[Present; Chancellors Ruti/edke and James.]

Oct. 1807.

#### Thomas Cochran, jun. Devisee and Legatee of T. Cochran, sen. *vs.*Susannah Cochran, Executrix of Thomas Cochran, sen. deceased.

A testatrix paying a legacy before the time fixed by the will, and being- obliged to pay out of the assets of the estate, a note of the lega* *522tee, on which her testator had been, endorser, shall be obliged to repay the legacy, with interestto the estate.

testator providing by will for his wife, and desiring her to give a home and subsistence to her daughter by her former marriage, (to 'y^om testator als'ogave a legacy,) the widow and executrix is not at liberty to charge the estate of testator with such subsistence.

The widow to whbm the dwelling house is devised for life, is bound to pay one third of the taxes, and the estate is chargeable with the other two thirds.

THOMAS COCHRAN, the elder, made and execute ed hjs last will and testament, and départed this life, leaving the same in full force. He bequeathed *inter*alia, a legacy of 150/. .to bis stepson Robert Hawie, to be paid after all the testator’s debts were paid;'

He also bequeathed a' pecuniary legacy to his stepdaughter Miss S. Hawie, and then expressed a wish and desire that his wife, (who was the mother of Miss Hawie, by her first husband) would afford her daughter Sarah a decent home and subsistence with her, until certain events might occur. The testator provided amply for his wife by his will,- and among other things, devised his dwelling house to her during her life, and léft her executrix. After his death, she proved the will, qualified thereon, and possessed herself of the estate of the testátqr.

The complainant being entitled to certain estates and legacies under the will, filed the bill for an account.

It appeared on the examination of the accounts, that'the widow and executrix had paid the legacy of 150/. to her son Robert-Hawie, before the testator’s debts were paid: and she had been compelled to pay out of the funds of the estate, certain notes- of the said Robert Hawie, to one *oí*the banks on which the testator had been endorser, and which said Hawie was not able to pay. It was contended that she was liable to repay that legacy, with interest, as prematurely and improperly paid by her.

The testatrix had also charged the estate a certain sum for the board of her daughter Miss Hawie, under that clause in the will desiring the widow .to afford her daughter Sarah ahorne and subsistence. This charge was con*523tested, and it was insisted the executrix being provided for by the testat.or, bis desire to give her a home and subsistence was to be complied with out of that provision, and not out of testator’s estate generally.

The widow also charged the taxes on the house devised to her for life, to the estate. It was contended that she as tenant for life, was bound to pay some portion of the taxes, as well as the repairs.

Chancellor Rutledge

delivered the decree of the court.

The legacy to R. Hawie of 150/. not being payable till after all the debts due by the testator were satisfied, the same was improperly paid by the defendant: It is *there?*fore ordered and decreed, that she do account for that sum, with interest from the time it was so paid *;*more es-? pecially as she *has beep*compelled to *pay*out of the funds of the estate the notes of the said R. Hawie, due to the National Bank, which her testator had endorsed. Although the testator may have intended that Miss S. Ha-wie should be maintained out of his estate, yet there are no words in the will sufficiently indicative of such intention to authorize the court to sanction such charge, the testator having only expressed his wish and desire (at the end of the clause in which he has given Miss Hawie a legacy,) that his widow would afford her daughter Sarah a decent and comfortable home and subsistence with her, until certain events occurred. The charge therefore for board, &c. ought not to be allowed.

Decreed that one third of the taxes and repairs of the house defendant occupies, be paid by her, and the other tyfo thirds out of the estate.