#### Mary C. Drayton, and others, *vs.*James Rose, and others.

A codicil *held*to be sucb a re-publication of the -will as to pass to the residuary-devisee a farm purchased by the testator after the date of the will, and before the date of the codicil, although the farm was purchased with the proceeds of a plantation which was otherwise disposed of by the will, and which the testator had in the meantime sold.

The will directed that the estate be kept together during the life of testator’s daughter; that she be paid three thousand dollars annually, from the net proceeds of the crops, and the net residue of the crops be applied to his *debts:*— Said, that the farm afterwards purchased was subject to this provision of the will.

*Meld,*also, that the net residue of the crops was the primary fund for the payment of debts in exoneration of the residuary estate.

*Meld,*further, that after payment of debts, the net residue of the crops, during the life of the daughter, would go to the residuary legatee, although the will directed that after the death of the daughter the *corpus*be sold, and the proceeds divided among certain legatees.

The Court refused to break in upon the scheme of the will by directing a sale of the property, for payment of debts, distribution, &c., during the life of the daughter.

BEFORE WARDLAW, OH., AT CHARLESTON, JUNE, 1853.

The testator, Dr. Philip Tidyman, died the 2d July, 1850, and the defendants, James Rose and Henry A. De Saussure, qualified as executors of his -will. The case will be sufficiently understood from the will and codicil of the testator, and the decree of his Honor, the presiding Chancellor.

“ Will. — State oe South Carolina.

“ In the name of God, amen. I, Philip Tidyman, of Charleston, Doctor of Medicine, being of sound and disposing mind and memory, hut mindful of the uncertainty of life, do make5 publish and declare this to be my last will and testament, *329hereby cancelling and revoking all former or other wills and testaments by me heretofore made.

*“Imprimis.*— I give and bequeath, to my nephew, Alfred Drayton, my watch and seals and my Mantón gun and pistols.

*“ Item.*— I give and bequeath, to my friend and cousin, John Auldjo, Esq., of England, the miniature paintings of Mrs. Tidyman and myself, by Malbone; also the painting of Louis Phillipe, King of Prance, beautifully executed on Sevre China; also, the drawing of Ninon de L’Enclose; also, the copy of Sir Joshua Reynold’s Juvenile Academy in Crayons, by Newsam, a deaf and dumb boy, of Philadelphia, executed, when he was but seventeen years old; also, a small box, made from a remnant of the great elm tree, under which the treaty of William Penn with the Indians was signed, which box was presented to me by Judge Roberts Vaux, of Philadelphia, whose maternal uncle was a member of Penn’s Council.

*“ Item.*— I give and bequeath to the American Philosophical Society all my useful books and engravings, also letters to mo from eminent men, and all my diplomas, to be deposited in their Library. The diplomas may be considered of value from the autographs of eminent men.

“ *Item.*— I give and bequeath to the St. Andrew’s Society, of Charleston, a portrait of the great tragedian, John Kemble, an original painting by Martin Shee, President of the Royal Academy; and, also, after the death of my daughter, my own portrait, by Sully.

*“Item.*— I give, devise and bequeath, unto my beloved daughter, Susan Tidyman, for, and during the term of her natural life, the use of my house and lot in Ladson’s court, in Charleston, wherein I now reside, together with all my household and kitchen furniture, linen, plate, wine, and every other kind of property in my said establishment, as it now stands, wnthout change or alteration in any respect; also all the house-servants usually employed by me in town and country for domestic comfort; also, my carriage and horses. My intention *330is that my beloved daughter, during her life time, shall reside in her own house and be attended by her own servants. And I request such one -of my nieces as my daughter may select, to reside with her, and, as a friend and companion, to promote her comfort and happiness.

“ *Item.*— I order and direct my executors to keep my whole estate together, during the life time of my said daughter; to have my plantations cultivated by my slaves, as they now are; to manage and superintend the same; and, from the proceeds of the crops, to pay to my beloved daughter, Susan Tidyman, annually, during her life time, the sum of three thousand dollars, for her maintenance and support; and to appropriate the net residue of the crops to the payment of my just debts.

“ *Item.*— After the death of my said daughter, I give and bequeath, to my niece, Susan Deas, my silver urn (a valuable piece of family plate,) and all my other plate and plated ware, and all the jewelry in my house. To my cousin, James Rose, and his wife, Mrs. Julia Rose, or the survivor of them, my house servants, Nancy, Lucretia, Jenny and Judy, with my earnest request to protect and treat them with kindness; and also the sum of one thousand dollars, to be paid out of the sale of my plantations, as hereinafter directed.

*" Item.*— After the death of my said daughter, I order and direct my executors to sell and dispose of all my house and lot of land in Ladson's court, in Charleston, and the rest of my furniture/&c., &c., therein, carriages, horses, &c., upon such terms of cash and credit, as they may deem most expedient, and divide the net proceeds of such sales equally between my nieces, Hester Drayton and Maria Drayton, my nephew, Alfred Drayton, Mrs. Mary Holmes, (widow of C. R. Holmes,) and her sisters, Elizabeth Deas, Anne Deas and Susan Deas, to each, one-seventh part thereof.

“Ítem. — After the death of my said daughter, I order and direct my executors to sell and dispose of all my real estate, consisting of my Cedar Hill Plantation in St. James’ Parish, *331Santee, and my plantations in the Parish of Prince George, Winy aw, (north Santee,) npon such terms of cash and credit, as they deem best, and, from the proceeds of such sales, I direct the balance of my debts to be paid; then out, of such proceeds I give and bequeath to James Rose and Mrs. Julia Rose, or the survivor of them, the sum of one thousand dollars, as herein before stated ; and to the German Eriendly Society, of Charleston, South Carolina, the sum of five thousand dollars, as a permanent fund, in aid of their funds, for the benefit and assistance of “indigent transient Germans;” and the remainder of the proceeds of such sales to be equally divided, between my nieces, Hester Drayton, Maria Drayton, Rose Eord, (wife of Frederick A. Ford,) and my nephew Alfred Drayton, to each one-fourth part thereof.

*“Item.*— After the death of my said daughter, I order and direct the remainder of my slaves to be divided in families, by my executors into seven equal parts or shares, one-seventh part whereof I give and bequeath to my nephew, Alfred Drayton.

*“*One-seventh part whereof I give and bequeath to my niece, Hester Drayton.

“ One-seventh part whereof I give and bequeath to my niece, ' Maria Drayton.

“ One-seventh part whereof I give and bequeath to my niece, Elizabeth Deas.

“ One-seventh part whereof I give and bequeath to my niece, Anne Deas.

“ One-seventh part whereof I give and bequeath to my niece, Susan Deas.

“ One-seventh part whereof I give and bequeath to my niece, Mary Holmes, (widow of C. R. Holmes.)

*“Item.*— I give and devise all the r'est and residue of my estate, of every kind and nature whatsoever, unto my nephew, Alfred Drayton.

*“Lastly.*— I nominate, constitute, and appoint my friends *332Jacob Bond Ion, James Rose, and Henry A. De Saussure, executors of this, my last will and testament.

“ Witness, my hand and seal, this twentieth day of March, in the year of our Lord, one thousand eight hundred and forty-three, and in the sixty-seventh year of American Independence.

“PHILIP TIDYMAN, (seal.)”

Codicil.

“ I declare the following to be a Codicil to my will:

“WHEREAS, in my foregoing will, I gave and bequeathed to my cousin, James Rose and his wife, Mrs. Julia Rose or the survivor of them, certain house-servants, after the death of my daughter, and, among them, one named Judy; since the date of my will the said Judy has had a child. I now, therefore, give and bequeath the present and future issue and increase of my said servant, Judy, to the said James Rose and his wife, Mrs. Julia Rose, or the survivor of them, in the same manner as I have heretofore given Judy to them.

“ Witness, my hand and seal, this twelfth day of March, in the year of our Lord, one thousand eight hundred and fifty.

“P. TIDYMAN. (seal.)”

The decree of his Honor, the presiding Chancellor, is as follows :

WaRDLaw, Ch.

The plaintiffs are legatees of the late Dr, Tidyman, and submit to the judgment of the court various claims, depending upon the construction of the testator’s will. Some of these claims have already received the consideration of this court, in a case entitled *Rose*vs. *Drayton,**(a)***wherein the executors of Dr. Tidyman were plaintiffs, and Susan Tidyman, heir at law and principal legatee of testator, and Alfred R. Drayton, resi*333duary legatee, were defendants. The present plaintiffs insist that they are not bound by the judgment in *Bose*vs. Drayton, as they were not parties or privies to the suit. It is not clear that they were not so far represented by the executors as to be estopped from disputing the judgment there: but however this may be, the ease is binding on me as authority. This last remark is made with no purpose of pressing the former decision beyond its just scope, or of avoiding just responsibility on my part. Chancellor Dunkin’s decree in *Rose*vs. *Drayton*decided that the codicil of March 12, 1850, republished the testator’s will, so as to pass the Greenville farm, acquired after the making of the will; and that, as to so much of this farm as the testator had contracted to sell to the railroad company, Alfred R. Drayton had the legal title, and was bound as trustee to convey to the purchaser, and was entitled as residuary legatee to an account for the estate, thus converted into personalty, from the executors, who were adjudged to be authorized to receive the purchase money. The Court of Appeals affirmed this decree, to the extent of the appeal from it, that the codicil republished the will, and carried to the residuary legatee the legal estate in so much of the Greenville farm as was contracted to be sold by testator, and of course that testator was not intestate as to this estate, so converted by contract, nor his daughter as distributee or heir entitled to take the same. Neither the Circuit nor Appeal decree adjudged anything as to so much of the Greenville farm as remained in specie, beyond the general proposition and its necessary incidents, that the codicil republished the will.

Independent of the case of *Rose*vs. *Drayton*upon the very matter in dispute, it seems to me to he too clear for discussion, upon principle and authority, that the codicil in this case republished the will. *Pigott*vs. *Waller,*7 Yes. 98; *Barnes*vs. *Oroioe,*4 Br. C. C. *2; 5*M. & S. *5■*The effect of republication of a will, by codicil, is to bring down the will to the date of the codicil, and make the words of will and codicil as one *334instrument declare the disposition of bis estate by testator, at tbe time of republication, with some exceptions as to reviving legacies in the will revoked, adeemed or satisfied. *Powys*vs. *Mansfield,*8 Myl. & Or. 37 6, (14 E. 0. R.) If, however, the language of the will, interpreted as used at the date of republication, does not include after acquired estate in its description of the subject of gift: or, if the republishing codicil be so limited in its terms of disposition, as to exhibit the intention of the testator to confine its operation to the estate embraced in the original will, after acquired estate will not pass. 1 *Money-penny*vs. *Bristow,*2 Russ. & Myl. 117; *Havin*vs. *Foster,*14 Pick. 541. In the present instance, no such indication appears in the codicil to limit the effect of republication The change of the state of testator’s indebtedness between the dates of his will and codicil, produced by his sale of one of his plantations in Prince George, Winyaw, and his application of the proceeds to his debts, has no. bearing upon the construction of the will, for the testator is presumed to speak as to lands at the date of his codicil, and as to personalty at the date of his death.

Applying these principles to the case, it is manifest that the ample terms of the residuary clause give the Greenville Farm to Alfred Drayton, unless it be devised to another. Supposing it undevised to any other, then as every devise of land is in its nature specific, *(Broome*vs. *Monde, 10*Yes. 596,) we may read the clause according to its legal effect: I give and devise my Greenville farm and all the rest and residue, &c. It is suggested, in the *first*of the claims set forth in the bill of the plaintiffs, that, as the Greenville farm was purchased with the proceeds of sale of the plantation in Prince George, Winyaw, the former place must be regarded as substituted for the latter, and as passing to the devisees of the latter. The will, fairly construed with reference to the state of testator’s affairs, contains no indication of any purpose on his part to make such substitution, and extrinsic evidence of such purpose is clearly *335incompetent, and it was not offered. To admit this substitution would overrule all the doctrine of ademption by the testator’s sale or conversion of the subject of devise. It was argued, under • this head, that the direction by the testator, in the ninth clause of his will, to his executors, to sell after the death of his daughter *all*of his real estate, consisting of his Cedar Hill plantation and his plantation in Prince George Win-yaw, and divide the proceeds among certain legatees, included the Greenville farm as part of his real estate, although not expressly named. But obviously the testator did’not intend to embrace in this clause all of his real estate, or indeed any portion thereof not enumerated, for, in the clause immediately preceding, he had directed his executors, after the death of his daughter, to sell *all*of his house and lot of land in Ladson’s Court, and make a different distribution of the proceeds from ■that prescribed in the ninth clause. It is always a mere question of construction, which of the two, general words or a specific enumeration accompanying them, shall control: and here, supposing the testator to use the words of the ninth clause after he acquired the Greenville farm, I am of opinion that he did not intend to embrace any real estate therein, besides the parcels enumerated. *Bowes*vs. Bowes, 7 T. R. 482, 2 Bos. & P. 500; *Garrett*vs. Garrett, 1 Strob. Eq. 96.

The *second*claim of the plaintiffs is that the crops or profits of the Greenville farm'are chargeable with the debts of testator and the annuity given to his daughter. The sixth clause of the will directs the executors to keep the whole estate of testator together, during the life of his daughter: to have the plantations cultivated by his slaves as they then were, and manage and superintend the same; and, from the proceeds of the crops, to pay to his daughter annually $3000 for her maintenance and support; and to appropriate the net residue of the crops to the payment of his just debts. It seems that the executors have given to Alfred Drayton, the residuary legatee, the possession of the unsold remnant of this farm, although 'about *336$5000 of tbe testator’s debts remain unpaid. It is charged in the bill that the testator cultivated this farm ; and this allega-gation is admitted by the demurrer of Alfred Drayton, and is not denied in the answer of the executors. I understand testator’s direction to keep his estate together, followed by the directions to manage the cultivation and appropriate the crops, to relate to his lands yielding crops, and to the slaves and stock connected with agricultural operations. Manifestly the clause does not refer to his house and lot in Ladson’s Court, and the furniture, plate, wine, &c., connected with that establishment as a residence, nor to the house servants, in town or country, usually employed for domestic comfort; for all these had been immediately given by a previous clause to his daughter. *Lawton*vs. *Hunt,*4 Strob. Eo[. 7. But I cannot distinguish between a cultivated farm, yielding crops, and a plantation. In my opinion. the crops of the Greenville farm are charged with the debts of testator; *(Rowley*vs. JEyton, 2 Meriv. 128,) and the executors were not authorized, either by the will of their testator or the decree of the court in *Bose*vs. Drayton, to deliver possession of the farm to *the*residuary legatee. Some of the plaintiffs, Elizabeth Deas, Susan Deas, Anne Deas and Mary Holmes, seem to have no interest in this question, but no objection is made for misjoinder; and none of the plaintiffs has a present interest in the question, provided the debts of testator be paid, before their right of enjoyment, at .the death of the daughter, begins, unless they are entitled to intermediate profits, which will be hereafter considered. The real controversy is between the executors and the residuary legatee.

The *third*claim of plaintiffs is that the residuary legatee, Alfred Drayton, has no right to any portion of the estate of testator before the daughter’s death, and that he is bound to refund to the exebutors the moneys prematurely received by him. This claim relates to the nine hundred and fifteen dollars ; the purchase-money of the portion of the Greenville farm, *337sold by the testator to the Railroad Company, and to the money in the hankers’ hands, at the death of testator: which have been paid over by the executors to Alfred Drayton. The decree, in *Rose*vs. Drayton, decides that the executors are bound to account to Alfred Drayton, as residuary legatee of the personalty for the nine hundred and fifteen dollars; and the money in the hands of the bankers, although not expressly mentioned in the former decree, is within its principles. It must be admitted that a decree to account to a residuary legatee does not absolutely direct immediate payment to such legatee; and, in my judgment, the executors would have been well authorized to retain these sums until the estate primarily charged with the payment of debts had achieved the end. But if the executors had applied these funds to the payment of debts, the residuary legatee would have had a clear equity to be subro-gated for reimbursement to the situation and control of the executors over estates, antecedently liable for debts. It is insisted, however, for plaintiffs, that the will of testator is merely directory that the executors may pay the debts from the net proceeds of the crops, and creates no charge for debts upon the crops; and that, as residue strictly means the remnant after payment of debts and legacies, the residue in this case is the primary fund for the payment of debts. It cannot be disputed that a testator may prescribe as to volunteers, taking under his will, the order in which his estate shall be liable for his debts, and thus in any particular instance change the course of liability which would follow from the common law. In the present case the testator has made the law for his legatees. He has primarily charged the net residue of his crops after the payment of the annuity to his daughter, with his debts, and next directed that the balance of his debts shall be paid from the proceeds of estates directed to be sold in the ninth clause of his will. In *Warley*vs. *Warley,*Bail. Eq. 409, it is held that, in the administration of a testator’s assets for payment of debts, the first liability is upon real or personal estate, de*338vised for the payment of debts, or in any manner directed to be so applied. In *Pinckney*vs. *Pinckney,*2 Rich. Eq. 234, this rule was followed where the charge for debts was not so distinctly expressed as in the present case.

*The fourth*claim of plaintiffs is that any surplus income from testator’s crops, after payment of the annuity bequeathed to the daughter and the testator’s debts, before the daughter’s death, passes immediately or accumulates and passes ultimately to the legatees of the *corpus*of the estate, and does not go to Alfred Drayton as residuary legatee. The residuary legatee in this ease takes every portion of the testator’s estate which is not effectually given to other legatees : and this claim assumes that the direction to the executors, in the 8th and 9th clauses of the will, to sell certain real estate after the death of his daughter, and divide the proceeds among particular legatees, carries to these legatees the income not exhausted in the payment of debts and of the annuity to his daughter with which it was primarily charged. It is probable, from the direction in the 9th clause, that the balance of his debts be paid before the distribution of the proceeds of sale, that the testator did *not*expect there *would*be any net residue of his crops during the life of his daughter after payment to her of the annuity and of his debts: but he provided in the residuary clause a receptacle for possible remnants not specifically disposed of. Treating the legacies in the 8th and 9th clauses as devises, there would be no doubt the residuary legatee would take the intermediate profits unconsumed. Where a specific devise is to take effect *in futuro,*so that, at the death of the testator, there is no person actually entitled to the immediate income, the rents and profits until the devise vests in possession will pass under the residuary clause. 1 Jarm. Wills, 594; *Duffield,*vs. *Duffield,*3 Bligh, P. C. 621. But, when personal estate is given to A. at twenty-one, this will carry the intermediate interest; and the same result will probably follow where the testator mixes up real and personal estate in the same clause. *Grenery vs. Fitzgerald,*Jac. *339468, (4 C. E. C. C. 218); *Dougherty*vs. *Dougherty,*2 Strob. Eq. 65; *Brailsford*vs. *Heyward,*2 Des. 18.

A devise of lands to be sold works a conversion of the lands into personalty from the death of the testator; and a devise of lands to be sold, after a life estate arising under the will, and that the proceeds be distributed to certain persons, is a pecuniary bequest, to these legatees, vesting from the death of the testator. If the conversion be absolutely directed, the postponement of the sale seems to be immaterial.' *Bletcher*vs. *Ashhurner,*1 Bro. C. 0. 497; 1 White *k*T. L. C. 565. Granting then that legatees under ■ 8th and 9th clauses of the will are in the more favorable position of legatees of personalty, I am still of opinion that the surplus of intermediate profits is not given to them. It is not given to them expressly, nor does the testator seem to have contemplated any enjoyment by them; nor any surplus profits in the life of his daughter, except in the residuary clause. Against all others, besides particular legatees, the residuary legatee is presumed to be the object of testator’s bounty. In most of the cases which have arisen on this point, the controversy has been between the residuary legatee and the heir-at-law, and strong expressions have been used in favor of residuary legatees against intestacy. In *Brails-ford*vs. *Heyward,*however, the contest was between the particular and residuary legatees: but that case was determined upon the special provisions of the will, especially upon a clause giving the executors full discretion to deal with the profits for the benefit of the children of testator. I have found no other case, in which a legatee of estate, to be enjoyed *in futuro,*prevailed against a general residuary legatee. It is adjudged that Alfred Drayton is entitled to the surplus income after payment of the debts of testator and the annuity given to his daughter.

*The fifth*claim of plaintiffs is, that so much of the testator’s estate as may be necessary for the purpose be at once sold, for the payment of the debts of testator and raising''a capital for ' *340paying the annuity to the daughter; and that the residue be divided amongst the legatees. The daughter and the residuary legatee do not consent to this arrangement. It is always a delicate exercise of power in the Court to disturb the arrangements of a testator’s will, to be justified only where his schemes prove impracticable, and the interests of all his legatees require a departure from the prescriptions of the will. Such was the case of *Lawton*vs. Sunt, 5 Strob. Ecp 1. In the present case, the only pretence of necessity for a sale, premature in the opinion of testator, arises from the fact that the executors have not reduced the debts of testator more than $ 1000, and that $5000 of debt still remains. The executors give a satisfactory account, in their answer, of their inability to do more in the reduction of the debts. Creditors are not pressing, and the amount of indebtedness is small, compared with the value, nay, the income of the estate. It would be a gross abuse of discretion to force a sale under these circumstances.

The *sixth*claim has been already considered in substance, and overruled.

I have hesitated between dismissing the hill without prejudice, and retaining it for the present on account of the second claim of plaintiffs ; which I have sustained. I have concluded to take the latter course.

It is ordered and decreed that the bill of the plaintiffs be retained for the present, with leave to the defendants, the executors, and to Alfred Drayton, the residuary legatee, to move for its dismissal as soon as the debts of testator be paid, and with leave to the plaintiffs to proceed further if the debts of testator be not paid at the death of his daughter.

The complainants appealed on the grounds:

1. That his Honor erred in ruling that the Greenville Farm was not to be regarded as substituted by testator, for the plantation, sold by him, in his lifetime.

*3412. That bis Honor erred in ruling that Alfred R. Drayton was entitled to receive the monies paid over to him by the executors, the same having been paid in contravention, it is respectfully contended, of the provision of testator’s will, directing his whole estate to be kept together, until after his daughter’s death.

3. That his Honor erred in ruling that, if there should be any surplus income, from testator’s crops and real estate, after paying his daughter’s annuity and after payment of his debts, the said Alfred Drayton was entitled to the same as residuary legatee, whereas it is respectfully contended that the same would pass, under the will, either immediately or ultimately, to the legatees of the corpus of the property.

4. That his Honor erred in refusing the application of the complainants, under the circumstances of the case, for a sale of the portion of testator’s property charged with his debts and his daughter’s annuity, and, after payment of his debts and securing his daughter’s annuity, to pay over the residue to complainants, according to their interests under the will, and in not making some provision for the immediate payment of testator’s debts.

5. That his Honor erred in not decreeing that the executors should account to complainants for their receipts and disbursements on account of the testator’s estate.

6. That his Honor erred in not decreeing that, by the republication of testator’s will by the codicil, the Greenville lands passed under the 9th clause of the will and not by the residuary clause.

7. That his Honor, it is respectfully submitted, should have ordered the costs to be paid out of the estate, or by others than these appellants and those in like interest with them.

*3428. That the decree was, in the foregoing and other respects, contrary to Equity, and ought to be reversed or modified, in some or all of the foregoing particulars.

The defendants, the executors of Philip Tidyman, appealed from so much of the decree as retains the bill, and sustains the second claim of the complainants, touching the delivery of the Greenville Farm, by the executors, to Alfred H. Drayton, the residuary legatee, upon the grounds, viz.:

1.That the decree in Rose *vs.*Drayton, by adjudging that the codicil republished the will of the testator, as a necessary incident, adjudged that the legal estate of the whole Greenville Farm vested in Alfred R. Drayton.

2. That the decree having ordered Alfred R. Drayton, as owner of the legal title in the Greenville Farm, to convey the part thereof agreed to be sold by the testator to the Rail Road Company, the legal title in the whole farm was indivisible, and vested in him by the same right, and the executors were legally justifiable, and bound to deliver it to him.

3. That the Chancellor was misinformed as to the facts of the case, in regard to the alleged rents and profits of the Greenville Farm. There were none such. The farm was never cultivated by the testator in his lifetime, nor were there any crops, or income derived from it by him, or his executors. He kept no negroes there beyond a few inferior domestic servants, and these were removed to the' Santee plantation by the executors, after the testator’s death.

*Yeadon,*for complainants.

Simonton, for Miss H. Drayton.

*De Saussure, Memminger, Petigru,*for executors.

(a)

4 Rich. Eq. 260.

*343Per Curiam.

This Court concurs in the opinion expressed by the Chancellor in the circuit decree. It is, therefore, ordered and decreed, that the circuit decree be affirmed, and that the appeal be dismissed.

JOHNSTON, Dunein, DargaN and Wardlaw, CO., concurring.

*Appeal dismissed.*