#### *Edward R.*Laurens, *administrator with the will annexed of Mary R. Green, vs. A. G. McGrath, executor of Ann Lehre.*

Testatrix directed that her debts should be “paid and satisfied in such manner and way,” as her *mother, Aim Lehre,*(her executrix) should *“deem*most advisable for her own interest,” and then made several specific devises and bequests, some of which were to her mother. *Held,*that Mrs Lehre, the executrix, in paying debts, was bound to conform to the rules laid down in *Warley vs. Warley,*Bail. Eq. 397, and that she was not authorized to pay them out of one or more of the specific legacies, in exoneration of the others.

An error, in the directions in the decree for stating the accounts, corrected, though not set down as a special ground of appeal.

Where personal estate, specifically bequeathed, is taken for the payment of debts, the whole is taken; and there is no foundation for a distinction between that which is directly and absolutely given, and that which is bequeathed to one for life, with remainder in fee to another.

*Before*JohnsoN, Ch. *at Charleston, June,*1844.

This case came before the court on exceptions to the report of Mr. Gray, one of the masters. The report is as follows.

*297“This case was referred to me to inquire and report thereon, and especially to take the account of Mrs. Ann Lehre, executrix, with the estate of her daughter Mrs. Mary Ann Greene, on which the complainant has recently administered with the will annexed. I have examined the account of Mrs. Ann Lehre, the executrix, with her daughter’s estate aforesaid, and find the items properly vouched, showing a balance in favor of the executrix, on the 22d March, 1839, of $704 11 ; and I find that in addition to that balance, there is also due from Mary Ann Greene, to the said Ann Lehre, by a written acknowledgment, the further sum of $468.

I find that the amount of debts of the estate of Mary Ann Greene, paid by her executrix, is $5,514 74, leaving the two items of $704 11 and $468, yet unpaid.

I also find that Mayy Ann Greene, by her last will and testament, dated the 24th November, 1825, and by two codicils thereto, after directing that all her just debts should be “paid and satisfied in such manner and way as my beloved mother, Ann Lehre, shall deem most advisable for her own interest,” proceeded to make the following disposition of her estate.

1. She gives half of a house and lot in Charleston to Mrs. Lehre for life, and after her mother’s death to Mrs. Baker for life, with remainder to Mrs. Baker’s children.

2. Half of a pew in St. Michael’s Church, to Mrs. Lehre for life, and afterwards to Mrs. Baker, and her children, as before.

3. Nancy and her children, Julius, Edward and Charles, to Mrs. Baker and children, in like manner.

4. Nelly and Hagar, to Mrs. Eliza Murden, for life with remainder to her children.

5. Gives her share of her grandmother, Mrs. Mary Lehre’s, estate, to Abigail Greene, of Rhode Island.

6. 200 acres of her moiety of land in Sumter district, to build an Episcopal Church thereon, and the residue of said moiety to Ann Lehre, in fee simple.

7. Moiety of lands in St. Stephen’s Parish, carriage, horses, furniture ; a moiety of Fountain Grove plantation, utensils, cattle, <fec., to Ann Lehre for life, with power of appointment by will.

8. Gives thirty slaves, viz: Aberdeen, Old Davy, Adam, Eve, Penelope, Beck, Cate, Katy, Dinah, Bess, Rose, Little Guy, Nat, Caroline, Simon, Lucy, Amaritta, Rebecca, Willoughby, Sophia, William, Sylvia, Ann, Henry, Hannah, Rynah, Beck, James, Emma, Matilda and Susan, to Ann Lehre for life, at her death *298one moiety to Mrs. Baker and her children as before, and the other moiety to be sold, and half the proceeds to Abigail Greene, the other half as follows.

To the Society for the advancement of Christianity in South $200,00 Carolina,

$100,00 To a Sunday School,

$500,00 “Bishop Bowen,”

And the residue to the children of Mrs. Eliza Murden.

9. This bequest is revoked by the first codicil, which gives Betty and her family, Penelope and Mary, to Ann Lehre for life, then to Mrs. Query for life, and then to Mrs. Baker and her children, on the same terms as the other gifts to Mrs. Baker.

10. The second codicil specially bequeaths James, Matilda, Beck, Emma and Susan, to Mrs. Baker and her children, on the same terms, thereby revoking the bequest of the thirty slaves, in which they are included, to that extent.

The testatrix then proceeded to appoint Mrs. Ann Lehre her executrix, and adds, “with full power and authority, if she shall deem proper, to designate such part of my slaves as shall belong to Ann Findlay Query, (Mrs. Baker,) under this my will, and such part as shall be sold.”

I further find that Ann Lehre, the executrix, duly qualified, and for payment of the debts sold the following slaves, Simon, David, Adam, Eve, January, Sam, Amaritta, Willoughby, Sophia, William and Nelly, all of whom, except January, Sam and Nelly, are included in the bequest of the thirty before named, and these three are not specifically given to any person.

That the slaves now remaining of the estate of Mrs. Greene, in Mrs. Lehre’s possession at her death, are' Guy, Bess, Rose, January, Little Guy, Nat, Dinah, Caroline, Harriet and Stepney, and another named Oliver; that the remainder of *the thirty*slaves have died.

I also find that the residuary estate of the testatrix consists of three slaves, William, Sam and Nelly, and the household furniture.

The complainant contends that such of the estate as was not specifically bequeathed, should have been applied first to the payment of the debts; that if the residuary estate was insufficient to pay the debts, the balance ought to have been charged on the estate generally, so as *to*require *the*specific legatees to abate *pro*rata; and that the executrix had no right to sell any portion *299of the estate to suit hex interest, when she thereby injured the right of others having an interest under the will.

It appears, however, from the foregoing statement, that, none of the specific bequests were affected by the sale made by the executrix, except that of the thirty slaves, in which she had the exclusive interest during her life ; and she appears to have selected from them, and from other slaves which were part of- the residue, under the general authority given in the will, and the special authority to designate such of her slaves as should belong to Mrs. Baker, and such as should be sold. It does not seem to me to be a proper case to call upon the other specific legacies to abate.

I submit, therefore, that the remaining property of the estate be divided and sold, and applied according to the provision of the bequest of the thirty slaves.”

To this report the complainant filed the following exceptions.

1. That the account is stated on incorrect principles, inasmuch as Mrs. Lehre should have paid the debts of her testatrix, Mrs. Greene, before entering upon and taking to her own use the income of the whole estate, while for several years the debts were increased by accumulation of interest, to the injury and prejudice of the devisees in remainder.

*2.*Because the residuary estate proving insufficient for the payment of the debts, they should then have been charged upon the estate generally, and the specific legacies would have been reduced *pro rata.,*

3. That Mrs. Lehre, the executrix, had no authority to apply any one or more of the legacies to the exclusive payment of her testatrix’s debts, thereby extinguishing some of said legacies, while others remained unimpaired, and the master erred in his report sustaining the account made accordingly.

*By the Chancellor.*— On hearing the bill and answer, with exhibits, and the report of Master Gray, with the exceptions of complainant thereto, it is ordered that the exceptions be sustained and the report be referred back to the master, with instructions to reform the account as follows :

1. By charging the debts of Mrs. Greene, as they were at the time of her decease, upon her estate, and disallowing all charges and payments made for interest accrued on said debts after the death of Mrs. Greene.

*2.*By charging the payment of Mrs. Greene’s debts upon her residuary estate in the first place, and that being exhausted, *300then upon her estate generally, thereby reducing the specific legacies *pro rata.*

The defendant appealed, on the following grounds.

1. Because the will of Mrs. Greene gave liberty to Mrs. Lehre to pay the debts in the way she might deem best, and the legatees of Mrs Greene must take subject to the exercise of such a discretion.

. 2. Because the decree is in other respects contrary to equity, and the same should be reversed or modified.

*A. G.*Magrath, for the motion.

*Campbell,*contra.

*Curia, per*JohnsoN, Oh.

It is not very clear what was in the mind of the complainant’s testatrix when she directed by her will that her debts should be paid and satisfied in such manner and way” as her mother, Ann Lehre “should deem, most advisable for her own interest,” and the direction strikes me as altogether inappropriate to the subject. It does not provide or point to the *means*of payment, and if it has any application at all, it must refer to time and circumstance. It might have been most to the interest of the mother that the debts should be immediately paid, or under other circumstances, that the payment should be postponed to a definite period, the means being those pointed out by the law. It never can be supposed that the testatrix intended, by this direction, to authorize the executrix to pay the debts out of one or more of the specific legacies, in exoneration of the others. That would defeat her expressly declared will.

There is an obvious error in the directions for stating the accounts, as regards the interest on the debts, doubtless the consequence of mere inadvertence ; and although it is not set down as a special ground of appeal, it is so palpable that the defendant is entitled to have it corrected. The effect of the directions would be to charge the property bequeathed to Ann Lehre with the payment of all the interest which has accrued on all the debts since the death of complainant’s testatrix. The idea seems to have been, and I suppose the instructions were prepared by the counsel, that the tenant for life is bound to keep down the interest on the debts as between the tenant for life and the remainder man. That is the correct rule in regard to the debts which are a charge upon the estate. Now, according *to the*rules laid down in *Warley vs. Warley,*Bail. Eq. 397, the residue of the personal estate is first chargeable with the payment of debts when no fund has been spcifically set apart for that purpose, and if that prove insufficient, they are to be paid out of the *301personal estate specifically bequeathed, the whole of course ; for there is no foundation for a distinction between that which is directly and absolutely given, and that which is bequeathed to one for lite with remainder in fee to another. Here, therefore, the debts, after exhausting the residue of the estate, must be charged rateably on all the specific legacies of personal property, so as to operate as a *pro rata*abatement of all those legacies. This, I suppose, is an abundant fund for the payment of the debts ; if it should prove otherwise, descended real estates, according to *Warley vs.*Warley, and last of all real estates specifically devised, are chargeable. The master in stating the accounts will therefore conform to these rules.

The whole court concurred.