*Columbia.*

Heard before Chancellor Dessausure.

#### Samuel Dunlap, and others, *vs.*Robert Dunlap, and others.

A will executed in the pr esenee of two subscribing witnesses, is not such an execution under the statute as will pass real estate, although the penner of the will was present at the execution 5 and a codicil executed in the presence of two subscribing witnesses, one of whom was different ftom the two witnesses to-the will, does not givs effect to the will, as to the real estate.

Sales of real estate made by the executors under the supposition, that the will was duly executed, rescinded.

An exchange ofroal estate, made by the testator in bi* lifetime) confirmed.

The testator having directed that hi* real estate should be subject to his debts, this is sueh an expression of his intention to exonerate his personal estate, specifically bequeathed, from his debts, that it shall be exempted, though the will was not so executed, as to pass real estate.

Tho real estate which descended, in consequence ef the imperfect execution of the will, shall therefore be applied to the payment of the debts, to protect the personal estate bequeathed.

The hill states that David Ellison Dunlap, late of Columbia, was at the time of his death, seized of a square of land in tho town of Columbia, containing four acres, and lying between Walnut, Laurel, Sumter and Marion streets. That the said David E. Dunlap, and his w'ife Susannah Potts Dunlap, were at the death of the said wife, jointly seized of three half acre lots in the said town, viz. Nos. 70,71 and 72, on Taylor street.

That Mr. Dunlap and his wife died on the 10th .day of September, 1804, but Mrs. Dunlap died first, both without issue. That by Mrs. Dunlap’s death, one half of her right in the three lots on Taylor street, vested in Mr. Dunlap, and the other half in Robert Ellison, her father.

The bill is brought by part of the heirs at law of Afp. Dunlap, for a partition of the lands, or some equivalent remedy.

The heirs at law of Mr. Dunlap, who are entitled to the whole of the square, and to three-fourths of the lots *306on Taylor street, are as follows: Three brothers and one' sister of Mr. Dunlap, and five children of a deceased brother, and seven children of a deceased sister.

Robert Ellison, who inherited from Mbs. Dunlap, one fourtli of the three lots on Taylor street, is dead, and his heirs are his widow and five children.

JUNE, 1812.

The bill states that Mr. Dunlap made a will of his personal estate, *but*died intestate as to his real estate, and made Robert Dunlap and William Ellison and others, executors, but that these two only qualified.

That these executors pretending to some authority to sell the lands of Mr. Dunlap, did sell the lots on Taylor street for sums of money unknown to the complainants, and that those lots are in the possession ofPeterSuau and Manoel Antonio, under pretence of ownership, or some right to hold them.

The executors are called on to set forth what part of the lands they have sold ; for what prices and at what times. Messieurs Suau and Antonio are called on to shew by what right they hold; whether they have a real right to any portion of the land; to account for use and profits, and to declare if they have any thing to shew why the prayer, of the bill should not be granted.

The complainants in an amendment of the bill, set forth that they are informed that the aforesaid executors have also sold the above mentioned square of land to William Howe and Samuel Dunlap, the younger, and that these purchasers have sold it to the honorable Abraham Notfc, and the object of the amendment is to maleo his honor judge Nott and those of whom he purchased, parties to the bill.

The bill also claims a division of a half acre lot on Plain street, in the possession of J. M. and Lucas Creyón, but it is discovered since the filing of the bill, that Mr. Dunlap made a verbal exchange of that lot, attended with such strong equitable circumstances in confirmation of the exchange, that it is not thought proper to pursue the claim relative to that lot.

The answer of William Ellison and Robert Dunlap admits that David Ellison Dunlap at the time of his death *307was seized of, one square of land in Columbia, but denies that he was seized of lot No. 27; admits that he was seized and entitled jointly with his wife to lots 70,71 and 72, and on her death to one half of her part of said lots. These defendants admit that the said David E. Dunlap, made his last will and testament, and did believe that it was duly executed to pass the real estate, an'd submit to the court, whether such ought not to be its effect for reasons which they assigned. The defendant, William Ellison does not know, and therefore neither admits nor denies that the persons named in the bill in that respect, are the heirs at law of said David Ellison Dunlap; admits that the persons named in that respect are heirs of Susannah Dunlap. Defendant Robert Dunlap, admits that the persons so named in the bill, are the heirs at law of David E. Dunlap, and the persons so named are heirs of Susannah Dunlap.

These defendants admit that they alone qualified as executors, and delivered over to the persons named in the will, the legacies specifically bequeathed to them, and sold the rest of the personal estate, which amounted to $984 6 cents; that the debts and expenses amounted to $3,380 40 cents, exclusive of a debt to the commissioners of Columbia, part of which remains due. The personal estate not being adequate to the payment of the debts and expences of the estate, defendants resorted to the real estate (as they thought they had power to do) and sold to John Shultz, lots Nos. 70, 7L and 72, and a tract of land near Columbia, for $1,714 28 cents. The lots were estimated, defendants believe, at $700. Debts being still due by the estate, defendants, in 1811, sold the square to Samuel Dunlap and Wm. Howe, for $1,200. Defendants submit, that as the evident intention of the testator to bo collected from his will, was to exempt the personal estate specifically bequeathed from the payment of his debts; the real estate is the proper fund to be so applied, after exhausting the whole pei’sonal property, except the specific bequests, even though the will be not valid as to the rleality. Defendants trust that the court will support the sales of real estate, and confirm the titles of the *308purchasers, when they will pay over any balance in tlieif hands to the persons entitled.

The answer of William Howe and Samuel Dunlap, the younger, purchaser» of the square of land in Columbia, from the executors, admits all the facts admitted by the answer of the executor*. It admits the purchase of the square by them for Si,200, in 1,811, and that this was the highest price that could have been procured. Defendants allege that contract was made some time before titles were *executed;*and When executed, admit that they sold the square to the honorable Abraham Nott, for $1,500. That they gave their bond to said Abraham Nott, conditiohed to make titles to him, when the first payment was made. Defendants thought the executors had the power to sell. They purchased because Robert Dunlap was in advance for the estate, but Was indebted to them in the sum of $400, which discount would cut off a part of the purchase money.

The answer of John M. Creyón, admits that David Ellison Dmdap was seized and possessed of lot No. 27, but exchanged half of the same for half of an adjoining lot, and sold the lot thus constituted, to John Marshall, and as this defendant believes, received payment for the same.

John Marshall sold and conveyed the same to this defendant, and received payment. Afterwards William Ellison, by deed of bargain and sale Conveyed to this defendant the lot he had procured by exchange from David E. Dunlap.

The answer of Abraham Nott alleges that soon after the death of David E. Dunlap, William Ellison and one Dunlap, executors of said David, offered him for sale the square of land mentioned in the bill, but doubting their power under the will to sell, he refused to purchase. That in the year 1807, Samuel Dunlap and William Howe, offered him for sale the same square of land mentioned in the bill, and which they had purchased from the executors. That he informed them of the defect which ho understood existed in the willofthe saidB.E. Dunlap. But they informed him he ¡night purchase with perfect *309Safety, that the said sale was mad? with the consent of all the heirs, and that they would join in confirming the Contract. Giving credit to this representation, and find.ing that seven years had elapsed, and complainants had »ot preferred any claim, this defendant purchased the said lot from Howe and Dunlap, for $1,500, payable at stipulated periods, and took a bond from them to make good titles, on or before the payment of any part of the purchase money. Defendant submits, whether the sum so stipulated be not the full value of the land, and prays that his purchase may be confirmed, or that his notes may be delivered up.

There was no dispute about the facts in this case, and no evidence was adduced on the trial of the cause, except Mr. Simon Taylor’s statement, it was agreed that the late Reverend David E. Dunlap, made his will on the 9th September, 1804, by which he devised and bequeathed all his real and personal estate to his wife and her heirs, (except such parts as are otherwise disposed of) after payment of his just debts and .funeral expenses. But if she should die without issue, or again, marry, then he directed that the three negroes, Job, Moses and Prince, should be the property of his three brothers, Robert, Samuel and William. And the testator requested of his said brothers, should the said negroes bo unwilling to be removed, that they would allow them to be sold, and the money arising.from the sale to be equally divided among his brothers. Should his wife die without issue, then he directed the wench Rachel and her issue and his household furniture to be given to his sister-in-law, Sarah E. Ellison. He bequeathed, to his sister, Mrs. Stevenson, a negro Woman named Pembo. lie then ordered the remainder of his real estate, consisting oflots and squares in Columbia, anda plantation adjacent to it, to be sold in whole or in part, at the discretion of his executors, with his cattle, hogs and horcas, to defray his funeral expenses and to pay all his just debts ; Provided the same should he necessary. He. ordered a debt due him by Col. Moore, to be applied to the payment of two debtsj to Mess. Purvis and P» Moore, and *310c0# After «ame other small legacies, ha named severe, friends to be his executors.

This will was executed in the presence of two sub* Ecribing witnesses.

It was further agreed, that Mrs. Dunlap, the wife of the testator, died on the 10th September, 1804, without, leaving any *issue;*and the testator immediately, on the same 10th September, made and executed a codicil to his will, by which after reciting the dispositions of his will as to his real estate, and that he had intended the surplus if any to go to his wife, but that it having pleased God to take her away, ho (by the said codicil) gave and bequeathed to his brothers and sisters by name, and the children of a deceased brother and sister, all the aforesaid balance of money, or residue or remainderof the said real estate, to .be divided among them and their heirs. And he bequeathed several other small legacies.

This codicil was executed in the presence of two subscribing witnesses, one of whom had not been a subscribing witness to the will. The testator died soon after making the codicil aforesaid.

It is agreed, and Mr. Simon Taylor proves the fact, that lie wrote the,will and the codicil abovementioned, at the request* and by the direction of the testator, and saw him sign and acknowlege them as his last will and codicil. And that he saw the subscribing witnesses sign the same as witnesses in the presence of each other, and of the testator. And the said Simon Taylor attached the codicil to the will, in the presence of the testator. But Mr. Taylor did not subscribe cither the will or codicil.

Some of the executors named in the will qualified thereon, and supposing the will and codicil duly executed, they sold to several persons different parts of the real estate on credits ,* and either gave titles, or bonds to make *titles;*and took bonds from the purchasers for payment of the purchase money.

They also delivered fho specific legacies of personal property to the legatees. They also sold the personal estate, not specifically bequeathed, and applied the proceeds towards the payment of the debts. Bat there re* *311mins a considerable sum still due by the estríe to sundry creditors.-

It appears by the pleadings, and it was agreed, that one of the lots of land mentioned in the bill, was exchanged by the testator in his lifetime for another lot, and possession reciprocally given, though no titles were executed: And that the testator sold the lot which he acquired by the exchange : And also that the person with whom he made the exchange, sold the lot which he acquired to Mr. Creyón, and gave him titles, and he has remained in possession ever since. The complainants very properly consider these circumstances as establishing such an equitable, if not legal title, in Mr. Creyón, as entitles him to hold the same undisturbed by them.

The answer of the executors who are defendants in this case, seemed to make it a point in the case, that the will was duly executed, as to the real éstate, notwithstanding there were only two subscribing witnesses. And some reliance was placed on the facts proved by Mr. Simon Taylor, as establishing a sufficient execution of the will under the statute of frauds. But the counsel very properly laid little stress upon this point. For admitting the truth of every word stated by Mr. Taylor, (and there can he no doubt of the truth of his statement,) still the question arises, to .what does it amount? That Mr. Taylor was present, and saw the execution of tiic will, and might have become a subscribing and attesting witness under the statute *$*but that in point of fact, he did not become so ; he did not subscribe the will at all. Now the statute is so clear and peremptory on this point, that it is impossible to get over it. Nay, if Mr. Taylor had after the execution of the. will in his presence actually subscribed the will aB a witness, but in another room, and out of the presence of the testator, this subscription would not be sufficient.

The will so imperfectly executed cannot pass real estate. Such is the law, and I must be governed by it, I therefore lay this point out of the case, and proceed ,iro flic consideration of the other questions which arise.

*312Some reliance was also.placed in the pleadings oa .^)C fact that there were two subscribing witnesses to the will, and two to the codicil, which was written on the °f the will. It was insisted that one of the subscribe jng witnesses to the codicil, being a different person from the two who subscribed the will; there were three witnesses to this consolidated will and codicil; more especially as the codicil referred to the will, and affirmed it by an irresistible implication as to the sale of lands : All which amounted to a due execution of the will under the statute. And that the court would favor this construction to support a fair will, and to give effect to the intention of the testator. I was at first struck- with this argument, particularly when I adverted to the cases Which have established that if there be three subscribing witnesses to a will, it is not necessary that they should he present *together;*nor that they should subscribe the will at the same time : Provided, they witness the execution by the testator (by actual signing or acknowlegd-jnent) and subscribe it in his presence j nay, that an interval of four years between the signing of the witnesses, has not prevented the will from being valid, the requisites of the act being complied with. 7 Bacon, 308, 9. 2 Atk. 176, Sanders’ notes. *2*Vez. sen. 455, 6. S. C. Jones *vs.*Lake.

But upon reflection, and upon authority, I am satisfied that this will cannot be supported, as executed con-formably to the statute. The same point came before lord Chief Justice Holt, and the three other judges of the king’s bench. Upon examining the cases as stated in 8 Viner, 130, and as more fully reported in 1 Shower, 65, 69, 88, under title oí' Lee *vs.*Libb, the circumstances appear to have been precisely those, which are in the case before the court. For the will had two witnesses, and the codicil had two witnesses, one of whom was different from the two in the will. The codicil referred to the will and affirmed it, as far as not altered by the codicil; hut gives some things differently from the will, -as in The case before us¿

*313It was admitted by the court that there were three Witnesses to the intent of the testator, but only two to his will in writing; and that there were two witnesses to the codicil, one of whom was to the will, and the other not 5 so that there wanted one witness to the will in-writing. And" the court unanimously decided that this was not a good execution under the statute. 8 Yiner, ISO. 1 Shower, 65, 6, 9, 88, Lee vs. Libb.

I am of the same opinion, and will add that if " one of the witnesses to the codicil was allowed to substantiate the will, by proving the codicil, which refers to the will, he would not support the will as executed, but would alone support the Codicil which varied it. Besides the act requires that the party sign the will in the presence .of three witnesses, which has not been done.

I feel very great regret that I am not at liberty to set up and establish this will. No one can doubt of the testator’s intention, that this will should be effective as to the real estate, and a judge must always regret that he is obliged, by a strict adherence to the letter of a statute, intended to secure the due execution of wills, to prevent the intentions of the testator from taking effect. I feel bound to adhere to the statute, as well in this case as in others, though the circumstances are the strongest I have over known. If I could escape from the dilemma, I would most willingly *;*but I dare not violate what I con* ■aider the literal provision of the statute, and the decided Cases which form the land marks of property. If the parties or their counsel are not satisfied with this opinion, I should he disposed to direct an issue at law, to try the due execution of this will, if that measure be desirable to the parties. For they have a right in cases which turn, upon the due execution of a will to have a trial by jury.

This court has not authority definitively to declare tvhat is, or what is not a man’s last will. 2 Yez. sen. 459, 460. 3 Bro. P. C. 358. Kerrick *vs,*Bransby, *5*Yez. jr. 647. Ex parte Fearn, noto a, 13 Vez. jr. 297, Pemberton us. Pemberton. Or if the counsel have any doubts upon this point, I shall be very glad to have it carried up to the Court of Appeals and settled there.

*314The next question is, whether these legacies did *not*lapse by the death of Mrs. Dunlap, in the lifetime of the testator.

It is certainly a general rule, that if a legatee dies before the testator, the legacy shall be lapsed, and sink into the residuum of the testator’s personal estate, however the legacy may be giren to the legatee, his heirs, his executors, administrators and assigns. 4 Bac.' *387.*2 Fonb. 3685 9. 1 Bro. C. C. 84.

But there are various exceptions to this rule, and amongst others, one exception is, where the legacy is given over to others, after the death of the first legatee, for in such a case, the legatee in remainder shall have it immediately. Toller’s law of Executors, 304. 2 Fonb.-369.

But it is objected, that though this be true, the limitation over must be within the rules on that subject, or else the limitation will bo void, notwithstanding the lapse by the death of Mrs. Dunlap, in the lifetime of the testator and that the legatees in remainder cannot take.

The learning upon this subject is exceedingly complicated, and it cannot be denied that there have been contradictory decisions.

The devise in the will in this case, is as we have seen of all the testator’s real and personal estate, to his wife and her heirs forever. But if she died without issue, or again marry, then he ordered that the three negroes, Job, Moses and Prince, should he the equal property of his three brothers, Robert, Samuel and William; and he requests, if the negroes desire it, that his brothers would sell them, and divide the money among them.

The first words of this clause of the will would undoubtedly have carried an estate tail, if it had *been*a question of the devise of real estate merely. Consc--quently, according to the established rule, tiio.se words Would have given an absolute estate in the personal property bequeathed *to the legatee.*And if the clause liad not contained other words, the limitation over must have been declared void, as being founded and depending 011 *315Fearne on Devises, H6, an indefinite failure of issue. 144, &c.

But the subsequent words qualify it in such a manner as to raise the question, whether, the testator really meant the limitation over to depend on an indefinite failure of issue, and whether the qualifying words do not alter the case materially.

The rule that the devise over, after a dying without issue, is in general void, is subject to various exceptions, which arc illustrated by many important decisions. Fearne, 179.

The great exception is that, wherever the devise is to one, and his heirs or issue, with an executory devise over, limited to take place on an event which must happen within the compass of a life or lives in being (and 21 years and ten months after) such limitation over is good. Fearn, 181,186.

And with respect to executory devises of personal estates, the strong leaning of the Court of Equity, is to lay hold of any words in the will, to tie up the generality of the expression, of dying without issue, and to coniine it to the dying without issue living at the time of the person’s decease; which would be within the prescribed limits, and therefore good. Fearn, 186.

A bequest of a term for years, for raising “portions on either of two contingencies, of which one is within the allowed limits, will be good on that event occurring; and the court said it would not enter into the consideration, how far the other branch of the contingency might have been supported. It is of no importance in a case where the restrictive circumstances appear to prevent its being a devise, depending on an indefinite failure of issue, whether tho personal estate was limited tothedavisee or legatee generally, (as in Hughes *vs*Saycr) or for life, (as in Target *vs.*Gaunt) or to .such legatee and his heirs, or heirs of his body, or issue, or children, (as in various cases decided,) for the restriction is equally valid under any of these circumstances, and gives effect to the limitation over. Fearn, 224,5 : 2.S0.

*316The case of Keily *vs.*Fowler, determined on appeal to the House of Lords, is a strong case to shew theavidi* ^Jr with which the court lays hold of aiiy circumstance however slight to support these limitations ef personal estates. The limitation over appeared to be on a dying without issue generally. For the testator bequeathed all his property to his daughter, but if she married without the consent of his executors, or died without issue, the property should return to his executors, to go as he directed, viz: Certain pecuniary legacies to different persons, and 20 cows and a horse to his daughter, and the remainder to be equally divided among las sisters’ children. It was decided by the Chancellor in Ireland, and affirmed by the House of Lords, upon the opinion of the judges, that the limitation ovor was to take effect on the death of the daughter, without issue, then living. Consequently was a good limitation, and *must be*permitted to take effect. Fearn, 256, *7,*8, 9.

The circumstance of one of the contingencies, the alternative of the daughter’s marrying without the consent oftlie executors, (which must happen, if at all, in her lifetime) and of-the return of the estate to .the executors, and the nature of the chatties (cows and a horse) given *to*the daughter in the event of her marrying without consent, was not suitable to-the supposition Of an indefinite failure of issue j every'thing-seems to have >led-to this conclusion and decision.

And two of those circumstances occur in the case before us | the limitation over was of negroes, and on the Wife’s marrying again, besides another important circumstance, which will be noted hereafter. So where the bequest is to a daughter, and if she die without issue of her body, the limitation over is to two, equally to-be divided | the court declared the limitation over to C. and D. is good. The direction is to divide, and therefore personal to C. and D. The division to be made between C. and D. shews that the testator looked to such division in their lifetime, and therefore did not mean an indefinite failure of issue, Circumstances, of equal import «ecus* *317in the case under oiu' consideration. Fearn, 242, -245. 1 D. and 35. 59S, Lyd® *vs.*Lyde.

In these cases it will be found that Lord 'Chief Justice "Wiimot (Fearn, 245) is of opinion that the most trifling circumstance is sufficient to indicate or imply an intention So use such words in their restricted sense, to wit, issue then living. And Mr. Justice Buller agrees with him, and adapts his very words in a subsequent case. Fearn, 242, 252, 260.

The case of'Shcppa-rd *vs*Lossinghatn, reported by Ambler, 122, and stated b-y -Fearn, -266, &c. is a strong ease to shew that the construction .ought to be made to answer the intention, wherever the intention dods not aim at restraining the alienation of property longer than is admissible by law in the ordinary course of enjoyment ■of it. In that case there were two clauses differently penned, one of which was not too remote according .to the ordinary construction, and the other too remote. Birt the intention seemed to be the samein both, and lord Ha-rdwicke declared that the same construction was to be put on *both;*and the limitations in both were supported, -on the ground of intention. The maxim noscitur a sociis "was applied to the two clauses, and took the latter limitation out of the rule. 'Fearn. 270, 1, &c. 2 ¥ea. 118, Exdl *vs.*Wallace. Also Fearn, 454.

See too, Longhead *-vs.*Phelps, Sir Wm. Blackstone’s Heports, 704, v/here it is decided, that where there isa trust for raising portions on either of two contingencies, and one of them is within the proscribed limits, it will be good-in that event, or if -that contingency happens. Fearn, 154, 5 ; 216,457.

In applying-these principles established, or illustrated by the decided cases' which have been noticed, we shall not have much room for doubt in the caitse under consideration.

There are many circumstances to satisfy our minds, -that the testator did not mean to ground the limitation on an indefinite failure of issue of his wife. In the first place there is a contingency with a double aspect. The limitation over is to take effect either on.the wife?s dying *318without issue, or on her again marrying. One of these contingencies taken by itself, seems to come within the. rulo, and it is too remote. The other clearly not, for it must happen during her life, as if she ever married again, it must be in her lifetime.

And we have seen by the decided cases that where one of the contingencies is not too remote, and the other is too remote, that the limitation shall *be*supported. But not to rely too strongly on this ground, (as the contingency which has happened, to wit, the dying without is-' sue, is that whereon the limitation over is now claimed,) we shuilhe led to the same conclusion by the other circumstances in this case. The property bequeathed and limited over to the three brothers, was three negro men. Now the very nature of the property shews that the testator could not have contemplated an indefinite failure of issue. Besides, he desires that Ills three brothers (if these negroes desired not to be removed) should soil them and divide *the*money. All these are acts indicative of the testator’s looking to the limitation taking effect, if at all, noton an indefinite failure of issue, (which might pass the limit of the lives of all these persons) but to what must occur in the compass of a number of lives then in being. For tiie persons living were to perform these acts.

Another argument might he drawn from the peculiarity of the wording of these *limitations ; but as*it would be more refined than the foregoing, and is not necessary to bring us to the conclusion at which wc have arrived, I shall not go into it,

I am then satisfied that the limition over of the throe negro men, to the three brothers of the testator, is not too remote; and therefore that this is a good legacy to them, which did not lapse by the death of Mrs. Dunlap before the testator, because of the limitation over.

I am much more doubtful of the legacy of the negro wench ilachcl and her family, and the household furniture to Mrs. Ellison. The limitation over is put upon the naked dying without issue, of the wife of testator, which is clearly too remote. But as the words, “to be given to my well bclsved sister-in-law, S. FS. Ellison, to *319bo disposed of as sbe may think proper, do not seem to look beyond Mrs. Ellison, and the disposition spoken of to be made by her, seems to be a personal act which could not reasonably be expected to be perfomed'by her, if grounded on '*■ .failure of issue, and as the ceurt seizes the smallest circumstance, to prevent bequests of personal estate from failing by the operation of a mere technical rule, I will venture to say, that even this limitation, worded as it is, is not too remote *;*but shall have effect. But in this opinion I am not by any means confident.

The argument, however, in favor of these limitations over, does not rest here: It was contended that Mr. Dunlap, the testator, after the death of his wife, executed a codicil, which was in effect a republication of the will, adapted to the new state of things arising from the death of his *wife;*which republication would confirm and give full effect to the clauses of the will, bequeathing the legacies therein, stripped of the intervening estate given to the wife, which had lapsed so far as they related to her, by her death in the testator’s lifetime.

To this it was objected, that the codicil could not he said to confirm the will 3 for the codicil says nothing and gives nothing of the personal estate, (except a few new legacies) and the gift to Mrs. Dunlap had, in the meanwhile, lapsed, and the limitation was too remote 3 so that the republication amounted to nothing and confirmed nothing.

It may he strongly answered that the codicil referred to the will — speaks of the death of the wife — new models part of the will — makes some new bequests, and leaves others untouched as they stood on the face of the will. What is the plain language of this conduct of the testator ? It is this, My wife is dead without issue. The proceeds of the sale of my lauds, which I had ordered by my will, to he sold, I intended for mv wife 3 hut site-being dead, I therefore give the same to some others of my friends. As to those legacies given to my brothers., to take efibet on the death of my wife, I leave my will as it stood, because, as she is now dead, they will doubtless *320ijg; immediately entitled to those legacies, now that tha intervening estate of my wife is gone»

It is pretty obvious that the testator did not mean to ^i° intestate as to any part of his estate,, for at the awA fid moment when Ms wife lay dead, and hi» own- death was rapidly approaching, he makes this codicil to bequeath what he thought would be undisposed of in consequence of her death; to wit, the residue of the sales of Ms-real- estate. *Yet*he leaves these specific personal legacies undisturbed. I think a strong inference arises that he meant them to go in the way he had originally expressed, but of coarse relieved from the intermediate estate given to the wife.

But it. is said we cannot argue in this way,, because we are not at liberty to receive evidence that the wife died without issue, and that the husband knew this,, and therefore framed a new will accordingly.

It might be sufficient *to*say, that the pleadings i® the cause state that fact as part of the case upon which the court is called to decide. 3 am aware that there ar® decided cases which say that the court cannot receive evidence 'of a fact to assist in explaining the testator’s Will — -Brown .-us, Selwyn, Cases Temp. Talbot, 240; May-hanks *vs.*Brooks, 1 Bro. C. C. 84 ; 9 Yezey, jr. *575.*

These cases go to shew that parol evidence shail *not*be received to *¡trové that the testator*knew of the death of legatee at the time of making his will, as an argument that he intended that the legacy should be transmissible to the legatee’s personal representatives. But these cases do not come up to this; and none of them deny but that the court may receive parol evidence to solve» nay, even to raise an ambiguity in a will. The cases on this point are numerous, complicated and sometimes at variance. But it is not necessary to go into them on this occasion, for I do not think parol evidence necessary to make out the case ; though if if were necessary, I think I should admit it here. What are the facts 2 A man has made a Will and given his property chiefly to his wife, with limitations over in case of her death without iss'ue. She dies in his lifetime, and he makes a codieil varying" *321í^íb will in some particulars. Can it be supposed for a moment that the husband was ignorant, whether his wife died without issue ? I cannot presume it. 1 must and I do suppose that he knew intimately the state of his wife’s family and his own, which were the same* Proof is un« necessary. It is impossible to doúbt in such a case that a man knew the state of his own family. And in every case the relative situation of the parties is ,always brought to the view of the court, as essential to enable it to elupi* date the truth.

The effect of the repuhlication in this case alone» seems to have been contested. It appear^ that there Was not much doubt at the bar, that the execution of .-a codicil referring to a Will, amounts to a repuhlication.-^ And there can be no doubt of it now, after the case of Acheriy and Vernon, reported in 1 P. Williams, 783» Which first introduced constructive re-publications. After the statute of frauds the court-fluctuated a long time$ sometimes it held that a codicil though distinctly referring to a will, was not a republication.*--l Vezey, 489 ; Ambler, 550, 571. Sometimes that it was a república» tion — 1 Vez. 437 ; Amb. 487..

The case of Barnes *vs.*Crow,Teported-4 Bro. C. C. 2, and 1 Vez. jr. 486, decided independently of other considerations, that the execution of a codicil in all cases should bo an implied repuhlication of a will. This affords a certain rule, and has been followed ever since j except where as in the case of Stathmore *vs.*Bowles, it appeared distinctly on the face of the codicil, that the testator did not mean to republish the will. But whether we adopt the» doctrine to the extent it has been carried in England, or not, there can be no doubt the codicil was a republication of the Will in the case before us, in such a shape as to affect the personal estate, for it was not only annexed to, hut actually written on the back of the will, and refers to it; and even this, according to lord Camden, was sufficient to make it a republication of the will; though h© did not think a codicil not annexed was a republication of a will. — Ambler 573, 3, 4, Attorney General *vs.*Bow-sing.

*3221 must thereforedecide that the codicil in the causé ‘ now under discussion, was a republication of the will. — » ^ mus^ no^ f°rg°&en> that this codicil imperfectly executed as to the real estate, though "a republication of the will, could not give effect to the dispositions made of the real estate„by that will, which was itself, imperfectly executed.

Another question made in this case was, whether • the specific legacies shall be exempted from the debts, and the real estate brought to the aid of the personal estate to give effect to the exemption..

It was said, in argument, that this was not only not practicable under this imperfect will and codicil, but that the testator did not intend it-; for be bad given the specific legacies subject to -the debts.

This however is not correct. For. whatevewdoubts might have at first arisen as to the intent, from the first •words of the will, the subsequent words shew the real intent of the testator, to be that his real estate consisting of lotsin Columbia and lands adjoining should be sold, to pay his funeral charges and all his just debts.— Nothing can be clearer then, than that the testator meant all his debts should be paid out of the sale of these landed estates, aided by the sale of his cattle and horses, &c.

Blit it is objected that the will and codicil being' both imperfectly executed, so as not to pass lands, this charge of the debts on the real estate must fail, even if jhe charge would have exempted the personal estate, and then the ordinary rule of law must prevail, which assigns the personal estate as the proper and primary fund for the payment of debts.

A great deal of dispute and doubt formerly existed on the, question, what amounted in a will toan exoneration or exemption of the personal estate from the debts of the testator. In lord chancellor Talbot’s time, be laid down the rule to be, that the personal estate is the natural fund for the payment of the debts; and which, as against creditors, the testator cannot exempt without their consent. But against the devisee of land he ■ may, by appropriating his land as a fund for the payment of *323*his*debts. ' Bitt he said there ought to be express words or a plain intent to exempt the personal estate. — 3 P. Williams, 323, 4, 5, Hazlewood *vs*Pope, and cases there cited in note . (2;) 1 Bro. C. C. 454, Ancaster, *vs.*Mayer.

But the personal estate would not be exonerated by the mere charge of the debts on the real estate ; express words or plain intention upon the whole will are necessary. — 9 Yezey, 447, AVatson *vs.*Brick wood ; 6 Yezey jr. 567, Bridges us. Philips ; 11 Vezey, 179,186, Hancox *vs.*Abby.

A provision for the payment of the debts out of the real estate is not sufficient — >8 Yezey 295, 306, Milner *vs.*Slates; Ibid. 125, Harwood *vs.*Oglander.

In the case of Leland *vs.*Shaw, decided hy lord Itedesdale, and reported by Schoals and Lefroy, 2 voL 538, the subject is luminously treated, and that eminent judge declared, that the case of Wehb *vs.*Jones, decided by the master of the rolls, (Sir Lloyd Kenyon,) in 1786; was the only one in which it has been held that,personal estate, has been exempted from the payment of debts and funeral expenses, without express words for the purpose, or such as to raise a presumption that the testator meant to make the personal estate the subject of a specific bequest, and therefore not liable to debts.; because specifically given as a legacy.

And the difference between a direction to sell a real estate out and out, (either disposing of the residue by the will, or leaving it to go to the heir) and charging such real estate with the debts, has been long exploded as to its effect in exempting the personalty from the debts. — » Cas. Temp. Talb. 208, Stapleton *vs.*Colville; Ambler, 38, Inchiquin *vs.*French ; but see also 3 Atkins, 566 ; 2 Bro. C. C. 257; 3 Vezey, jr. 114, for another distinction not necessary for us now to pursue.

It will still turn on the question of intent to change the nature of real estate to personal, and to follow the fate of the personal.

In applying this law to the case before the court, there can. be no doubt that _ there is sufficient *on*the üiqjí *324of the will and codicil to shew the clearest intent in thfc testator, to change the real into personal estate, and to make it the fund to pay the debts. He orders it to be sold» and directs the proceeds of it to be applied to the pay* ment of his debts; and bequeaths the balance, if any, as money, to certain legatees. And these being specific legacies, I have not a shadow of doubt that if the will could b@ carried into effect, these legacies would be exempted.

This brings us to the last question. As the will *is*not duly executed to pass real estate, and no sales of th© real estate can be made, but that must descend according to the act of 1791, must these specific legacies be made liable to the debts, and the lands be entirely exonerated?

It was argued that the specific legacies are exempt of course from the debts, and that the lands must be applied first to the payment of the debts. First, — -Because they are specific, and are never liable to debts till all her funds are exhausted. Second, — -Because the testator manifestly intended that it should be *soj*and that though the will, and codicil are not executed so as to pass real estate, they may operate as evidence of thé intention of the “testator, to exonerate the personal estate so Specifically *bequeathed;*which will leave the real'estate liable to the debts, by operation of law, which subjects real estates to debts in this country, even without a plea of plene administravit, as it is said has been decided at law by the constitutional court. And that as executors may thus cause lands to be sold circuitously, they may do it directly to give effect to the intention.

It is true, that by the general rule, specific legacies are exempt from the debts, Whilst other property remains sufficient to pay the debts. But this relates only to personal assets, and hot to real estate. This rule is drawn from the English law $ and to be sure the reasons for making this discrimination between real and personal estate, do not exist in so great a degree here as in England. The descent to the eldest son is broken by our act of 1791, which places all the children on an equal footing, as to real as well as personal estate. And lands *325are made more directly subject to debts here, by the act of parliament of 5 Geo. 3 c. 7, (Grimke 250,) which has been recognized in practice in this country. It is also true, that the judges have at times said, the various Scts have nearly reduced real to the same footing with personal estate. But the act subjecting lands to the payment of debts, was never supposed to have levelled real to an equality with personal estate, in-the administration of the assets of a deceased person. In the case of "Wilkinson *vs.*executors of Wilkinson, decided in our own court in 1791, we find the judges expressly' declaring that the personal property is the proper fund for -the payment of debts in the first instance. And in Hartly, Stewart and ethers, *vs.*Carson executor of Carson, decided in 1796, we find the judges in this court deciding, “ that the act of 1791, abolishing the rights of primogeniture, related entirely to cases of intestacy, and has left the laws for the administration of assets just where they were. It would, therefore, he too bold for this court to íevelalltheiawsand practice of the country in the mode of the payment of debts to what might be conceived to be the principle -of the law abolishing the rights of primogeniture, by placing real and personal estates on the same footing in all cases. And it does not even appear that this was the intent or spirit of that law.” This is directly to the point, and this law has never been shaken. And when we remember that notwithstanding the approximation of real and personal estate in many respects, the act of wills still maintains the same marked distinction between them, as to the disposition of the one or the other, we cannot but ágree with these learned judges, that it does not appear to have been the intention of our legislators to place them in all respects on the same footing. This is a question of great importance, and' ás'thc situation of real and persona! estate is very different in this country, from what it is in England, and there i¿ a great diversity of opinion at the bar, it might be as well to carry it up to the court of appeals.

Now the order for the payment of debts in the. administration of assets is. well settled. -The first fund is *326the personal property not specifically bequeathed ; thefi, land devised (by an effectual will) for payment of debts, an(l not merely charged with the payment of debts j then ^esceu^e<^ estates; then lands charged (by an effee-tual will) with payment of debts. — -Harwood *vs.*Oglan-J der, 8 Vez. 125 and prior cases.

But it is contended, that the will and codicil though not duly executed to pass real estate, manifest the intention of the testator to exempt the specific legacies j and leaves the real estate to the payment of the debts, to which it is subjected by law ; and this court will give effect to such intention.

It would be a great satisfaction to the could; if it could protect and exempt these legacies from the debts according to the manifest intention of the testator. But how do we come at the intention of the testator ? By reading his will. But wc are not at liberty in this ease to read the testator’s will as it relates to the real estate* because it is not duly executed according to the statute. We may, indeed, as the clauses are blended and inseparable, give a formal reading to those parts which relate to the real estate; but we cannot give effect to them; else we should violate the statute law. They must be considered a nullity, a dead letter.

Then how does the case stand ? Here is a will good only as to personal estate. It gives certain specific legacies. These must be preferred, and all the rest of the personal estate must be exhausted, before we can toucla these specific legacies, to assist in payment of the debts-But the real estate is not liable except on failure of the personal,, unless the testator expressly makes it so, by a will duly executed, so as to affect the real estate, which is not the case here.

Some reliance was placed by the counsel for the defendant on this ground, that as the statute Géo. 2d, ch. 7. has made real estate liable to the payment ot debts, and as some decisions in the constitutional court have ■Settled, that they may be sold under judgments obtained against executors or administrators without a pica of .fcloneadministravitj shewing that the personal estate & *327éxhausted, that executors and administrators may sell lands directly, as well as to suffer them to be sold in this indirect way.

¡F'» I cannot, however, agree to this. The former is the act of the law; the latter would be their own act, for . which they have no warrant, not having any estate in the land as they have in the personal estate. All their sales of the lands of this estate not perfected, so as to enable the purchasers to plead that they are purchasers for valuable consideration without notice, are void and of no effect. They cannot make a good title to the purchasers.

With respect to Mr. Crayon, the case is very differ-, ent. There an exchange of lands had been made by the testator in his lifetime with another person, and possession mutually given; and the testator sold the land he acquired by the exchange : and the other person with whom he was dealing sold to Mr. Crayon what he had acquired by the exchange. I consider this as a complete tranfer of the property, so that the same should not be shaken.

Upon the whole, we have come to the following conclusions.

That the legacies bequeathed over on the events of the wife of testator dying. without issue, or unmarried, did not lapse on her death in the lifetime of testator, on account of the limitation over. That the limitation over was not too remote, but was good and effectual.

That these legacies were protected from the debts of the estate, as long as there remained any personal estate, not specifically bequeathed sufficient to pay the debts. But that notwithstanding the plain intention of the testator to make the lauds subject to the payment of the debts, in ease of the personal estate, by ordering the x*eal estate tobe sold, and the money so applied, that intention cannot prevail; because the will was not duly executed according to the statute. And finally, that the law has not yet placed real and personal property upon an equality as to payment of debts in the course of administration.

It i,s therefore ordered and decreed, that the whole *328personal estate of the testator, (beginning with that fieri: specifically bequeathed) be applied to the payment of the debts of the testator. And on failure of that, the defi-tie«cy shall be made good out of the real estate of the testator. That to effect this, the real estate be sold; and the amount sales be applied to payment of the balance of the debts; and the surplus, if any, be equally divided among the representatives of, the testator under the act of im.

That Mr. Cieyon’s title be confirmed.

It is also further ordered and decreed, that the sale of the lots in Columbia, made by the executors, under an idea that the will was duly executed, be set aside and declared null and void. And that the notes given by Judge Nott, he delivered up to him, to be cancelled.

HeNKY *W.*Desaussure*

From this decree an appeal was made.

The defendants give notice, that they shall appeal from the decision of the Court of Equity in this case, and on the hearing of the appeal, shall submit the following grounds:

First, — That the will of the testator, D. E. Dunlap* was duly executed to pass his real estate.

Second, — «That tinder the Will, the specific legacies áre exempted from, the payment of debts, until the real estate descended, is exhausted ; and that the decree directing the application of the personal estate, specifically bequeathed for that purpose before a resort to the real estate is incorrect.

Third, — That the decree is incorrect in ordering a recision of the sales of the real estate made by the executors.

A. Blanding, defendant’s solicitor.

At the hearing of the appeal, the first and third grounds were given up by the counsel for the appellants *$*and the second ground was argued.

After the argument, tiie court delivered the follow-, ing decree:

Several grounds of appeal were made in this css* *329but some of them have been abandoned, and the only one insisted on is, that the decree has subjected to the payment of the debts of the testator, personal property specifically bequeathed by him, before lands which have descended to his heirs.

Hr. Blauding and Mr'. Heath for the appellant|'.

Mr. Hooker, for the respondents.

The question then is, whether the specific legacies, or the lands shall he first liable to the payment of the testator’s debts.

It is clear from all the authorities on the subject, that although the personal estate generally, is liable in the first instance- to the payment of debts, yet that a testator may, if he pleases, protect therefrom, any part of such estate, as against his heirs, or other representatives, either by specifically bequeathing the same, or by plainly manifesting his intention, that his lands shall be charged with such-payment. 1 P. Wms. 203, 678, 729. 1 Bro. C. C. 462.

In this case it appears that the legacies are not only specifically given, but that the testator has fully expressed his intention to charge his real estate with the payment of his debts. It is true that the will cannot operate as a disposition of his lauds, because it was not exe* euted conformably to the act, and this charge on ths lands may therefore be said to be void ; but this charge nevertheless amounts to a plain declaration of the testator, that the legacies given shall be exempt from the payment of his debts, and the will as to the legacies is valid and operative. It follows then, that the lands of the testator, which have descend-ed to his heii’s, must first be applied to the payment of bis debts, before the specific legacies can be broken in upon. The decree therefore'otg this point must be reversed.

*W.*James,

W. Thompson,

Henry W. Desaussue@5

Theodore Gaiuuard,

Thomas Waties.