#### *Porter vs.*Cheeseborough. *Ford vs. Cheeseborough. Brown et ux. vs. Cheeseborough et al.*

1. Testator’s son, by his will of the 23d of October, 1828, bequeathed the whole of his estate to his wife, and appointed her, his father, with C, W, and D., his executrix and executors. He died shortly thereafter, leaving his widow and five minor children, two sons and three daughters, surviving, and indebted beyond the amount of his estate. His widow and father, with W. and D., proved the will. W., the acting executor, dying in a few months, the will, at the request of the father, was proved by C. On a petition, in the name of the executrix and executors, leave was granted them by the Court of Equity, to borrow money, which was raised on a note drawn by the widow, and indorsed by C. and D.

2. The father, by his will of the 23d March, 1829, of which C. and D., the persons 'above named, were the executors, amongst other things, directed that his grand-children, abovementioned, should be maintained and educated, and that the income of his estate, after providing for their maintenance and education, should be applied to the payment of his son’s debts, till they were all paid, and bequeathed the whole estate to his grand-children, abovementioned, in certain specific shares; to lake effect, in case of the grand-sons, when they should attain the age of twenty-one years, and in that of the grand-daughters, at twenty-one or marriage.

3. Should either of the grand-sons die before twenty-one, the real estate bequeathed to him is given to the surviving grand-son; and the personal estate so bequeathed, to the grand-daughters, to be equally divided among them. Should one of the grand-sons die, the survivor is to pay to the sisters, or survivor, or survivors, each, four hundred dollars, in three equal annual instalments; the first, in one year after he takes possession of his estate, the remainder in two succeeding years. In the event that either of the grand-daughters died before coming of age or marriage, the personal estate given her, is given to the grand-sons, if one be dead, to the survivor; and the real estate of the grand-daughter so dying, to be equally divided among the remaining sisters. If a second sister died before coming of age, or marriage, her real estate to become the property of the surviving sister, and her personal estate, that of the grand-sons surviving her. Should both grandsons die before coming of age, the estate, real and personal, bequeathed them, to be equally divided among the grand-daughters then surviving. Should the three grand-daughters die before coming of age, or marriage, the estate bequeathed to them, to be equally divided between the two grand*497sons, and if one be dead, to become the property of the survivor. It is further provided, that the real estate bequeathed to the grand-daughters be sold, provided the tract bequeathed to each would sell for two thousand dollars, at least; the money to be put at interest by the executors, subject to the same limitations and provisions as the lands would be, if not sold.

4. The executors blended the accounts of the estates, and applied the funds indiscriminately, to the payment of the debts of either, and to the maintenance of the family.

5. D., upon petition, was released as executor, and the note which had been indorsed by him was, upon his -name being dropped, indorsed by F, the complainant in the second case stated.

6. In February, 1830, the executors and executrix of the son were authorized by the court to borrow an additional sum of money, which was obtained on a note drawn by the executrix and indorsed by C.

7. One of the grand-daughters having died under age, and unmarried, the other devisees, infants, by their next friend, filed a bill against the executrix and executors, for an account of both estates. ■ The second bill was filed by complainant F. to have the debt for which he became bound, paid out of the estate of the father.

8. The proviso, or restriction, in the will of the father, that no interest was to vest until the legatee attained, the age of twenty-one years, or was married, applied not only to the property originally bequeathed to each, but to any interest they might derive under the will from survivorship.

9. It was urged, on the part of complainant in the second case, by way of exception, that the terms of the will of the father, created a legacy equal to the amount of the *debts of*the son, which should be provided for out of the estate of the former. Although this might be true, it was a pecuniary legacy, encumbered with a preferred charge, and if the fund should prove insufficient, the pecuniary legatee would have no right to resort for satisfaction, to the property of which a specific distribution had been made.

10. If the executor allowed from the income more than was necessary for the maintenance and education of testator’s grand children, it would be a matter of adjustment between the creditors of the son and the executors of the father.

11. Bond to the Commissioner in Equity, by the son, with the father as surety, chargeable, in the first instance, on the son’s estate.

12. The father and son had made a joint purchase of negroes; each took half the gang. It seemed to be assumed that each should be charged with half the debt, although the bonds which each executed, were for very unequal amounts. As between the two estates, this would not authorize the charge of the entire bond against the estate of the father.

*49813. The second exception of complainant F. was, “that the petition of the father, under which complainant indorsed the notes of the executors of the son, was an admission of assets sufficient to pay the said debts, and complainant is entitled to relief on that account.” But as the petition was not signed by the father, his name appearing to have been formally used, and as the court was asked to permit the other executors to borrow the money, by executing their note, this was not sufficient evidence to charge his estate with the debt.

14. Estate of the son ordered to be sold, and further testimony taken as to the debts of the father, at the time of'his decease; as also, or any that may now remain unpaid, with leave to report any special matter, &c.

15. A grand-son and a grand-daughter of the father having died, and complainant B. having intermarried with one of the grand-daughters, *held,*that he was not- entitled to distribution of the estate, until the debts were paid.

16. The charge on the surplus of the crops, for the payment of the son’s debts, to continue on such parts of the estate as are not delivered to the several legatees, until the period arrives for the delivery of the last share to the grand-children entitled to receive it.

John Porter, Jr., by his will, dated 23d October, 1828, bequeathed all his estate to his wife, Esther Ann Porter-, and appointed her and his father, John Porter, and his friends, John W. Cheeseborough, Legrand G. Walker, and Anthony W. Dozier, his executors, and died in a few days afterwards, leaving his widow and five children, Charlotte Anzy, John, Eliza Cheeseborough, Hannah Esther, and Anthony Toomer, and indebted beyond *the*amount of his estate. His widow and father, Mr. Walker, and Mr. Dozier, proved the will on the 7th November, 1828. Mr, Walker, the acting executor, died within a few months, and the will was then proved, at the request of the father, by Mr. Cheeseborough. A petition was presented to the Court of Equity, in the names of Mrs. Porter, Mr. Porter, Mr. Dozier and Mr. Cheeseborough, for leave to borrow money; andón the 4th Feb. 1829, a report in favor of the petition was confirmad, and the money was soon afterwards raised on a note drawn by Mrs. Porter, and endorsed by Mr, Cheeseborough and Mr. Dozier. John Porter, the father, by his will, dated 23d March, 1829, among other things, directed that his grand-children, abovenamed, should be maintained and educated, and that the income of the estate. *499after providing for their maintenance and education, should be applied to the payment of his son’s debts, till they were all paid, and gave his estate to them at the age of twenty-one or marriage, in certain specific shares. Of this will, he appointed Mr. Cheeseborough and Mr. Dozier executors, who proved the will on the 18th of April, 1829. The executors blended the accounts of the estates, and applied the funds indiscriminately to the payment of the debts of either, and to the maintenance of the family. Mr. Dozier afterwards petitioned the court to be released from his duty as executor, and the petition was granted. The note which had been endorsed by him, was, from time to time, renewed, and after he had ceased to act as executor, his name was dropped as an endorser, and George T. Ford endorsed in his stead-. An order was granted in February, 1830, authorizing the executrix and executors of John Porter, jr., to borrow ($3000) three thousand dollars more, and the loan was obtained on 30(h June, 1830, on a note of Mrs. Porter, endorsed by Mr. Cheeseborough.

Charlotte Anzy Porter died under age and unmarried, and the first bill is filed by the other devisees, as infants, by their next friend, against the executrix and executors, for an account of both estates. The second bill is filed by George T. Ford, to have the debt for which he has become bound, paid out of the estate of John Porter.

An account was directed, and notice to the creditors of John Porter, and John Porter, jr., and a receiver appointed. John Porter, one of the complainats, died pending the account, under age and unmarried. The master made his report, to which exceptions were taken, and the case was heard upon the report and exceptions, and evidence taken in the cause, at June Term, 1843, when his Honor delivered the following decree.

Dunkin, Ch. These causes Were heard together on the Master’s report, and the exceptions of the several parties.

In order to understand the judgment of the court, it may be as well to recite all the disposing clauses of the will of John Porter, the elder, of which an extract is em* braced in the Master’s report. According to the answer of the executor, the testator left very inconsiderable assets *500not included in the following devise and bequest, viz :• — i!X will and devise that all my furniture, all my stock of horses, cattle and sheep, with the exception of twelve milch cows, six working oxen, and twelve young steers, be sold, and the money arising from the sale thereof, as well as the money arising from the sale of my crops to be made on my plantations, except so much as may be necessary to defray the expenses of the said plantations, and also except so much as may be necessary for the support, maintenance and education of my two grand-sons and three grand-daughters, whom it is my will and desire to be supported and educated in a manner warranted by my estate, and at the expense and to the charge of the same, be appropriated each and every yéar, as soon after the funds are realized as may be practicable, to the payment of the debts with which the estate of my son, the late Col. John Porter, is incumbered, until the said debts shall be paid and discharged.

“ I will, devise and bequeath to my grand-daughter, Charlotte Anzy Porter, when she shall have attained the age of twenty-one years or, be married, a tract of land on Black river, known by the name of Cherry Hill, together with the following named negroes, Phoebe, (&c., twenty in number, naming them.) . .

“ To my grand-son, John Porter, jr., when he shall attain the age of twenty-one years, the following property, viz: — a plantation or tract of land, called Jessamine, or Priggs’ plantation, on Sampit, together with the following named negro slaves, and the issue of the females, viz., (twenty in number.)

“To my grand-daughter, Eliza Cheeseborough Porter, when she shall attain the age of twenty-one years or be married, I give, devise and bequeath, the following property — a tract Of land on Black river, called Hickory Grove, and the following named slaves, viz., (eighteen in number.)

“To my grand-daughter, Hannah Esther Porter, I give, devise and bequeath, a tract, of land, near Britton’s Ferry, on the Peedee fiver, and the following slaves, viz,, (nineteen in number.)

“ To my grandson, Anthony Toomer Porter, I give, devise and bequeath, when .he shall have attained the age of *501twenty-one years, the following property, to wit: — my plantation on Sampit river, by the name of Springfield, and the following named slaves, viz: (twenty in number.)

“The bequest made to my grand-daughter, Hannah Esther Porter, like the bequests made to my two other grand-daughters, is to go into effect when she shall attain the age of twenty-one years, or marry.

“ It is also my will and desire, that should either of my grand-sons die before arriving at the age of twenty-one years, such real estate as is hereby bequeathed to him, I, in that event, devise and bequeath to the surviving grandson, and the personal property bequeathed to the grandson so dying as aforesaid, I give to my grand-daughters surviving him, to be equally divided among them.

“ I also will and direct, that in the event of the death of one of my grand-sons, the survivor shall pay the sisters, or survivor or survivors, each, four hundred dollars, in three equal annual instalments — the first instalment to be paid in one year after he takes possession of his estate, and the remainder in two succeeding years.

“ Should either of my grand-daughters die before she reach the age of twenty-one years, or before she marries, the personal estate to which, by this will, she would be entitled, I devise to my grand-sons, and if one be dead, to the survivor; and the real estate of the grand-daughter so dying as aforesaid, to be equally divided amongst the remaining sisters ; and if a second sister die before attaining the age of twenty-one years, or before marrying, her real estate to become the property of the surviving sister, and her personal estate to become the property of my grandsons who may survive her.

“Should both my grand-sons die before attaining the. age of twenty-one years, the estate, real and personal, herein bequeathed to them, to be equally divided among my grand-daughters then surviving.

“ Should my three grand-daughters die before attaining the age of twenty-one years, or before marrying, the estate herein bequeathed to them, is to be equally divided between my two grand-sons, and if one be dead, to become the property of the survivor.

*502*“*It is also my will and desire, that the real estate here bequeathed to my grancl-daughters be sold, provided the tract of land bequeathed to each will sell for the sum of two thousand dollars at least, and the money arising from such sale to be, by my executors, placed at interest, and subject to the same limitations and provisions as the lands by the will are, in the event of their not being sold,”

According to the scheme of the testator’s will, as collected from the several clauses, his entire estate was devised and specifically bequeathed to his grand-children therein, named. But the devise and bequest to each was only to take effect when (in the case of the grand-sons) he should attain the age of twenty-one years, and (in the case of the grand-daughters) the legatee should attain the age of twenty-one years or be married. It appears to the court, that this proviso or restriction applies not only to the property originally bequeathed to each, but to any interest they might derive under the will from survivorship. No interest was to vest until the legatee attained the age of twenty-one years, or was married, as the case might be, unless, perhaps, on a contingency which cannot now happen.

During the intermediate period, the testator directs the proceeds of the crops, <fec., of his estates, to be annually appropriated to the disbursement, in the first instance, of the plantation expenses, *&c.*He makes no provision for the payment of his own debts. He left no residuary fund of any importance. His silence on this point seems *to*confirm the testimony of one of the witnesses, that “the testator declared on his death-bed,’that he did not owe a dollar in the world.”

It is then substantially provided, that so much as was necessary of the income, should be applied to the support, maintenance and education of his grand-children, whom he directed “ to be supported and educated in a manner warranted by his estate, and at the expense and to the charge of the same.” The surplus of these funds, he directs to be annually applied to the payment of the debts with which his late son’s estate was incumbered, until the said debts should be paid and discharged.

It was urged in the argument, and such is the first exception of the complainant in the second case, that the *503terms of the will created a legacy equal to the amount of the debts of John Porter, jr., and said debts should be provided for out of. the estate of John Porter, sen’r. This may be true — but it is a pecuniary legacy, payable out of a particular fund, which was already incumbered with a preferred charge. If this fund should prove insufficient, it is hardly necessary to say, that the pecuniary legatee would have no right to resort for satisfaction to the property of which a specific disposition has been made. If the executor has allowed from the income more than was proper or necessary for maintenance and education of the testator’s grand-children, in the manner contemplated by the will, it was, and is, a matter of adjustment between the creditors of John Porter, jr., and the executors of his father, although, it may be remarked, the Master more than intimates his opinion, that the allowance for this purpose was not unreasonable.

If the testator, John Porter, the elder, was mistaken in his impressions, and was proved to be indebted, either as principal or surety, the debts were, of course, chargeable on his estate, although no provision was made in the will for their payment. On this point the court is not satisfied, and it will be necessary to refer the matter back to the Master, for further examination. In exhibit B., filed with the answer of the executor, the debts of John Porter, sen’r., at the time of his death, are stated thus:

1. A bond to the Commissioner in Equity, $3,850

2. Liability on a bond to the estate of R. Shackle-ford, (paid since by the executor.) - 1,533

3. Open accounts (paid) - 774

In addition to these sums, the defendant insists, by his first exception, that the estate of John Porter, sen’r. should be charged with the sum of $1,358 08, with interest from June, 1828, as having been paid by John Porter, jr., on a bond to his father, in the hands of Benjamin Grier.

The bond to the Commissioner in Equity, for $3,850, is, apparently, the bond of John Porter, jr., with his father as surety, and is, in the first instance, chargeable on the son’s estate. The debt to the estate of R. Shackleford, is termed a *liability.*It may be important to inquire whether this was also a debt of the son, secured by the father,

*504It seems that, in 1827 or 1828, John Porter, sen’r., and John Porter, jr., made a joint purchase of Munnerlyn’s negroes, for about $6600; each took half the gang, but it seems to *be*assumed that each should be charged with half the debt, although the bonds to the Commissioners, which each executed, wTere for very unequal amounts. This may be so; but, as between the two estates, it would not authorize the charge of this entire bond against the estate of John Porter, sen’r.

Then, as to the first exception, in relation to the payment of $1358,08, the court has no testimony as to the time when the indorsement was made on the bond, nor at whose instance, nor under what circumstances, it was made.

In regard to the remainder of the defendant’s exceptions, the court concurs in the views of the Master, and the exceptions are overruled.

The second exception of the complainant, George T. Ford, is, “that the petition of John Porter, sen’r., under which the complainant endorsed the notes of the executors of John Porter, jr., was an admission of assets sufficient to pay the said debts, and complainant is entitled to relief on that account.”

This petition is not signed by John Porter, sen’r. His name seems to have been formally used; and the court is asked to permit the other executors to borrow the money, by executing their notes, <fcc. It does not seem to the court that this evidence is sufficient to charge his estate with the debt. The exception is overruled.

On the account' between the executors of John Porter, sen’r., and the estate, the Master has reported a balance in favor of the executor, of $3085 20, of which $926 is payable to the said executor, and the balance, $2158 97, is due to the estate of John Porter, jr. On this part of the report, the opinion of the court is reserved, until the report is made on the matter recommitted to the Master.

It is ordered and decreed, that the remainder of the estate, real and personal, of John Porter, jr., deceased, be sold by the Master of this court, at such time and place, and on such terms, as may be fixed by the solicitors of the parties, with the concurrence of the Master — that the *505Master take further testimony, and report on the debts due by John Porter, sen’., at the time of his decease, as also on any that may now remain unpaid; with leave to report any special matter; and that, in the mean time, the parties, respectively, have leave to submit any special order that may be deemed admissible or necessary, not inconsistent with the principles of this decree.

In the case of *Brown and wife vs. Cheesehorough et al.*the third case stated, Chancellor Dunkin decreed as follows :

Dunkin, Ch. In the cause of *Porter vs. Cheeseborough,*heard at this term, the views of the Court were expressed in regard to the construction of the will of John Porter, the elder. It is not deemed necessary to add m.uch to what is there stated. The testator manifestly designed that his estate-should be kept together until the legatees should respectively arrive at the age, or period, when he deemed them qualified to receive and enjoy the estate bequeathed to them, and as each reached that period, his or her share should be taken off. After having provided for every contingency which occurred to his mind that might destroy or defeat the interests of some, and enlarge the interests of others, during the intermediate period, the testator declares “should both of my grand-sons die before attaining the age of twenty-one years, the estate, real and personal, hereinafter bequeathed to them, t6 be equally divided among my grand-daughters then surviving.

“Should my three grand-daughters die before attaining the age of twenty-one years, or before marrying, then the estates herein bequeathed to them are to be equally divided between my two grand-sons, and if one be dead, to become the property of the survivor.”

On the decease of Charlotte Anzy, and the subsequent marriage of the complainant, Mrs. Brown, a moiety of the real estate devised to Charlotte Anzy vested, absolutely, in Mrs. Brown. The negroes bequeathed to her (Charlotte) will, in consequence of her death, and the subsequent death of her brother John, become the absolute property of Anthony, if he shall attain the age of twenty -one years. On the death of John Porter, the brother of the complainant, *506Mrs. Brown, and on her marriage, she became entitled, absolutely, to a moiety of the negroes specifically bequeathed to John; the other moiety will vest in Hannah Esther, should she marry or attain the age of twenty-one years. It is not now necessary to look further.

In the case of *Porter vs. Cheeseborough,*a further enquiry was directed as to the indebtedness of John Porter, Sen. It does not seem necessary to postpone the delivery of the legacies to the complainants, as provision may be hereafter made for the payment of any debts which shall be established. Mrs. Brown is still a minor, and it is proper that her interests under her grand-father’s will should be secured.

*It is ordered and*decreed, that a writ of partition issue, to set off the share to which Mrs. Brown is entitled, of the estates originally devised and bequeathed to her sister Charlotte Anzy, and her brother, John Porter, deceased.

*It is further ordered and decreed,*that the master of this court report the terms of a settlement, proper to be made, of the estate of Mrs. Brown, devised under the will of her grand-father, John Porter, the elder; as also a fit and proper person to be appointed trustee, or more than one if deemed expedient, and that on the due execution and recording of such settlement, the estate of Mrs. Brown be delivered up by the receiver, to be held subject to the uses of the settlement. It is also ordered, that an account be taken of the income to which Mrs. Brown was entitled since her marriage, and any sums that may have been paid or advanced on account of the same by the receiver.

Finally, *it is ordered and decreed,*that parties be at liberty to apply, from time to time, at the foot of this decree, for such further order and direction, as circumstances may render necessary, or as may be deemed expedient for carrying this decree into effect. Each party to pay their own costs; those of the executors to be paid out of tire estate of John Porter, the elder,

From this decree Mr. Cheeseborough appealed, on the ground, “that no distribution of the estate should be made until the debts are paid.”

And from the decree in *Porter vs. Cheeseborough,*on the following grounds:

*5071. That Mr. Porter, by joining in the petition for permission to borrow money, bound himself for the payment of the money lent to the executors.

2. That by the will of Mr. Porter, the debts of John Porter, Jun., are well charged on his estate.

3. That an account should be ordered that would bring before the court a complete statement of all the debts of Mr. Porter and his son.

*Petigru &*Lesesne, for Cheeseborough.

Memminger, for Brown and wife.

*Mazyck,*for-.

Bailey, for creditors of John Porter, Sen.

*Hunt,*for Ford.

Curia, *per*Dunkin, Ch.

The Court concurs, generally, in the views taken by the Chancellor.

Ic may be proper, however, to remark, that the charge on the surplus of the crops, for the payment of his son’s debts, must continue on such parts of the estate as are not delivered to the several legatees, until the period arrives for the delivery of the last share to the grand-children entitled to receive it.

The Court is of opinion that the ground of appeal from the decree in the case of *Brown and wife vs.*Cheesebo*rough,*viz: “that no distribution of the estate should be made until the debts are paid,” is well taken. However inconsiderable may be the indebtedness of John Porter, Sen., in comparison with his estate, the creditors have a right to insist that they shall be satisfied before any judicial distribution.

So much of the decretal order as directs a writ of partition to issue, must be suspended until the hearing of the master’s report, and the further order of the court. In all other respects, the decrees of the Circuit Court are affirmed, and the appeal dismissed.

Johnson and Harper, Chancellors, concurred.

Johnston, Chancellor, absent from sickness.