#### David S. Henry, and others, *vs.*Cornelius Graham, and others.

Testator ‘ ordered and directed his whole estate, after payment of his just ■ debts, to be equally divided among and between’ several persons, naming them. He owned at the date of the will only personal property, but afterwards acquired some real estate *'.*— Held, that the legacies were general and not specific, and therefore that the personalty was liable ■for payment of debts before the realty.

BEFORE JOHNSTON, OH., AT MARION, FEBRUARY, 1855.

JOHNSTON, Ch. Tbe question submitted to mein tbiscase, arises out of tbe following circumstances: Bichard J. Scarborough, having executed bis will, tbe day of , 1853, died tbe 9th September, 1854, leaving a widow, and a sister, tbe wife of James J. Harllee, as bis only next of kin. His will is in the following terms:

“ 1. I direct all my just debts to be paid.

*“*2. If I shall leave a child, or children, or tbe issue of a child or children, surviving me, I order and direct tbe following disposition, of my whole estate, to wit: Tbe sum of five hundred dollars to be paid annually to my wife Susannah J. Scarborough, during her natural life, provided she shall remain a widow. The rest and residue of my estate to descend to, and vest absolutely in any child, or children, &c., &c.

“ 3. If at the time of my decease, I shall leave no child, or children, or their issue surviving me, (as provided in the second clause of this my will,) then I order and direct my whole estate, after the payment of my just debts, to be equally divided among and between the following persons, to wit: my *101wife, Susannah. J. Scarborough, David S. Henry, John H. "Walsh, Addison Walsh and Sarah Walsh,” &c.

After the execution of his will, the testator purchased real estate, described in the pleadings, but having never republished the will, he died intestate as to this property. All the other property left by him was personal, and is covered by this will, and as he left no issue, it passes to the legatees named in the third clause.

The testator left debts behind him, and among others, a mortgage for the price of the after-acquired real estate; and the question is presented, whether these debts are chargeable upon this real estate, to the loss of the next of kin, on whom it descends, or upon the personal estate covered by the will, to the loss of the legatees who take under the will. This is the only question now submitted for judgment.

When a testator disposes of a mixed estate in general terms, subject to, or charged with debts, the doctrine may be admitted that all portions are equally liable to the burden, whether real or personal, — a modification may arise from the context of the will, and the relative rank of the legatees and devisees.

This doctrine applies obviously only so far as the estate is covered by the will, and not to cases where part of the property is intestate. In such cases, the liability for debts is determined generally against the intestate to the exoneration of the testamentary property.

Perhaps this doctrine may be deflected by a very strong context, manifesting explicitly a purpose to exonerate the intestate estate, and confine the debts to the testate. But if we examine this will, there is not enough in it for this purpose. '

The testator’s first direction is, that his debts be paid. He then directs the division of his estate. This is no more than the injunction of the law, and does not modify it, and is sur-plusage.

In the second clause there is no expression postponing the *102legacies to tbe debts, wbicb shows that tbe testator bad no settled purpose on tbe subject.

Tbis observation should be carried in tbe mind in perusing tbe third clause, wbicb is tbe one that has taken effect. In that clause, be directs tbe division of bis whole estate, *“*after tbe payment of bis debts.” But in addition to tbe previous remark (arising from tbe second clause), that tbe testator seems to have bad no settled purpose in using these words, I have only to repeat, they do not modify tbe general law on tbe subject, and are mere surplusage. Certainly they express no intention to exonerate tbe real estate, and therefore do not repeal tbe legal rule wbicb generally applies.

Can any *implication*of an intention to exonerate specific property arise from tbis will or in tbis case ? Tbe real estate for wbicb tbe exemption is claimed is intestate, only because it did not belong to tbe testator when be dictated bis will, and was acquired afterwards. How can we *imply*tbe existence of any intention to exonerate, or indeed, any other intention in tbe mind of a testator, respecting property not existing in him at tbe time.

If tbis testator bad, by bis will, confined its operation to tbe property owned By him on tbe specific day be executed it, giving that property, after payment of bis debts, to A. or B., and bad afterwards acquired *personalty,*as to wbicb be died intestate, would tbis *personalty*be exempted from debts to tbe disparagement of tbe legatees ? I presume- tbis will not be contended for, and yet tbe principle involved must be tbe same, when tbe after-acquisition is realty, as if it bad been personalty. Intestate property cannot be exonerated from its comparative liability, except by an intention expressed, not only to charge tbe testate property with tbe debts, but to charge it thus with an intention to exonerate tbe intestate, and such an intention is equally requisite, whether tbe latter be real or personal.

In what I have said hitherto, I have not deemed it necessary *103to remark upon tbe relative liability between intestate real and intestate personal property. As between these two classes, tbe primary liability is on tbe personal.

Nor have I remarked upon tbe exemption, wbicb real estate, although intestate, may be entitled to, in cases where tbe legacies are of a certain rank, as, for instance, residuary.

On this subject I understand tbe counsel desire to carry up tbe case, with a view of examining *Warley*vs. *Warley,*(Bailey Eq. 397) and two other cases (2 Rich. Eq. 270 and 3 Strob. Eq. 24) — and I purposely abstain here from any remark on those cases.

That case subjects descended real estate, in exoneration of specific legacies. I take tbe third clause of the will to be specific. If" tbe whole estate bad been given to a single legatee, according to *Warley*vs. *Warley*it would have'been specific. Or if one half bad been given to one, and tbe *rest*(not designating it as tbe *other half)*to another, I presume each of tbe two would have taken legacies of tbe same rank, both specific.

Residuary legacies are not such on account of tbe term “residuary,” or “rest” and “residue;” but from tbe nature of tbe thing conveyed. A specific legacy is not liable to be increased or diminished, by tbe operation of any other legacy, except one of tbe same character. An abatement may arise from such a source. But tbe nature" of a residuary legacy is, that its amount is floating and contingent, and it can only'be determined by first taking out legacies of a superior degree.

In this case, tbe whole estate is given to tbe legatees; and tbe division of it among them does not degrade tbe legacy below tbe rank it would have held, if it bad been given to one of them.

It is adjudged and declared, that tbe after-acquired real estate, referred to in tbe pleadings, and to wbicb I have hitherto bad reference, is primarily liable for tbe debts of tbe testator.

*104When tbe debts are ascertained (tbe creditors may be called in) an inquiry may be made, witb tbe view of setting apart a fund to pay tbern, and upon a report being made, an order can be applied for.

Tbe defendants, Susannah J. Scarborough and James J. Harllee and wife Mary E., appealed, and moved to reverse tbe decree on tbe ground:

That bis Honor has, in bis said decreej adjudged that tbe descended real estate, referred to in tbe pleadings, is primarily liable for tbe debts of tbe testator. Whereas, it is respectfully submitted, tbe property bequeathed in tbe will, being, by tbe terms thereof, charged witb tbe payment of all tbe testator’s debts, is tbe primary fund for this purpose, and tbe descended real estate should have been adjudged to be exempted, until this primary fund shall have been exhausted.

*Inglis,*for appellants.

The testator’s whole personal estate passes under tbe dispositions of bis will — tbe real estate, all, of which was acquired after tbe execution of tbe will, descends. Tbe inquiry is, what is tbe primary fund for tbe payment of tbe testator’s debts, including the debt contracted in tbe purchase of tbe real estate and secured by a mortgage of tbe same? Tbe language of tbe will is,'“I order and direct my whole estate, after tbe payment of my just debts, to be equally divided among and between tbe following persons,” &c.

1. Although, under our law, *all*the property of a deceased person is equally liable for the payment of *all*bis debts, as between bis creditors and those entitled to tbe succession, yet as among those entitled to tbe succession themselves, this is *not*so: on tbe contrary, as a general rule, tbe personal estate is still tbe *primary fund for the payment of debts. Hull*vs. Hull, 3 Rich. Eq. 65 ; *North*vs. Valle, Dud. Eq. 212.

*1052. A testator *may*exempt tbe whole or any part of bis personalty, from tbis primary liability, tbe intention to do so being clearly manifested,' either impliedly, as by specifically bequeathing it, and leaving other property not so specifically disposed of, or expressly, by “ charging,” his debts upon some other portion of his estate. 1 Story’s Eq. Jur., sec. 571-3,

3. In the case now before the Court, the personal estate is not specifically bequeathed, and therefore, the operation of the general rule is not, in *this*way set aside.

The distinction is between *general*and specific, not *residuary*and *specific.*A residuary bequest may be specific. Williams on Executors, 993; lb. 1006; 1 Roper on Legacies 192, note*; lb. 242.

“A legacy is specific when it is a bequest of a *specified part*of the testator’s personal estate, which is so distinguished.” 2 Will. Ex’ors, 993.

“ The bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a horse, a piece of plate, stock in the public funds, a security for money, which would immediately vest with the assent of the executor.” 1 Rop. Leg. 192.

“The principle of decision is, the severance of this particular property from the great body of the estate, and the specific gift of it to the legatee.” “ It is capable of being-delivered in specie.” 1 Rop. Leg. 242-3.

*“*The bequest of all a man’s personal estate generally is not specific, the very terms of such a disposition demonstrate its generality.” 2 Wins. Ex’ors. 1006. “Since then a bequest of personal estate requires, as before mentioned, to be limited or controlled to some particular place, or to be referred to as in some person’s hands, in order to make it specific, it follows, that if there be no such restrictive expressions, a legacy of personal estate, generally, will be general and not specific. 1 Rop. Leg. 243 ; *Howe*vs. *Lord*Dartmouth, *1067 Yes. 147; *Warley*vs. Warley, Bail. Eq. 409; *Morion*vs. Thompson, 6 Bich. Eq. 370.

The *criterion*of a specific legacy is, that it is liable to ademption. *Coleman*vs. Coleman, 2 Yes. 639, Summer’s edit. Editor’s note 1, at the end of the case. But see 2 Vms. Ex’ors, 995 and 1001, how far this is qualified by subsequent cases. It seems to be still true as the general rule, subject only to the exception, that the testator may, by express terms or the form of the gift, protect it from ademption, as a bequest of “all of a certain stock which testator shall have at his death.”

“ Courts lean against construing legacies specific, and the intention with reference to the thing bequeathed must be clear.” 1 Bop. Leg. 193 ; 2 Will. Ex’ors, 995; *Chaworth*vs. Beech, 4 Yes. 563 ; *Junes*vs. Johnson, lb. 573.

“No legacy is to be held specific, unless demonstrably so intended.” *Kirby*vs. Potter, 4 Yes. 750; *Burton*vs. Coolce, 5 Yes. 463; *Webster*vs. *Hale,*8 Yes. 410; *Cogdell*vs. *Cogdell,*3 Dess. 372.

4. But further, there is not here any *charge*of the debts on any other part of the estate; on the contrary, they are charged directly upon the bequeathed personalty.

To “ charge ” the real estate in England, or to direct it to be sold for payment of debts, is only to bring it to the aid of the personalty. Why? The personalty is the primary fund, the realty is not liable for the debts generally, the debtor can make it so, his doing so is necessary in order to provide for the payment of debts. This is an occasion for his interference and it does not therefore, of itself, import more than that the debts shall not go unpaid, and that if the fund, primarily subjected by the law, fail, the realty shall make up the deficiency. To *substitute*it for the primary fund requires more, requires evidence of testator’s intention to *discharge*the *107personalty, tbe primary fund. This results from the favor their law has to the *heir.*

But this rule has no application here, even for the protection of the real estate, because the reasons have no place here. There is no heir to favor, real and personal estate are distributed alike, there is no landed aristocracy to build up; real estate is already liable to satisfy creditors; to charge it, is either unmeaning, or else it imports the making it a *‘primary*fund.

How much less can any such exclusion of the liability of realty be required in order to constitute the debts a charge upon *the personalty.*Any words which direct property to be applied to payment of debts, or, in any manner charge debts upon it, must be held to constitute such property the primary fund. *Pinclcney*vs. Pinclcney, 2 Rich. Eq. 234, 243; *Warley*vs. Warley, Bail. Eq. 397.

The words, “after the payment of my debts,” constitute a charge, even on'real estate. Thus, 1 Jarm. Wills, 743, “A devise, *after payment of*debts, is considered as creating a charge, not as importing postponement.” *Hall*vs. *Hall,*2 McC. Oh. 303; *Warley*vs. Warley, Bail. Eq. 409; *Ford*vs. *Gaither,*2 Rich. Eq. 270; *Laurens*vs. *Lucas,*6 Rich. Eq. 223.

The case of *Broiun*vs. James, 3 Strob. 24, commented on. In the bequest to McBride, the particulars intended to be embraced in the general terms, “all my personal property,” are specifically named and enumerated, &c.

*Miller,*Spain, contra.

*Largan,*in reply.

The opinion of the Court was delivered by

Johnston, Oh.

On the'point, whether the will charges the *108debts of the testator on the estate owned by him at the date of his will, (which was entirely personal property,) in such manner as to reduce the gift of it to his legatees to a gift of the balance only, after deducting debts, I prefer to retain my opinion. It is not necessary to decide it here; both because I am now satisfied the legacy was general, and not specific; and because the third clause might be considered as a mere alternative to the second, and the words, “ after the payment of my debts,” as a mere reference to the general direction to pay the debts which precedes the second. Besides, I would ■ not, without necessity, enter into an examination of the seeming conflict, upon this point, between the case of *Warley*vs. *Warley**(a)***and the subsequent case of *Brown*vs. *James.**(b)*

If the gift of the whole personal estate to a single legatee, were a specific legacy, manifestly the gift of it to several, to be equally divided among them, must constitute them specific legatees as to their different shares. But the real question in the case is, whether the gift of the whole estate, in general terms, is a specific legacy. It is so said in *Warley*vs. *Warley,*and in *Brown*vs. *James;*and certainly the position is not totally devoid of support. .

But it does not strike me as entirely correct, as an abstract proposition. Unless there be something in the will to confine the general expressions of the gift to property of a particular description, or in a particular condition, the legacy is general and not specific. The distinction between these two sorts of legacies, says Mr. Williams,(c) “ is of the greatest importance.” “ If there be a deficiency of assets, a specific legacy will not be liable to. abate with the general legacies; while, on the other hand, if the specific legacy fail by the ademption or inadequacy of its subject, the legatee will not be entitled to recompense or *109satisfaction ont of tbe general personal estate.” A legacy is general, be says, *“*when it is so given as not to amount to a bequest of a particular thing, or money of tbe testator, distinguished from all others of tbe same kind. A legacy is specific when it is a bequest of a *specified*part of a testator’s personal estate, which is so distinguished.’’(a)

It is not doubted that the bequest, in general terms, of a testator’s whole personal property at a particular place, may be regarded as a specific legacy, because the description of its position serves to discriminate it from all other property of like character situated elsewhere; or that where a testator disposes of real and personal property, describing it as his estate in another country, he having other estates differently described, this is specific, as in *Nesbit*vs. *Murray,**(b)***cited by Chancellor DeSaussure in *Warley*vs. *Warley.*But where there is in the words of the legacy, and in the context, a total absence of description, it is difficult to attribute to the legacy any *specific*object.

It is not essential to a specific legacy, that the property bequeathed should actually exist in the testator at the making of the will, as Sir Thomas Plumer intimated, in *Parrot*vs. Worsfield.(c) A contrary opinion has been frequently held, as for example, in *Stephenson*vs. *Dawson.**(d)*

Nor is it an invariable test of a specific legacy, that it be liable to ademption; as is held in the case last mentioned.

But after all that can be said,- there is not, and cannot, in the nature of things, be a specific intention, in a general and indefinite bequest of a whole estate, subject to continual changes, to an entire conversion, and including not only chattels, but choses of every description.

And so Mr. "Williams, concurring with Mr. Roper, sums up the doctrine: “ The bequest,” says he, “ of all a man’s per*110sonal estate generally is not specific; — tbe very terms of snob a disposition demonstrate its generality ;(a) and tbe circumstance of tbe bequest of tbe general 'personal estate, being-in tbe same senteneé witb tbat of tbe real, tbe devise of wbicb is naturally specific, will not be sufficient to make it a specific legacy.”(b)

It is ordered, tbat tbe circuit decree, so far as it adjudges tbe after acquired real estate, referred to in tbe pleadings, primarily liable for tbe debts of tbe testator, be reversed and set aside; and it is adjudged and declared, tbat tbe personal estate upon wbicb tbe will operates, is tbe primary fund for payment of said debts. And it is ordered, tbat tbe case be remanded to tbe Circuit Court.

DuNicik, DaegAN and 'Wakdlaw, CC., concurred.

*Decree reversed.*

(a)

*а)*1 Bail. Eq. 397.

(b)

б) 3 Strob. Eq. 24; *et vide Pinckney*vs. Pinckney, 2 Itich. Eq. 219 and *Ford*vs. *Gaither,*Id. 270.

(c)

 2 Wms. on Ex’ors, book 3, chap. *2, §*p. 994.

(a)

 2 Wms. on Ex’ors, book 3, chap. 2, g 3, p. 993.

(b)

 5 Ves. 149.

(c)

 1 Jack. & Walk. 601.

(d)

 3 Beavan Rep. 349.

(a)

 1 Hop. Leg. *215,*3d edition.

(b)

*1*Yes. 138.