#### *William Hull and others*vs. *Ann Hull and others.*

Tlie direction in a will, that the executor, “out of the testator’s estate pay off all his just debts and funeral expenses,” is some evidence, that the testator intended that the personalty — the fund at the executors’s disposal — should be first used for the payment of debts.

Where the testator, himself, gives no direction on the subject, the personal estate is the primary fund for the payment of debts; and, as between devisees and legatees, the personalty must be exhausted in payments of debts, before the realty can be resorted to for that purpose.(A)

*66In estimating the value of estates in land, a fee conditional should be valued as high as a fee simple; especially where the donee has a child living.

Where devises and bequests to a bastard, are avoided, under the Act of 1795, for the excess over one fourth of the testator’s estate, the bastard has the right to elect what property he will retain — throwing oif the excess — or to retain the whole and pay for the excess; partition will not be resorted t© except where no election is made.

*Before*Da eg an, Ch., *at*Edgefield, *June,*1849.

In this case— which came up on exceptions to the Commissioner’s report, in obedience to the order of reference made by the Court of Appeals, 2 Strob. Eq. 174-195 — the decree of his Honor, the Circuit Chancellor, is as follows:

Daugan, Ch. This case having been referred, by the Court of Appeals, to the Commissioner in Equity, to enquire and report as to various matters of fact, necessary to be ascertained before a final adjudication of the questions between the parties could be made, the Commissioner has, at this term, reported upon all the matters submitted to him. To this report, both complainants and defendants have exceptedj and this is the form in which it comes before me for a hearing.

I will consider the defendants’s exceptions first, as they raise questions that may, in some measure, be considered as preliminary *67to those presented in the exception of the complainants. The defendants’s first exception to the report is, “ because the Commissioner has erred in charging the balance of the debts, after exhausting the intestate property, to the bequests to the defendants, until the amount of said bequests was exhausted, and then apportioning the balance of debts still unpaid, between the devises to the defendants; whereas, it is submitted, that where devises and specific legacies have to abate to pay debts, there is no legal distinction between real and personal property, and that the value of both devises and bequests should contribute rateably, without regard to the distinction between real and personal property.”

This exception raises a very important question, and I am not aware that the particular question here made, has ever been expressly decided, m any case occurring in the Courts of this State. If the point were to be adjudicated by the law of England, the way would be perfectly clear and open. I would have but to travel a broad and beaten path, so well defined that it would be impossible to commit an error. In the Courts which sit in Westminister Hall, on a bill to marshall the assets of a testator for the payments of debts, a specific legacy would, in a question like this, undoubtedly be primarily liable, in exonera*68tion of a devise of real estate,, which is always *specific;*and the primary fund would have to be exhausted before the devise could be touched. And in support of this doctrine, as strong an array of authorities and decisions, flowing in an uniform and unbroken current, could be presented, as could be adduced in support of any principle of British jurisprudence whatever. The origin of this decided preference of the English law, in favor of the heir or devisee, over the legatee or inheritor of personal property, is to be looked for in remote ages. . Among a people living under, the feudal system, landed estate constituted the predominant element in the social and political organization. And hence, we can hardly be surprised at the vast importance that was attached to its possession. The aggregate of the personal property then, embraced but a small portion of the wealth of the nation, while the few goods and chattels, that were possessed by the humbler classes, were insecure, and liable to be snatched away by the lawless, marauding barons. The lands were all monopolised and held by the strong arm of military power. Commerce had not then expanded her sails upon every sea, and in co-operation with the mechanic arts, and a more enlightened agriculture, swelled the wealth of the nation in personal property, to the enormous and incalculable amount that *69now exists. The feudal system yielded to the irresistible influence of advancing civilization ; but it yielded slowly, arid its stern features are still, and for a long period to come will remain, deeply impressed upon the civil polity of the British Isles. And even *here*in this new and distant land, and under our republican institutions, differing so widely from those of mediaeval ages, it not unfrequently imposes its rude shackles upon the administration of justice. Such is the origin of that preference, given by the English law, to the devisee over the legatee, and which discriminates unreasonably and unjustly between them. I have alluded to the vast increase, in modern times, of wealth in personal property in the United Kingdom. Its aggregate value now, greatly exceeds that of the real estate. This change in the condition of the country, as to the relative value of real and personal property, it might be supposed would lead to some modification of those distinctions which the law makes between them, and this result has happened to a very considerable extent : but, though the feudal system has passed away, leaving, however, its strong impress upon the institutions of our mother, country, there are causes still in operation, that impart to real estate an importance beyond its intrinsic value. The hereditary nobility constitute the great bulwark of the British monarchy ; *70the privileged classes form a barrier, that interposes between the throne, and popular encroachments and republican tendencies. The existence of their privileges, is identified with the prerogatives of the crown. They support the throne, not as their warlike ancestors did, by the sword and by military array, but by the influence of their enormous wealth, and their power as hereditary legislators. They are the strong pillars that support this ancient monarchy. Yolcanic and pent up fires smoulder beneath the venerable pile ; the waves of popular discontent dash madly round the foundations.- Take away the barrier, from which the surge is made to recoil; remove the weight by which the popular upheaval is repressed, and the flood and the earthquake would do their work in an instant; and this proud and powerful monarchy, in all its colossal proportions, would be swept away at once and forever. No reflective mind that has pondered upon the rise and fall of empires, can doubt for a moment, that the same revolutionarjr vortex that swallows up the British nobility, will also ingulf the British monarchy. These views are forcibly felt, if not acknowledged, by their enlightened statesmen and public functionaries. They are appreciated by the middle classes, and by all the friends of peace, order and *71stability, who hence submit to admitted evils and abuses, “ rather than fly to those they know not of.”

The British nobility are essentially a landed aristocracy. They have other forms of wealth of course; but their dignity and family pride, are made to rest principally upon their territorial domains. A landless noble is an unfortunate being. A Duke, a Marquis, or other hereditary peer, without a rental, is an object of contempt to his own order, and of ridicule to the classes beneath them. The same remarks apply, with greater or less force, to other orders of the nobility, and the gentry generally. Very great stress is laid upon their hereditary real estates. And no sooner has a tradesman, who has amassed a fortune, received the order of knighthood, or retired without that distinction,' — or a judge, or a successful soldier, enriched by the rewards of the State, been raised to the peerage, than they look about for investments in real estate. They purchase country seats, and their appurtenances, and hope to become the founders of aristocratic houses, and to transmit their honors and possessions to their posterity. It cannot be denied that — where orders of nobility are to exist — landed property constitutes the best form *72of wealth, and the most stable foundation on which the dignity of ancient and aristocratic houses can repose. Such an estate is less likely to be alienated or dissipated. With such an estate the owner can more easily identify himself, than with money or stocks. The capitalist cannot love his money, as an individual or a thing ; but the moral sentiments cluster thickly and strongly around ancestral halls and hereditary forests, lands, parks and waters. If such an estate is alienated from necessity or caprice, the price is soon dissipated, and the degradation of the owner from his castle, soon follows.

Thus, it has become a prevailing principle in the English law, to give preference to land, and a prevailing sentiment in the aspiring portion of English society, to seek that mode of investment. Hence their law of entails, and their laws of primo-gen-iture, the policy of which is to sustain their ancient aristocratic houses, by preserving their estates from alienation and disintegration. Hence the law, which exempted real estate from the payment of debts, except those secured by specialty ; and even in that case, the remedy of the creditor was restricted. And *73hence the principle, which has become the subject of enquiry in this case, by which a preference is given to a devisee, over a specific legatee, in the payment of the testator’s debts. None of the causes which in the mother country conspired to produce this unjust and unreasonable distinction, are in operation with us. We are far enough removed, both in the lapse of time and the form of our institutions from the feudal system, not to be fettered by its dogmas, where they are felt to be inconvenient, unreasonable and unjust; more particularly where, as in this case, we are not bound by any authoritative decision of our own Courts. The statute *de donis conditionalibus*has never been of force in this State. We have abolished long since the law of primogeniture. Our law of descent is adapted not to aristocratic, but to republican forms of society. Its policy is rather to pull down, than to build up and sustain, great and overgrown estates. By the Statute 5 Geo. 2, Ch. 7, A. D. 1732, we have abolished all distinctions whatever, between real and personal estate, in the payment of debts. By its provisions, lands are declared to be assets for satisfying the claims of creditors, and are made liable to execution, “ towards the satisfaction of such debts, duties and demands, in like manner as personal estates in any of the said plantations respectively, are seized, extended, sold or disposed of, for the satisfaction of debts,” (2 Stat. 571.) In the construction of this Act, our Courts have held (and this has long been the settled law,) that the lands of an intestate, which have descended to the heir, or of a testator, which have been given by will to a devisee, may be levied on and sold by the sheriff, Under an execution against the executor or administrator, without making the heir or devisee a party to the proceedings, by notice or otherwise; although there may be sufficient personal assets to satisfy the debts. *Martin*vs. *Latta,*(4 McCord, 128 ;) *jD’ Urphy*vs. *Nelson,*(ib. 129, *note.)*The Stat. 5 Geo. 2, and the judicial interpretation it has received, have placed real and personal property upon precisely the same footing, as it respects the compulsory satisfaction of debts. Every portion of a testator’s estate is liable to his creditors. In regard to them, the ques*74tion, as to which fund is primarily liable, does not arise. And they have the same facilities of relief, in the way of process,- for enforcing payment against the one, as against the other.

Such being the state of our law, and its policy on this subject, is there any thing in justice or reason which would, as between a devisee and a specific legatee, subject the property given by the testator to the latter, to the payment of his debts, to the exemption of that given to the former, by the same benefactor ? Lands have not here that, adventitious value, which for causes we have investigated, obtains in the parent country. They are not more valuable than personal property; than negroes, for example. Indeed the latter, if facility of converting them into cash, at an established marketable value, may be considered a test, are the most desirable of the two. Setting aside the reasons to be derived from the social polity of England, past and present, is there a single argument by which the distinction can be vindicated? Is there any sound legal philosophy which supports it ? Is it not opposed to justice and condemned by reason ? Where a testator gives a tract of land to one, and a chattel to another of his friends, by the same specific form of language, and. a description which identifies both, a rule that would make one of those gifts liable before the other, for the payment of debts, is nothing less than absurd ; except, indeed, ■where the rule has originated in some great and controlling policy. If the testator indicates which fund shall be primarily liable, it is, of course, a different question ; for his will is the law of the case. But the distinction, which is obnoxious to the charge of absurdity, is where both are given in the same form of language, without any expression from the testator, as to which fund shall be primarily liable. Let me illustrate by an example. The testator says, “I give and devise to my son, Michael, my house and lot, in the town of Columbia, on which I live,” &c. “ To' my daughter, Mary, I give and bequeath the following slaves, namely, Tom, Dick, Bet,” <fcc. The testator dies indebted to the value of the slaves, which he intended as a provision for his daughter who must now remain portionless, *75and be turned a beggar upon the world, because her legacy, although as specifically intended for her, as the real estate was intended for the son, is, by the rule, primarily liable. Is it not the better and more equitable rule, that the devise and legacy should abate *pro rata ?*I dare affirm that the rule which, in such a case, would subject the legacy to the exoneration of the devise, would, in nine times out of ten, defeat the intention of the testator. When a testator gives his legatee a specifically described negro, he as clearly means that his legatee shall have and enjoy that particular negro, as when he gives to his devisee his land. Where the testator has not intimated the slightest distinction between them, nor hinted which would be primarily liable for debts, upon what principle of justice can the Court interfere, and say that the one of those two equally favored objects of the testator’s love and bounty shall pay the debts — even to the entire exhaustion of his share, and to the exemption of the other? There is no principle upon which such an interposition can be justified. The intention of the testator, we are taught, is the pole star in the construction of wills. We carefully and laboriously seek it, through all the obscurities of language, and by rules of interpretation that are sanctioned by reason and experience. And when we have found the intention of the testator, we are obliged to enforce it; unless, indeed, it be that such intention be contrary to the policy of the law. But in this case, we are called upon to violate the manifest intention of the testator, not because that intention is opposed to the policy of our own laws, but because such a decision would be more in consonance with the policy of a distant and alien land.

If we were trammelled by precedents and decisions of our own Courts, the case might present a more dubious aspect. But I have looked over the reported decisions, and do not find that this point has ever been made as an issue and adjudicated by the Court. *Dicta*there are, contrary to the conclusion to which my judgment has led me. But opinions upon collateral questions of law,, expressed, arguendo, by the Judge, who acts as the organ of the Court, in delivering its judgment, cannot .be con*76sidered. more authoritative than his own individual and private opinions. Indeed it is exceedingly unfair to consider them the result of his own settled and deliberate judgment. Such collateral matters are not discussed before and adjudged by the tribunal that decides the case, and oftentimes are but slightly considered by the Judge who expresses his opinion upon them. Therefore, upon the soundest principles, they are regarded as fallacious guides. I would not impugn the decisions in which their *dicía*have been expressed, nor deny that, as a general rule, personal property should be the primary fund for the payment of debts. But I say that the rule should admit of some qualification, and that a specific legacy of personal property should be liable only, *pari passu,*with a devise of land ,• and not *liable at all, until other*assets, real or personal, not specifically disposed of, or charged with or devised for the payment of debts, are exhausted. It is said by the Lord Chancellor, in *Harmood*vs. *Oglander,*(8 Yes. 106,) “that in the administration of assets, ordinarily, the first fund applicable, is the personal estate, 'not specifically bequeathed; then land devised for the payment of debts, not merely charged, but devised or ordered to be sold; then descended estate; then lands charged with the payment of debts.” It is obvious, therefore, that even in Eng- . land the intention of the testator is respected, and the legatee is protected, except where he comes into conflict with the devisee; in which case, the latter is exonerated until the interest of the former is exhausted. For such a distinction, I see, as I have said, no reason applicable to the state of circumstances existing in this country. In *Warley*vs. *Warley,*(Bail. Eq. 400,) Chancellor Harper, in allusion to the rules prevailing in the English Court, in the administration and marshalling of assets, says, “ we have adopted the English rule to a considerable extent; but the approximation of real and personal estate, in descent and in other particulars, has shaken the rule a good deal.” From which I infer, that it was the opinion of that philosophic jurist that our Courts were not, in the altered circumstances of this country, bound to follow the English decisions on this subject.

*77It was urged, in the argument of this cause, that the first clause of G. H. Hull’s will, in which he expressed his wish that his executor should “ out of his estate, pay off all his just debts and funeral expenses,” was an indication of an intention that the personal estate should be primarily liable; because the real estate not being devised to the executor for this purpose, nor any authority given to him to sell it, the implication is, that he meant that the executor should pay the debts out of the personal estate only. This construction is somewhat specious, but it .does not strike me as correct. The word *“*estate,” embraces the realty, as well as the personal property. The words of the clause would, in England, be sufficient to charge the real estate, in cases where it was exempt. And if so, the construction contended for, cannot be the true one. I cannot suppose the testator to have entered into the nice legal distinction which this meaning would imply. I think it clear that he thought his devises and specific legacies would remain intact, and that the general residuary estate, would be sufficient to pay his debts.

After a great deal of deliberation, I have adopted the conclusion, intimated in the foregoing remarks, to sustain the first exception of the defendants, which is accordingly done.

The third exception of the defendants is, “ because the Commissioner, in ascertaining the value of the real and personal estate, devised to defendant, Zulina, has estimated the fee simple value thereof; whereas, it is submitted, that she could have the enjoyment of the property, but for life, without the power of disposing of it at her death, and that her interest therein, should have been estimated and valued accordingly.” The appeal decree directs the Commissioner to ascertain and report *“*the nett value of the devises and legacies to Zulina; and the excess received by her, over one-fourth of the testator’s estate, clear of debts.” The same decree has adjudged that she takes - a fee conditional in the real, and a life estate in the personal estate. In regard to the personal estate, the children of Zulina, if she had any, would take as purchasers. In regard to the real estate, they, would not'take as purchasers, but by way of *78limitation, and *per formam doni.*If she takes a fee conditional, as she does by the express terms of the appeal decree, as well as upon principle and authority, then the ulterior limitations over in the event of her dying without issue, are void. A remainder cannot be limited after a fee conditional. The only abridgment of her interest in the land, is its being reduced from a fee simple to a fee conditional. The question then occurs, whether, in valuing her interest in the real property, there is to be any deduction in its estimated value, in consequence of its being a fee conditional, instead of a fee simple. If Zulina Hull, (now Bryan) should have children capable of inheriting this fee conditional, then she may alien and bar the issue. It then becomes in marketable value and for all practical purposes and uses, equal to a fee simple. If she does not alien, it is true that she can not devise it; but, on this contingency, it must descend to her issue, *per formam doni.*If she suffers it thus to descend without exerting her rights of alienation, it will be her own election, and she cannot complain. If she forbears to bar the issue, having the power to prevent the descent, it may be considered as her own voluntary disposition of the *estate;*and it will go as most persons would desire their estates to be disposed of after death. The only feature that can depreciate the value of a fee conditional is, the possibility of a reverter, to the heirs of the testator. This reverter is not considered in law as an estate. It is too small and remote an interest to have that character impressed upon it. It is too remote and contingent to be valued. There is no appreciable interest left in the donor. I do not know by what process, or mode of calculation, we could estimate the value of a possibility of reverter to the testator. The value of the possibility of reverter constitutes the only difference between the value of an estate in fee simple, and an estate in fee conditional. It is admitted that Zulina has, at this time, a child or children. If she has, her fee conditional estate, for all practical purposes, is worth as much as if she held it by a fee simple title. There was no evidence as to the birth of children, but the fact was admitted at the trial. At all events, *79she being a young woman, and married, the contingency of a reverter of the estate is exceedingly remote. I think, therefore, that the principle on which the Commissioner valued the devise was correct.

The case is very different as to her legacy. The Court of Appeals has adjudged that she takes only a life estate in the personal property. It has gone farther, and has adjudged that the remainder to her children, after the termination of her life estate, was to be excluded in the valuation of the fourth of her father’s estate, which she is entitled to retain under the provisions of the Act. . The language of the decree is most explicit. “ But,” says the Court, “ if we should take into consideration bounties of this remote description, we should entangle ourselves in inextricable difficulties in the application of the statute. And we deem it safer to hold, that the interests of the children of Zulina, who take as purchasers distinctly from their mother, and not through her, and in connection with her, shall not be considered as a gift to her.” In connection with this part of the decree, the direction to the Commissioner to report the nett value of the devises and legacies to Zulina, has a meaning and an object. It will be perceived that the language of the. passage quoted, repels the idea of excluding from the valuation the interest which the children take in a fee conditional; where they do not “take as purchasers distinctly from the mother, but through her, and by way of limitation.” While the principle is as distinctly declared, that where a life estate is given to the parent, with remainder directly *to the*issue as purchasers, the life estate is alone to be regarded as a gift to the parent. There are familiar and practical modes by which the value of a life estate may be ascertained. The process, though in some degree necessarily arbitrary, is every day resorted to in the Courts both of law and equity. Approximation is the only thing possible, or that is aimed at, in such estimates. The Commissioner was in error in placing the fee simple value on the negroes given to Zulina by testator’s will. So much, *80therefore, of the exception of Zulina, as relates to the valuation of the negroes bequeathed to her, is sustained.

The fifth exception of the defendants is, “ because the defendants, Bryan and wife, have a right to select out of the property devised and bequeathed to the wife, the particular property which they prefer to keep; and, in throwing off the excess of one-fourth, they have the same right to point out what ■property is thus rejected. In this case, said Bryan and wife elect to take in the first place the whole personal bequest to her, and the: balance in real estate.” This exception raises another difficult question. It is singular that an Act so short, and apparently so simple in its provisions, should have given rise to so much litigation in. the Courts,' and so many difficulties in its construction. I can scarcely hope to pass through the labyrinth of difficulties presented in this case, without falling into some error. The question made in this exception seems to have been decided in favor of the exceptants, in the unreported case of *Gardner*vs. Atkinson, (MS. Decisions, Book B. p. 340, Columbia). I have not seen that case. It is quoted by Ch. Johnston, in his circuit decree in this proceeding, (2 Strob. Eq. 187.) I should not consider the principle of construction, that obtained in that case, *Gardner*vs. *Atkinson,*entirely free from doubt. There are difficulties ; but, upon the whole, I incline to think that [the decision may be supported, as the correct, interpretation of the Act. As Chancellor Johnston has said, in his circuit decree in this case, “ it is the amount or value of the excess over one-fourth that is declared void, and if the bastard will pay up that excess in value, he is entitled to the devise of the whole estate.” The Act does not declare that the gift shall be void for the excess over one-fourth, but “ that it shall be null and void, *for so much of the amount or value thereof,*as shall or may exceed such fourth part,” &c. It appears to me, that •there is significancy in the peculiar form of the phraseology, that I have placed in *italics.*

The Act does not say in words what disposition is to be made of the portion of the gifts to the illegitimate child, that is *81declared void. That is left to implication. But, by judicial construction, it is not absolutely null and void, but voidable, at the instance of the lawful wife and children. In *Owens*vs. *Owens,*(MS.) it was held that the will of a testator was good and valid against all the world, except as against the lawful wife and children. And in *Breithaupt*vs. Bauskett, (Rich. X Eq. 465,) it was held, by Chancellor Harper, that the right to vacate the gift for the excess, was so entirely a personal privilege to the wife and children, that it did not survive to the executor.

The force and effect of these decisions, and of this construction is to establish this principle, that the lawful wife and child 3n are not joint tenants, or tenants in common, with the illegitimate child, where the gift exceeds the fourth of the testator’s estate. If the Act constituted them joint tenants, or tenants in common, the estate or interest of the wife and lawful children would, on their death, descend to the heirs at law, or, in case of a chattel, be transmitted to the personal representatives. The right then of the wife and lawful children in such a case, is not an estate or vested interest. It is not devisable, descendible or transmissible; is it even assignable? If it is, and should not be recovered in the life of the party assigning, the assignment would be defeated. What, then, is the interest, which the wife and lawful children .take in the gift to the bastard, where it exceeds a fourth ? It is anomalous, and difficult to be defined. It may be called a claim entirely personal to them, to which they are entitled under the restrictions which I have above expressed; a claim to call on the illegitimate child for *“ the amount*or value,” of what said child has received over the one-fourth part of testator’s estate. The legal title of the bastard is good and perfect, subject only to this purely personal equity, created by the Act, in favor of the wife and lawful children. If they obtain the excess over the fourth in “ amount or value,” is not the spirit of the Act as. well as its words satisfied?

Suppose that the bastard takes, by the will, houses, lands or *82chattels, which exceed the fourth, by an inconsiderable amount; Will it be said that pecuniary compensation for the excess would not satisfy the requisitions of the law *1*Or suppose, as in this case, the bastard takes negroes by the gift, to which she is, or may be attached, as well as lands, as the claimants have no legal title or estate in any of the property; may she not say to them, I will satisfy your claim out of the lands *1*It seems to me that Bryan and wife have a right to elect what property they will keep, to make up their lawful fourth, and to throw off the excess. This exception is sustained.

I come now to the consideration of the exceptions on the part of the complainants. The first claims an unqualified right of partition of the property, on the part of the complainants, with an account of rents and profits. I have already decided this question, in my decision upon the fifth exception of the defendants. The unqualified right to a partition would pre-suppose that the wife and lawful children had an estate or vested right in the property, to the amount of their claim. This, we have. seen, is not the case. There are circumstances in which partition may be proper, and even necessary, and where the Court will resort to this process, as a means of obtaining the proper and necessary results. It must be subordinate to the right of the illegitimate child, to elect what property to retain, to make up the fourth, and what she will throw off; and also to satisfy, by pecuniary compensation, the excess in amount or value over the fourth. If the bastard refuses or omits to throw off, or to give pecuniary compensation for the excess, partition may be resorted to, in the discretion of the Court, for the purpose of dispensing justice among the parties. This exception is overruled.

The complainants’s second exception is, because, “ even if the plaintiffs have no right to partition of the specific property given to the defendant, Zulina, by the will of Gideon H. Hull, they are at least entitled to such proportion of the income and profits thereof, accrued since his death, as the excess of the provision for her above one-fourth part of the clear value of his whole estate bears to the whole value of such provision, in lieu of inter*83est. upon the sum at which such excess is estimated.” As a result of the decisions on this statute, and of the principle that the right of the wife and lawful children is a mere personal claim, awaiting their demand, and that they have no estate in the property, I doubt if they are entitled to interest or rents and profits until a demand is made. Of this they could not complain, as in the most of instances it would be their own default, if the demand was not immediately made. On this point, I express no opinion, but say that they are entitled to interest, or an account for rents and profits, (if entitled at all) according as the illegitimate child may elect to make pecuniary compensation, or a partition of the specific property be resorted to as a necessary process, to ascertain and put them in possession of their rights. This exception is overruled.

It is ordered and decreed, that the report be re-committed to the Commissioner, and that the parties have the rights belonging to them, as declared in this decree, and that the report be re-formed and made conformable to the principles herein above set forth.

The complainants appealed, on the grounds,

1st. That the decree is erroneous in deciding that lands, specifically devised, are chargeable, and must contribute for payment of the testator’s debts, rateably with personalty specifically bequeathed, where the will does not otherwise direct.

2d. That, according to the correct construction of Gideon H. Hull’s will, the entire personalty of his estate is charged primarily with the payment of his debts, and must be exhausted before any contribution for that purpose can be exacted from the real estate devised.

3d. That, instead of the excess in value of the provision made for the defendant, Zulina, by the will of Gideon H. Hull, above the one-fourth part of the clear value of his estate, estimated in money, with interest thereon, the plaintiffs are entitled to have partition made between her and them of the specific property given to her by the will, and an account of the income and profits of the same, accrued since the testator’s death.

4th. That the decree errs in sustaining the fifth exception of *84the defendant, Zulina, to the Commissioner’s report, the law admitting no such right of election on her part as is set up by that exception, and recognized by the decree.

The defendants also appealed, on the ground,

As to that part of the decree which sustains the Commissioner’s report, and overrules so much of defendants’s third exception to that report as relates to the valuation of the interest which Zulina Bryan took under the will in the real estate devised to her, the defendants submit, and will endeavor to maintain, that the interest she took in the real estate devised to her. whatever be its legal character or denomination, is less than an absolute or fee simple title; that, at the death of the testator, it was practically, at most, but a life estate to an unmarried female infant, about ten years of age, with the capacity of becoming enlarged to a fee simple, upon her living to the age of twenty-one and having lawful issue. The estimated value of these contingencies should have been ascertained by the Commissioner, and deducted from the intrinsic value of the lands.

Carroll, Yancey, for complainants.

*Bauskett, Gray,*for defendants.

(A)

a) The following case, bearing upon the applicability of the personal estate, before the real estate, in the payment of debts, is subjoined by way of note to the above' case:

*66*E. W - et al.*vs. *F.*H-.

*Before*DbSaxjsstjee, Oh., *at Newberry, June,*1819.

This bill was filed to set aside the sale of a tract of 250 acres of land of the testator, sold under execution against the defendant, as administrator *cum testamento annezo,*of the estate of the testator; and also to compel the defendant to account for the value of another tract of 138 acres, of the testator, also sold under execution against the de-lendant.

The testator died in the latter part of the year 1804, leaving a last will and testament, by which he devised the two tracts of land aforesaid, to the complainants, his widow and children ; and, after payment of debts, the remainder of his estate to his widow and children. The executor named in the will having refused to qualify, administration with the will annexed was granted to defendant, who, in Feb’y, 1805, made sale of the personalty to the amount of $833. The defendant *67afterwards confessed judgment on two notes of the testator, apparently for a considerable sum, but on which there was due only a very small balance. Under the execution issued on this judgment, the two tracts of land were sold by the sheriff — the tract of 250 acres to the defendant himself, and the tract of 138 acres to one C.

DeSaussure, Ch. It was shewn by the very clear report of the referee, Mr. Farnandis, that there was a large balance of the personal assets of the estate in the hands of the defendant; much more than enough to have paid off the balance due by the estate of the testator, on the said judgment, if it had been applied to the payment. But the funds of the personal estate were not so applied ; and levies were made on two tracts of land belonging to the testator’s estate ; .one containing 138 acres, and the other containing nearly 250 acres, but levied on, the 14th June, 1808, as containing 100 acres. The two tracts were put up to sale, by the sheriff of Newberry, and sold, 7th Aug, 1809. ■ The former tract (of 138 acres) was knocked off to one C. for $472; which was a small price. The other tract of (of 250 acres) was knocked off *68at $126, to Mr. J., who was bidding for defendant, the administrator. The land was conveyed to defendant, by the sheriff, and has been kept by him ever since as his property..

It was fully proved that this tract of 250 acres, purchased by defendant at the sheriff’s sale, for $126, was worth at the time of the sale, at least *$7*more per acre, which would amount to $1750 ; and is worth, at this time, at least $13 per acre, which would amount to $3250.

It was also proved that defendant not only did not pay the debt on judgment out of the personal estate, but pointed out the lands to be levied on and sold to pay the debts ; and that he employed Mr. J. to bid for him, without informing him that himself was administrator, but assigning as a reason for his request, that if he bid openly, himself, others would run up the land upon him to a high price. Mr. Fernán-dis, who thought the land worth $8 per acre, at the time of the sale, did not bid, because he saw Mr. J. bidding, with whom he was intimate, and did not choose to interfere.

Upon this state of facts, supported by proofs, it is contended by the *69complainants, that the sale of the 250 acres, was fraudulent and void. After a careful examination of the facts, it appears beyond all doubt, that there were funds arising from the personal estate, in the hands of the administrator, which were more than sufficient to have paid the debts; and at all events to have satisfied the judgments. That — even if that had not been the case — the sale of the tract of 138 acres (bought by C.) was more than sufficient to pay the debts. No necessity, then, existed for the sale of the 250 acres. Yet, it appears, that the administrator, who ought to have protected the estate, not only did not perform his duty, by paying the debt, but pointed out the land to be levied on and sold under the execution.

The levy was made on the tract as containing only 100 acres ; and Mr. Farnandis, (then in the sheriff’s office,) proved that it was usual to set up land at the quantity represented.

How this error arose, does not appear. But the administrator — who was intimately acquainted with the affairs of the estate, and with the land — might have corrected it.

*70The witnesses do indeed sa.y, that they did not see any improper conduct in the administrator on the day of sale; or hear him make any misrepresentation. That might be avoided by an experienced man, who was endeavoring to force a sale of land of the estate in his hands, that he might b,uy it in at a Very low price. The evidence of the facts —the *evidentia rei*— is irresistable in the case. The non-application by the administrator, of the *assets*in his hands — which were more than sufficient to pay the judgment — raises a violent presumption against him. His pointing out, and permitting the land to be levied on and sold, for a very trifling balance on the judgment, increases that presumption. His not bidding, himself, because he feared that other persons might then bid on him, and run the land up to a high price, shews a settled design to get the land as low as possible. His employing (by what appears now to be an imposition on him) privately a third person, a gentleman of most respectable character, who was ignorant of his situation as administrator, and did not know the land, to bid for him, proves a deliberate prosecution of that design. And when that friend had bid in the land, at ten times less than its then value, his taking advantage thereof, and accepting an absolute title to himself, is the *71completion of the scheme, which was to enrich himself, at the expense of the widow and the orphans, whose estate and whose interests he had in charge.

It is wonderful that a person of so much understanding, should be so blinded by interest, as to beguile himself into a belief that such transactions could escape the scrutinizing eyes of Courts of justice.

It is the duty of this Court to correct such transactions; and that duty must be performed. It would be a disgrace to the administration of justice, if this were not uniformly corrected, when brought to the view of the Court.

The administrator had no right, in the confidential relation in which he stood, to become the purchaser; at all events, not under such circumstances as he appears to have created, or availed himself of, to gain a most advantageous bargain to himself, to the great loss and ruin of the widow and children, whose personal estate was in his hands, and might, and ought to have been applied to prevent the sale of the land altogether.

It was alleged by the counsel for the defendant, that if the Court should set aside the sale, and order an account for rents and profits, it would be proper to make some allowance to the defendant for his improvements. This defendant is not entitled to any favor from the Court; but he is *72entitled to justice ; and if he has made any valuable and durable improvements, beneficial to the complainants, he ought to be allowed some compensation for them. That must be the subject of further examination.

It is ordered and decreed that the purchase made by the defendant, at sheriff's sale, of the tract of 250 acres of land, be declared null and void, and set aside; that the defendant deliver up the sheriff’s conveyance to him to be cancelled; that he deliver quiet possession of said land to the complainants ; that he account before Mr. Farnandis, the referee, for the rents and profits thereof, (in which account he shall be allowed all reasonable deductions for actual expenditures, and improvements on said land, beneficial to the complainants.)

It is further ordered and decreed, that all the matters of account between these parties be referred to Mr. Farnandis, to settle and adjust, including the price of the land purchased by C.

This defendant to pay all the costs of suit.

An appeal from this decree1 was heard at Columbia, December Sittings, 1819, when it was affirmed by the whole Court, consisting of Chancellors DeSaussuue, Waties, Gaillaud, Jabíes and Thompson.

O'Neatt, for complainants,

*Crenshaio Sf McDvffie,*for defendant.

Johnston, Ch.,

delivered the opinion of the Court.

Of the numerous questions presented by this appeal, the only one argued was that respecting the relative liabilities of real and personal estate to the payment of the debts of a deceased.

Before proceeding to the more particular discussion of it, it may be proper to bestow a passing attention upon the direction of the testator, that the executor, “ out of his estate, pay off all his just debts and funeral expenses.” In the absence of any specific indication of the fund out of which the payment should be made, this direction is some evidence of intention that the executor should employ the personalty, which is at his disposal, as the means of accomplishing the end pointed out.

“If,” says a respectable elementary writer**“*the executor is pointed out as the person to pay, that excludes the presumption *85that other persons, not named, are required to payand *“*if the testator directs a particular person to pay, he is presumed, in the absence of all other circumstances, to intend him to pay out of the funds with which he is intrusted, and not out of other funds, over which he has no control.”

The distinction, though nice, is — as this author justly observes — clear in theory, however difficult in its application to particular cases.

But, without the aid of this clause, the majority of the Court is prepared to sustain the proposition submitted in argument by the plaintiffs’s counsel; that, in the administration of the assets of a testator, who has given no specific direction on the subject — as between legatees of the real and personal estate — the personal estate is liable for the payment of debts, before resort to the realty.

It is hardly necessary to remark that creditors are not concerned in the question. The Chancellor has properly observed that “ every portion of a testator’s estate is liable to creditors,” and, therefore, “ in regard to them, the question as to which fund is primarily liable, does not arise. They have the same facilities of relief, in the way of process, for enforcing payment against the one as against the other.”

It is stated in the decree — and it is true, beyond controversy— that, by the law of England, (which is our law, except so far as we have modified it,) personal estate is the primary fund, as between personal and real estate, standing in the same circumstances.

Has this law ever been abrogated or modified in this State ? Until the present time, I believe it has been received and accepted as the unquestioned law of the land, both by the community, the profession, and the Legislature ; and, if there has been no express adjudication on the point now presented, it may be accounted for by the fact, that the doctrine was never doubted; and, therefore, the question was never raised.

It is not perceived that the legislation of this State has abolished the distinction between real and personal property, in respect to their administration.

*86It is true the statute *de donis*has not been adopted by us. Fees conditional, unless alienated by the tenant, or charged by him in his life time, as it is said he may-do,* descend, upon his death, *per formam doni;*and though, by the Statute 5 Geo. 2, ch. 7,† (of which I shall speak hereafter,) they may be as liable, in the hands of the special heirs, as lands held in fee simple are liable in the hands of the heirs general (which may be doubted) ; this does not prove that they are equally liable with personal estate.

It is also true that we have altered the law of descent as to real estate. The inheritance is no longer confined by primogeniture, but falls equally upon all the children. Does it follow that the intention was to strip the children of their inheritance,— to abolish the distinction between this species of property, — • which is in its nature inheritable, and goes to the heirs, and the chattel property, which goes to the personal representative, and in which the issue of the deceased have only an interest resulting to them, after the representative -has performed his duties out of it ?

The Statute 5 Geo. 2, ch. 7, § 4,‡ is no proof (further than that it has not been repealed by us,) of the *policy of this State.*It was enacted by a foreign legislature in 1732, while we were yet a colony. It has express and exclusive reference to the interests of creditors, and was probably intended to give confidence and security to the English merchants with whom the colonists dealt. There is nothing in it to affect the relative liability of lands and personal property, as between the heirs and distribu-tees, or the devisees and legatees ; and, as we have before observed, the question as between them is one in which creditors have no concern.

The decisions upon this statute, to which the decree refers, (which, by the way, have been greatly modified,)ǁ recognize the distinction between the liability of lands and chattels. How then can they be authority for the position that there is no distinction?

*87The earliest of these decisions adjudged (though with a strength that has been diminished by subsequent cases,)* that an execution obtained by a creditor against the personal representative of his deceased debtor, might be levied upon his lands, in the hands of his heir, or devisee, though the heir or devisee was no party to, nor had notice of, the suit in which the execution was obtained, and though there were personal assets in the hands of the representative to satisfy the debt.

It is, perhaps, unfortunate that the cases alluded to, occurred in, — and that the questions involved in them, were consequently presented to, — a law Court. Had the creditor brought his case in equity, where perfect relief could have been administered with reference to the rights of all parties concerned, he might have brought in not only the heir, but the executor, and the decision would have been such as not only to secure the creditor in all his just rights, but to adjust the liabilities of the heir and executor according to the relation subsisting between them, and arising from the assets received by them, respectively.

The earlier law decisions to which I have alluded, did not, it seems to me, sufficiently distinguish, between the liability of the laud, created by the statute, and the remedy; or means of enforcing that liability. Too much stress was laid on the *mere words*of the statute, as respected the remedy.

No doubt exists that lands are made liable under the statute, but the material question in this case, was in no respect within its provision; and that question is affected by the decisions referred to in the decree, only so far as they affirmed the right of the creditor to sell the land in the hands of the heir, or devi-see, under a proceeding against the administrator or executor alone.

These decisions have never been satisfactory to the profession.† To sell a man’s land for debt, without impleading him, when the land was not bound by a judgment when it came to his possession, and when assets are, or may be, in the hands of an agent expressly appointed by law to pay the debt, is against *88common right. The Courts have, on several occasions, expressed their regret that the decisions were ever made, and declared théir determination never to extend them, and have, in fact, materially restricted them. The decree, in this case, violates deliberate opinions thus expressed, by assuming that the decisions, are unexceptionable, declarative of the true policy of the State, and entitled to be extended to new results, beyond the points decided.

These decisions do not determine that the land — though liable — is not the secondary fund. The Judges were of a different opinion. It was not decided in these cases, nor could it be decided in a law forum, at least in such a proceeding, that the heir or devisee had no recourse over against the executor, or against the legatee, to whom the executor had paid the personal assets. The only judgment given was, that the land was liable to the unpaid creditor. Upon the Chancellor’s own principle, the heir was entitled to an after proceeding for contribution. This is proof that there is a right to recover over. Is there any thing in the decisions referred to, to shew the extent of this right, to shew that it is limited to an equal contribution, and shall not go to the whole loss sustained by the heir ? If not, then those decisions have determined nothing on the questions we are now discussing.

Taking those cases (I still mean the earlier cases quoted in the decree) to have decided nothing more than that the land of a deceased was liable for his debts, (and this is all they did decide,) their only fault was, that the judgment was made to bear upon a party who was never impleaded. The error in this decree consists in extending those decisions, by inference, into adjudications that land is equally liable with personalty for debts — when that point was not, and could not have been, adjudged in the cases.

The decree is not only confessedly contrary to the law, as we borrowed it from England, but is, as we have just shewn, unsupported by the cases referred to, to sustain it.

What else is there to support it ?

*89The argument is that it is demanded by our peculiar policy.

At an earlier period of my judicial life, I would have said roundly — as I have perhaps somewhere said — that questions of policy are exclusively for the legislature, and that the sole duty of the Courts is to declare, and not to reform, the law. Greater experience has chastened and modified many of my earlier opinions; and among others, to a slight extent, those bearing upon this subject.

While the legislative power extends to all questions of policy, and while to the legislature belongs the right to alter and reform the law, at their discretion, with no other limit than the constitution, the judicial power, as it had always been exercised by Courts of justice, was vested, by the constitution, in the judicial forums.

It is their province to declare the law. But the law has never been stationary. It is, and has ever been, actuated by certain great cardinal principles ; and it is, and ever has been, the function of Courts of justice to apply these principles to the affairs of men, brought under their cognizance, as they may be varied by their circumstances, or the circumstances of the community, or the age.

By this process it must necessarily occur, that in the application of the leading or elementary principles, some subsidiary or secondary rules or principles, become, in the progress of time, more developed or perfected, and others more restricted, according as they serve, more or less, to promote and administer the great ends of forensic justice. ■

Sometimes a new subject, fit to be brought under judicial cognizance, is discovered, which had hitherto escaped observation, although the law of the forum fully embraced it. And sometimes a remedy is brought to view, which had not been hitherto administered, but which the powers of the Court enabled it, upon principle, to administer, and bound it to administer. Sometimes the legislature introduces, by statute, a principle, or enacts a measure, as a measure of policy, leaving the principle or the measure, to be carried out to its legitimate results.

*90What is a Court to do *1*It is its shame, if possessing light, it does not discern its duty; and, if possessing the power, it does not employ it to the purposes for which it was created. It is its glory, if calling into exercise the great principles at its command, it so employs them as to advance the remedies within its jurisdiction.

Such an exercise of power has been called legislation — bench-made law. It is unjustly so denominated. It does not originate policy, but perfects it. It does not generate reforms, but carries them out. It does not create principles, but develops them. It is *bench-declared*law, not inferior in authority, or in excellence, to any other. Its progress is gradual, and occasions no sudden revolutions, to the surprise, or ruin, of the interests of society. Being the offspring of acknowledged principles, it commends itself, by the power of those principles, to those to whom it is applied. And being tested, at each step of its development, by practical experience, it may be modified, restricted or amplified, as that experience dictates.

These functions may be performed by the bench ; and rightly, usefully, and, I add, constitutionally performed. But the work must be done gradually, and with a constant regard to precedents, and an anxious reference to first principles. Sudden changes, great changes, changes looking to reform, or dictated by policy alone, belong exclusively to the legislature. To the Court belongs the development of pre-existing principles.

Then, what principles have we on which to rest the great innovation proposed by the decree ?

If we look to the origin and history of administration, or to the apparatus by which it always has been, and now is, accomplished, or to the respective qualities of real and personal property, we shall be led to conclusions very different from those proposed for our adoption. If we look to precedents, and to the opinions of our own Courts, and the action of our own legislature, we shall perceive what surprise and revulsion of property interests, and what inconvenience in the administration of estates, the adoption of that proposition would occasion.

*91Administration was originally confined to personal property, and the course and subjects of it have never been altered, except by statute. It was performed by the Ordinary, originally, at his discretion; then, according to a course prescribed; after-wards by deputies appointed by him. The duties of these administrators, except when named by a testator, were secured by bond, according to the value of the personalty.

To accomplish the purposes of administration, the personalty vests in the personal representative, as its legal owner. Why ? To give him that control necessary to the perf of it. Only an equitable interest falls to the ; tee, to be enforced after the payment of debt§

This is the quality of personalty. Is it, estate ? No. That descends to the heir, vest in the personal representative; nor hasS such property, except what may result from the will. If it is devised, unless devised to the executor, or power is given him to dispose of it, he has no power to interfere with it, and the devisee takes it without his assent.

This distinction, in the qualities of the two species of property, forms one reason of the relative liability for debts. The executor has the control of the one and not of the other.

Are there no other reasons why land should be more favored than chattels ?

May it not be for the interest of infant or female devisees, to have their portions in that species of property, which is more permanent in its character, less subject to be eloigned, or devastated, upon which the marital right of the husband of a female heir would not so fully attach, and which cannot be alienated without her express consent after attaining majority ?

May it not be for the benefit of estates, that the debts be paid primarily out of that species of property which is more perishable, and more subject to be eloigned or devastated ; and which, as we all know, and as the decree states, is more saleable, and is less liable to be sacrificed.

Is nothing due to sentiment ? Is the home of one’s ancestors, *92the place of one’s nativity, with which all the recollections of childhood are associated, to be put on a footing with vulgar chattels ?

The decree, in putting real and personal property upon the same footing, disregards the distinctive qualities of the two species of property. Can any sagacity foresee the results ?

Aliens are incapable of taking real estate by inheritance, but may take personalty. Is it not desirable to reserve, to those taking under a will, that species of property to which allegiance is annexed ?

How will the proposed alteration affect' the widow’s right to take dower by election ?

Will it not augment the necessities for that election, and call for the choice at an earlier period in the administration, when it will be more difficult to make it ?

Then, the decree establishes a principle, as I have said, contrary to the constant current of professional opinion, to the practice of our Courts, and to the legislation of the State. As evidence that it is contrary to the opinion of the profession as represented by the Judges, (besides referring to what is said in this very case,* — which is almost almost a decision for (he case— and to what is said in *Laurens*vs. *Magrath,**†***which is almost a decision of the question,) I have only to refer to *Stuart*vs. Carson,‡ decided in 1796, and to the long current of cases which have followed it, as *Haleyburton*vs. Kershaw, (3 Des. 115 ;) *Dunlap*vs. *Dunlap,*(4 Des. 329 ;) *Hall*vs. *Hall,*(2 McC. Ch. 269;) *Warley*vs. *Warley,*(Bail. Eq. 397 ;) *North*vs. *Valk,*(Dud. Eq. 212;) *Gregory*vs. *Forester,*(1 McC. Ch. 329;) *Goodhue*vs. *Barnwell,*(Rice Eq. 240;) *Pell*vs. *Ball,*(1 Sp. Eq. 523 ;) and *Jenkins*vs. *Hanahan,*(Chev. Eq. 135.)

' What is said in these cases, though it may not amount to decision, gives unmistakeable evidence of settled opinion; especially the elaborate and most, enlightened view taken of the subject in *Warley*vs. *Warley,*which has' never before, so far as I know, been disputed.

*93The decree is also contrary to the practice of both Courts.

For some evidence of the practice of this Court, I refer- to the case of *Swift*vs. *Miles,*(2 Rich. Eq. 154.)

That of the Court of Law is more explicit. The Rule of that Court requiring executors and administrators, pleading *plene*administravit, to file with the plea a full and particular account of their administration, on oath, with an office copy of the inventory and appraisement of the goods and chattels, evidently recognizes the liability of personalty before realty.

The 22d Rule (of those adopted the 4th July, 1758) directs that this be done “ to the end it may appear to the Court that the personal assetts of the testator or intestate are really and in truth fully administered.” After a preamble, reciting that suits were frequently brought against executors and administrators, to subject real estate of testators or intestates to the suing creditor, and that upon plea that the personal estate was fully administered, to which (admitting the plea) replication was made, that testator, or intestate, died seized of lands, &c., which course of practise was “ injurious to those persons, who by devise, descent, or otherwise, are intererested in the lands of the original debtor; and by fraud or collusion real assets may be subjected and made liable to the payment of debts, before the personal assets are exhausted and fully administered, for prevention whereof,” &c.*

The 6th Rule (of those adopted in 1800) requires the same account, on oath, to accompany the plea of *plene administravit,*“ to the end that it may appear to the Court that the *personal assets*of the testator, or intestate, are really administered, to the extent pleaded.”†

The 6th Rule (adopted in 1814) is in identical words.‡

The 6th Rule (adopted in 1837) is in the same words — omitting the word “ personal ” before “ assets,”§ probably to make the Rule -more perfect, by meeting and providing for the case where the will charged lands primarily or equally with personalty, and directed the executor to sell.

*94To what has been said, I add that the decree is contrary to the legislation of the State ; and if the policy which the decree advances is the policy of the State, the Legislature was never aware of it.

The Statute of 178.9, Sec. 20,* prescribing the oath of an executor or administrator, with the will ' annexed, requires him to execute the will “by paying first the debts, and then the legacies, contained in said will, as far as his (testator’s) .goods and chattels will thereunto extend, and the law charge me,” and to make a true inventory of the goods and chattels; and the bond required from an administrator, *cum testamento annexo)*is directed to be conditioned for the administration of the goods and chattels only — although by the Act of 1787, such administrator might sell lands directed by the will to be sold, without saying by whom, the proceeds probably being regarded as personalty.

By the 19th section of the same statute of 1789,† power was conferred on the Ordinary, which he has possessed ever since, to sell personalty of testators or intestates, for payment of debts, as well as for division, or to prevent loss of perishable articles— yet he had no power to sell real estate, for any purpose, until 1824, when he was empowered to sell lands for division only.‡

The Statute of 1842,§ authorizing ordinaries, in certain cases, to pay over to executors or administrators the proceeds of real estates, sold by them for‘division, provides that this be done, “if the personal estate of any (such) testator, or intestate, in the hands of the administrator or executor, or if the assets set apart by a (the) last will and testament, be insufficient to pay the debts of the deceased.”

We have seen that the doctrine of the decree is unsupported by authority; that it is not only contrary to the English authorities, but contrary to the judicial opinion of this State ; contrary to the practice of the Courts, from the earliest times to the .present : contrary to the legislation of the State; that it confounds the well defined and very distinct qualities of the two species of *95property, and sacrifices interests of devisees and heirs in real estate, without reason or necessity; and that it lays the foundation for further results, the effect of which cannot be foreseen.

To this I might add that the doctrine is contrary to that of other States,* whose condition and laws are similar to our own, and whose policy must, therefore, be the same; but I hasten to a conclusion.

It is argued that when a testator disposes of real and personal property, in the same words, to different persons, his intention is defeated, if the personal legacy is taken for debt, in exoneration of the devise of the realty. This is only true, if we suppose him to have drawn his will in ° ignorance of the law. Like disappointments frequently occur where that is the case, and can scarcely be prevented. But if a testator knows that unless he expressly makes real and personal equally liable, the legacies must contribute before the devises; he must intend when he gives them in the same terms, that the former shall be liable before the latter, and is not disappointed when the law takes its course.

Suppose the legal operation of his will had been explained to this testator, and that he still adhered to and executed his will, (and this is the legal presumption), where is the ground for ^disappointment ? The disappointment would have existed only if the legal operation of his will had been disallowed.

After all that can be said, the general reasoning of the decree applies as well to cases of intestacy as to those of testacy : and if lands should be put on the same footing with personalty in the one case, it should in the other; and who is prepared for that ?

If not prepared to go so far, and yet prepared to apply the doctrine proposed to testate property-leaving intestate to be governed by a different rule, have we not anomalies enough in the law already, without adding this to the number?

We prefer to stand where we are, and it is

*96*Ordered,*That so much of the decree as sustains the first exception of the defendant, Ann Hull, be reversed, and that said exception be overruled ; and that with this modification the decree be affirmed.

Dunkin, C., concurred.

*Decree modified.*

*

 2 Story Eq. 5 1247.

*

*Izard*vs. Izard, Bail. Eq. 234, 5.

†

2 Stat. 571, P. L. 250.

‡

2 Stat. 571.

ǁ

 See the cases, 4 McC. 129; 2 Hill, 579; Spear’s Eq. 250; 2 Hill Ch. 260.

*

 See the cases, 4 McC. 129; 2 Hill, 579 Spear’s Eq. 250; 2 Hill Ch. 260.

†

 See note (||) and Spears Eq. 252; Rice Eq. 388.

*

2 Strob. Eq. 193.

†

1 Rich. Eq. 300.

‡

1 Des. 513.

*

 Miller’s Comp. 4 — 5.

†

 Miller’s Comp. 14.

‡

 Miller’-s Comp. 22. § Miller’s Comp. 34.

*

**5 Stat. 109.

†

5 Stat. 109.

‡

6 Stat. 248. § 11 Stat. 232.

*

 3 Johns. ch. 148; 1 Paige, 190; 3 Murph. 201; 1 S. & R. 453; 3 Gill & J. 157; 6 Mass. R. 151; 13 s. & R. 348.