set apart or indicated a fund for the payment of his debts, which must be first exhausted before the Court will permit an inquiry as to any other fund.

2 Rich. Eq. 218.

Can this be said of Brown’s will ? Is there any expression to satisfy a judicial mind that he had indicated any part of his estate for the payment of his debts in exoneration of any other part? If he had said, “Imprimis, I direct all my debts to be *paid.*— Secondly, after payment of my debts, I leave my Congaree plantation to A — and one hundred ne-groes, by name, to B,” and then had left a large real and personal estate of which he made no disposition — would it be said that the debts must be paid, not out of the intestate estate, but out of the plantation devised to A, or the negroes specifically bequeathed to B ? The language of the will is no more than *this*— “ *Imprimis,*I desire that all my debts and funeral expenses be *paid.*— Secondly, that being done, I give,” &c. The testator desired, in common parlance, to be just before he was generous; and this is the only intention which the Court can collect from the expressions used.

It is ordered and decreed that the appeal be dismissed.

The whole court concurred.

*Decree affirmed.*