#### H. D. Duncan, Executor of Tobin, v. Daniel Tobin, et. al.

Where all the legatees appear to have been equally the objects of the testator’s bounty, the legacy of one shall not abate the favor of that of another; but the rule is that residuary legacies shall abate in favor of prior bequests, and general legacies in favor of specific.

As between the legatees of the *corpus*and of the income, they must contribute to the payment of the debts according to their respective interests, upon the same principle* as tenant for life and remainder-man, unless a contrary intention is manifest in the will itself.

The body of the estate is the fund primarily liable to the payment of debts, where the testator has not appropriated any particular fund for that purpose, and has disposed of both the *corpus*and the income.

Where the will directed the debts to he paid as soon as practicable, and that tire property should be kept together until a given period, and then sold, but allowing the executor to sell sooner if such sale would be most for the advantage of the estate; and that the income until such period arrived should be paid to certain legatees, and then that the proceeds of the sale should be given to others — it was held that the legatees of the income and *corpus*were alike favored as classes by the will of the testator, and should contribute to the payment of debts according to their respective interests.

*Before his Honor Chancellor JOHNSTON, at Barnwell, January*1838.

His Honor pronounced the following decree:

This case is now before the Court, on an application of the commissioner for directions.

On the argument of the questions submitted, it has been agreed to withdraw those which relate to the mode of charging the executor; and leave the report, (when it shall be made up,) to be excepted to *by*the parties; so as to bring up the questions, not in general terms, but in the form of specific objections.

The only question left for me to consider, is, *what funds*are (as between the legatees) liable for the payment of debts, and in what proportions!

The question is not raised by creditors; and they are in no wise concerned in it. As to them, the whole, and every part of the estate, is liable; and if they have taken satisfaction out of an inappropriate fund, still, as among the legatees, the irregularity must be cured, by directing remuneration to be made to the lega*162tees injured by it, *by the*legatee who should have been charged with-the debts.

The same remark is applicable to the executor; if he has in good faith, paid out of the wrong fund, the legatee, prejudiced thereby, must be recompensed for his loss, out of the legacies which should have been charged, and employed by the executor.

The question is one entirely between the legatees. In forming a judgment upon it, the clearer method will be to reject from the consideration all the events which have taken place since the estate first came into the hands of the executor; and taking his position at that time, and contemplating the condition of the estate, and the provisions of the will, enquire how, and out of what funds, shall the debts be paid.

When there are no specific directions in the will, the rule, I suppose, is, that the least favored of the legatees shall abate, rather than those most favored. For instance, residuary legacies shall abate in favor of prior bequests; and general legacies in favor of specific. If all are equally the object of the testator’s bounty, all shall bear the burden of his debts *pro rata.*

All for whom the testator intended a bounty, ought, if possible, to have it; and such construction should be given to the will as not to deprive them of it, but to give it to them, substantially; unless this cannot be done without taking from others what the will shews the testator intended they should have, even if that should occasion these to lose what is given to them.

In this will, the direction is, that, from the testator’s death until 1838, the income of the estate should bo given to certain legatees, and that in that year, the body of the estate be sold, and the proceeds, together with any property unbequeathed, divided among persons named by the testator.

There is no residuary legacy here, unless there was property not specifically bequeathed; and it is understood there *‘*was no such property.

If there had been, that, so far as it would extend, should, in the absence of any express direction, be first liable for debts.

I apprehend it would be in vain to look to this will for any in*163dex of greater favor, in the mind of the testator towards those to whom he gave the proceeds of his property, than towards those to whom he gave the income of it. The legacies to each class, as a class, are general. To one class is given all the income, whatever it may he; to the other, the proceeds of sales, whatever they may he. The legacies are, therefore, of the same rank. They are general pecuniary legacies, dependent for their amount upon that out of which the money is to be raised. I speak of them as classes. Among the legacies of income, there are some for specific sums, which must, as among themselves, be preferred to the rest, to ■whom only the balance of income is given. But comparing the legacies of income as a class, with those to whom the proceeds of the body of the estate are given, they rank alike. If there is any mark of preference of one class over the other, it would rather seem to be in favor of the legacies of income, since the testator seems to have postponed the distribution of the *corpus,*with the sole intent of raising income in the meantime, for the benefit of those to whom he gave it. This appears very much like a declaration to the legatees of the *corpus,*that they should not have it until others should be *first*allowed bounties bequeathed to them. But I suppose the legatees of both classes must, as classes, be regarded as equally favored, their legacies being of equal rank; that is, each equally entitled to have-, substantially, the bounty intended for it.

When this case was before the Court of Appeals, on a former occasion, the construction given to the will was, that the executor was so to conduct the estate, as not to advance one of these classes at the expense of the other. The principle of the decision was, that all were equally entitled to what was given them, and that neither class was *to be*defeated *by the act*of the executor, in selling before 1838. The same principle must, I think, lead to the •same decision in respect to the payment of debts.

The debts were due at the death of the testator, and were then payable; although the law allowed a certain time for the executor to ascertain their amount and grade, and to marshal and arrange the property to meet them. As the testator has not charged them on any specific fund, and as there was no undisposed of property *164to pay them, the consequence seems to be, that they should have been paid out of the body of the property, as it stood at the testator’s death; with this exception, that as the testator is understood to have died after the first of March, the growing crop must, under the act, be first applied.

With this exception, the body of the estate was the primary fund. The first duty of the executor, before proceeding to execute the other duties pointed out in the will, was to pay the debts. Until this was done, the estate which he was to subject to the other provisions of the will, could not be ascertained. Substantially, so much of the property as was necessary to satisfy the creditors, was not the testator’s estate. That estate, in justice, was only the balance of property left after paying oif all the claims on the testator. If, therefore, the executor had taken the natural course, he would have ascertained the amount of debts, (principal and interest,) as they stood at the testator’s death; and after applying the growing crop, have paid the balance by sale of property. He would have then proceeded to plant with the residue of the property, applying its income, as directed, until 1838, at which time he would have sold and distributed the *corpus,*according to the directions of the will.

He could not delay the payment of the debts for the purpose of making income, to make payment out of that. This would have amounted to what, in the former decision in this case, the Court has said he should not do; preferring one set of legatees over another.

It is presumable, however, that all the debts were not paid at the end of the year. But at whatever time the *payments were*made, the accounts should be so stated as to have the same effect as if they had been made within the yeai\ If any were paid after-wards, the amount due on them at the testator’s death should be deducted from the capital of the estate; and the interest which accrued after the testator’s death, should be deducted from the income of the estate; the balance of the capital should be distributed to the legatees of capital, and the balance of income should be distributed to the legatees of income, according to their grade, among themselves; the specific annuitants first, the general annuitants last.

*165The true construction of the will, and that which exhibits the relative favor of the testator to his different legatees, seems to be this : that after ascertaining what his estate, really was, by payment of debts, he wished the body of that estate to be enjoyed by certain individuals, but that it should not pass into their hands until a specific time ; designing that the income of that which he gave them, should in the meantime be enjoyed by others. The capital which he gave to one class at the period fixed by him, that same capital should, in the meantime, bear interest for others. The benefits were given in the ratio of interest to capital. If diminished by debts, *the*diminution to the parties respectively should be in the same ratio. If there had been no debts, his legacies themselves bear evidence, that his bounties should bear their proportion of principal to interest. That principle should be preserved. The debts should not be allowed to disturb it; but should be paid so as to leave it in full operation as to the balance left.

The rule which applies, where property is given to one for life, with remainder over, is founded on the same principle.

The debts^of the donor are charged on the life tenant, and re-mainderman, in proportion to their respective interests in the property given. Such portion of it, as is necessary, is subjected to the debts, the residue is left subject to the terms of the gift.— Whoever would think, in such cases, of disposing of the income or profits of property, during the life tenancy alone, thus frustrating the interests of the life tenant, and leaving the remainderman the full enjoyment of his 1 So, here, the income, for the time specified, is, as regards those to whom it is given, as if the property had been leased to them for that time.

The cases in which debts are payable out of income alone, have no application. I refer to cases of trustees, where the *cestui que trust*is entitled to both capital and income, such as guardians, &c. The income is the extent of the trustee’s power. He must employ that for the preservation of the *corpus*of the property, which is legally the thing intrusted to him. The interest is but an equitable incident. But here the interest is no incident; it is given to persons different from those entitled to the capital, as a substantial bequest. In the one case, when the interest is employed, it is for *166the preservation of the capital, a thing as valuable to the ward; the gain to him in the one, is equal to the loss in the other. In the other case, to employ the income, is to sacrifice the interests of its own, not for his benefit, but for the benefit of other persons.

It has been supposed that although there is no charge of the debts on the income, in terms, there is enough in the two first clauses of the will to shew an intention they should be so charged.— If the expressions employed by the testator, indicate such an intention, it is as good as if it had been set forth in terms. But I do not see such indication.

The first clause directs : 1st. The debts to be paid as soon as practicable. By itself, this certainly shews no particular intention, except that the debts be paid speedily, not slowly, out of income “as soon as practicable.” The law gives the same directions ; and renders it practicable *“to*pay the debts as soon as a sale for payment of the same can be made.” The testator does not say “as soon as practicable, out of income.”

The second clause directs “that the estate be kept together, and conducted as in my life time.” It is argued, that as the testator was a prudent man, and paid his debts out of his income, those words should be construed into a direction to the executor to imitate him in that particular. But it is evident that the testator had no thought of making his own personal habits the measure of the executor’s duty; but simply to direct, that as his was a planting estate, it should be kept in the same position; as he had kept and conducted it as a planter, so he wished the executor to do. That this was his meaning, is evident by what he allows the executor to do. If he prefer it, he allows him to hire out the negroes, and sell the perishable property; that is, to break up the planting establishment, sell the ploughs, &c. and hire out the slaves. But that he meant that the executor should follow his own habits, and make them the measure of his duties, appears to me *pi-eposterous.*

To pay debts in the same way as he did ! If this was his meaning, it is not half so apparent as another meaning which might be attached to the words. His words are, “ that the estate should be conducted as in his life time.” And if these refer to the testator’s habits as a standard of duty for the executor, the latter is excusa*167ble, if he comes up to the pattern. Now, suppose the testator had been an idle and improvident planter or manager, would that be an excuse for the executor to conduct the estate in the same way On the other hand, if the testator was an uncommonly good and thrifty manager, so that few, if any, could come up to him, must the executor be condemned, it after using ordinary diligence, he failed *%*

A motion was made to reverse the decision of the Chancellor as above set forth:

1st. Because, according to *the true construction*of the will, the testator *intended*his debts to be paid out of the *income*or *'profits*of the estate.

2nd. Because, even if the testator had expressed *no intention,*as to the particular fund out of which his debts are to be paid, the *income,*or *profits,*(if adequate,) are the *natural*and *obvious*fund for that purpose.

*Patterson*Bellinger; for appellants.

*Petigru,*contra.

COPY OF THE WILL.

*State of South Carolina.*

I, Cornelius Tobin, of Barnwell, in the State aforesaid, do malte my last will and testament, in manner and form following: hereby revolting all wills and testaments by me heretofore made.

1st. I desire *that my debts be paid as soon as practicable after my death.*

2nd. *If my*executors *shall find it judicious and proper, I would prefer*that my estate be ltept together, and conducted *as in my life time, until January one thousand eight hundred and thirty eight-,*or *if they prefer it,*that the negroes be hired out, the perishable property be sold, &c.

3d. *From the nett annual income of my estate,*I desire that four hundred dollars, if so much be necessary, be applied yearly, and every year, for the support and education of my natural son, Cor*168nelius, the child of Elizabeth Neilson, until eighteen hundred and thirty-eight; and I enjoin it on my executors *as the most solemn request*I can make, that every care and attention be devoted to bis education, both academical and collegiate.

4th. To Orsamus D. Allen, I give and bequeath the sum of one hundred and forty dollars per annum, so long as Elizabeth Neil-son shall live, in trust, fot the sole and separate use, benefit and support of said Elizabeth Neilson, free arid discharged from all debts, contracts or control, of John Neilson, her present husband, and from the contracts or claims of any future husband. The aforesaid sum of one hundred and forty dollars, *to he paid from the nett annual income of my estate, until the year one thousand eight hund/red and*thirty-eight; and should the said Elizabeth Neilson be then alive, I direct *that from the sales of my estate, which I shall hereinafter direct,*that a sum of money, sufficient to raise the aforesaid sum of one hundred and forty dollars *he invested*in bank stock of the government, or in such other public or private securities as my executors may select, *in order to raise and pay the annuity aforesaid,*during the *life of*said Elizabeth Neilson; and *at*her death, I give and devise the fund so invested, to my sister Mary, my half brother Michael, and half sister Caty, (or their children, as the case may be, if they, or either of them, be now dead, or shall die before me,) in the same manner, and upon *the*same terms, and under the same contingencies, as are herein after expressed, concerning one fourth part of my estate, which I shall bequeath to them.

5th. *From the annual nett income of my estafe,*I further give and bequeath the sum of one thousand dollars, *to he paid as soon as possible, on account of her advanced age,*to my aunt Mary Dugee, of the county of Kilkenny, in Ireland, who was, when I last heard from her, the widow of Daniel Dugee of said county. But should my said aunt be now dead, or should she die before me, then I give the aforesaid sum of one thousand dollars, payable in the year one thousand eight hundred and thirty-eight, to he divided between such children, and grand children as she may leave alive at her death; to be so divided among them, that the child or chil*169dren, of any one of her children so dying before her, will take a share equal with one of her children.

6 th. *The balance of the nett annual income of my estate, if any,*I give and devise to my sister Mary, and to my half brother Michael and half sister Caty, to be divided between them, or their children, in the same manner as is provided for the distribution of that fourth part of my estate, which I shall herein after bequeath to them.

7th. *Although I have exfi'essed a wish*that my real and personal estate be kept together *until*1838, it *is not my intention*that such wish be *imperative*on my executors, leaving it to their discretion, to sell *the whole sooner*if they think *it most advantageous, on a long credit,*the payment secured as I shall presently direct. *Tfnot sold sooner,*I direct that my whole estate, real and personal, be sold in the month of January, one thousand eight hundred and thirty-eight, on a credit, payable in instalments of at least one, two and three years, the purchase money to be secured by bond and mortgage, with personal security.

8th. *The proceeds of the sales of my estate,*and all the residue of which I have not made a devise or bequest, I give and devise as follows, viz: To my son, Daniel Tobin, and to his heirs, *I give one-fourth part thereof.*To my son, John Tobin, and to his heirs, I give another fourth part. *One fourth fart of the same, I direct to be invested in lands, negroes, bank or government stock, or loaned out on good mortgages, and personal security,*at the discretion of my executors. And *that fourth fart*I give to my executors hereinafter named, and to the survivor, or survivors of them, and to their heirs, executors, or administrators, of such survivor, in *trust,*for the use, benefit and support of my natural son, Cornelius Tobin, and his children, during his natural life; and after his death, I give and bequeath the same to such child, or children as he may leave alive at his death, to them and their heirs. But if the said Cornelius shall die leaving no child, children or grand children alive at his death, then I give and bequeath the said fourth part of my estate, consist of what it may, to my sister Mary, half brother Michael, and half sister Caty, to be divided between them, or their children, (upon the contingencies provided for in the next clause) in the *170same manner, and on tlie same conditions, which are therein expressed, concerning the other fourth part of my estate bequeathed to them.

The other remaining fourth part of my estate, I give and bequeath to my sister Mary, (now, or late widow of James Murphy, of the county of Kilkenny, in Ireland,) my half sister Caty, and my half brother Michael, also of Kilkenny, to be divided between them, as follows: That is to say, one half of that fourth, I give to my sister Mary, and the other half of the same fourth, I direct to be equally divided between Caty and Michael. But as it is long since I heard from those friends, and I know not if they, or either of them be alive, in order, therefore, to provide against their death, I do further declare, that if either of them be now dead, or shall die before me, that I give the proportion, or share, to which my brother or sisters may be, or would be entitled to, under this will, if alive at my death, to such child, or children, as he or she may have at his or her death, and to their grand children, in such manner that the child, or children, of my nephews, or nieces, who may die before me, or be now dead, will take the same share its father or mother would have taken if alive at my death.

9th. Having some years ago divided my estate equally with my sons, John and Daniel, reserving to myself only so much as I gave to them severally, I feel justified in the bequests and legacies I have herein given to others. For the same reason, I do declare, that should either, or both of my said sons, directly, or indirectly, *contest or dispute the validity of this*will, on any account whatever, by instituting proceedings in any court of this *State, for the purposes of frustrating or defeating the legacies herein*given; or if they shall, by any act of theirs, or their agents, intermeddle with my estate, by assuming authority, or ownership over the same; or by taking or carrying off any of the negroes or other personal property of the estate, then, and in that case, I do solemnly revoke all bequests herein made to them, or to the one so offending against my wishes; and the proportion so given and revoked, *together with any excess which any court of competent jurisdiction may declare, that my natural son, Cornelius and Elizabeth Neilson, cannot take under this will,*I give and bequeath *to my sisters, Mary*
      *171
      *and Caty, and brother*Michael, to be divided between them, or their children, if they, or either of them be now dead, or shall die before me, in the same manner, and under the same conditions, that I have expressed concerning that fourth given to them by a former part of this my will.

*Lastly.*I nominate and appoint my friends, Darling Peoples, Hansford D. Duncan, and Reuben Thomas, executors of this will, and recommend to them the employment of David Hair, as a fit and proper person, as overseer and manager of my plantation affairs — his continuance must, however, of course, depend on their opinion of his worth and good conduct.

In testimony whereof, I have set my hand and seal, at the end hereof, the 7th of August, in the year of our Lord one thousand eight hundred and twenty-nine; and have also written my name at the bottom of each page of this my will, consisting of one sheet and a half of paper.

C. Tobin, [l. s.]

Signed, sealed, and published by the testator, as his last will, in the presence of us, who, in his presence, at his request, and in the presence of each other, have witnessed the execution thereof.

William Matheny,

Alexander Johnson,

Joseph Neilson.

*State of South Carolina, Barmoell District•*

I, Cornelius Tobin, in consequence of the death of Elizabeth Neilson, do malte, as a codicil to the foregoing will, the following bequest: that is to say, I give to my sister Mary, (mentioned heretofore in my will,) the sum of one thousand dollars, and to my half brother Michael, and my half sister Caty, I give each the sum of five hundred dollars, *to be paid to them severally at the time of the sale or division of my estate, as in my will directed.*And if my sister Mary, oi half sister Caty, or half brother Michael, be now dead, (or shall die before me) leaving children, or grand children, then I direct that the money here given to them severally, be divided among their children or grand children, in the same manner as I *172have directed a division of the fourth part of my estate, given to them, in the event of any one of them being now dead, or dying before me, leaving a child, children, or grand children.

In witness whereof, I do hereunto set my hand and seal, this 24th September, 1830.

Cornelius Tobin, [l. s.]

Sealed and signed by the testator, as a part of his will, in presence of us, who, in his presence, and in the presence of each other, witnessed the execution thereof.

Wilson Sanders,

Miles Riley,

Richard A. Gantt.

Johnson, Ch.

On reviewing the decree of the Circuit Court, we are entirely satisfied with the general course of reasoning of the Chancellor, and the conclusion to which he came; and a general affirmation of the decree thereof, is all that our duty would seem to require. But the zeal with which the counsel have prosecuted the appeal, has induced me to attempt to put the argument in a different form, with a view to meet some of the arguments which have been urged in its support.

The grounds on which the appellants rely, are:

1st. That it is apparent from the will itself that the testator intended his debts should be paid out of the income of the estate.

2nd. That in the absence of such intention, the income is the legitimate and appropriate fund for the payment of debts.

Without intending to enter upon a minute analysis of all the provisions of the will, it may be remarked without the apprehension of contradiction, that the income is not expressly charged with the payment of debts, and that any deduction from the general tenor of the will leading to that conclusion, is utterly inconsistent with the disposition made of that fund. Out of this fund the testator directs that an annuity of $400 shall be reserved for his natural son, Cornelius, and $140 for Elizabeth Neilson. That out of it $.1000 should be paid to certain Irish r-elations, and that “the balance of the net annual income” should be paid to certain other *173relations. These are the primary dispositions of the will, and contain a positive and particular disposition of the whole income; and if they stood alone no one would he disposed to question that those legacies would not be bound to contribute to the payment of debts. But the testator has made a like disposition of the *corpus*of the whole estate, and the question is whether either of the funds are exclusively chargeable with the debts, or are bound to contribute towards them *pro rata.*

*For*the defendant it is insisted in the second position, that the income'is the appropriate fund for the payment of debts, and that therefore the debts ought to- be charged on this fund alone; and it is in general true that if there is no other disposition of it, it ought to be so applied. A prudent man would pay his debts out of his income, instead of breaking in upon his capital, and the same prudence ought to enter into the management of his estate by his executors. But the' testator has the right to appropriate what fund he pleases to that purpose, and all these cases are resolved into that question. Out of what fund did the testator intend that his debts should be paid? If he makes only a partial disposition of his estate, the necessary inference is that he intended that his debts should be charged upon the undevised estate, for otherwise his will would be defeated; so if he gives particular or specific legacies to some, and the residue to others, the residue is charged with the payment of debts because the residue consists of what remains after the payment of the particular or specific legacies and debts, and wherever he has particularly and specifically disposed of his whole estate and no fund is left for the payment of debts, it follows that each legatee must contribute or abate in proportion to his legacy, for the obvious reason that there is no guide to the intention of the testator, unless it be that all should abate; and that is precisely this case; for as before remarked, this will contains as unequivocal a disposition of the income as it does of the *corpus*of the estate. The appeal is therefore dismissed, and the decree of the Circuit Court affirmed.

In anticipation of this result, the pourt has been moved on the part of the appellants to instruct the Commissioner that the debts should be paid out of the annual crops, and the first instalment *174arising from the sales of the estate. This is an original motion which this Court cannot entertain, its jurisdiction being altogether appellate, nor will the Court anticipate that the Commissioner will decide the question unadvisedly.