#### *Robert Ford and Wife vs. Jeremiah R. Gaithur and*others.

Testator directed that his property, both real and personal, remain together under the management of his executors, *until Ms just debts be paid,*disposing of the same thereafter. After the execution *of the will he*purchased land (which descended to his heir) and mortgaged the same to secure the purchase money. *Reid*that, as between the heir and legatee, the property passing under the will was the primary fund for the payment of debts, including the debt for which the after-purchased land was mortgaged.

*Before*Dunkin, Ch. *at Fairfield,*

*July,*1845.

*The Chancellor.*Jeremiah Gaithur’s will bears date 15th Decemberj 1841. The 1st clause is as follows, viz : “Item : It is my will that all my estate, both real and personal, remain together under the management of my executors hereinafter named, *271until my just debts are paid ; and until that time my wife is to have her home where I now reside, and to receive comfortable support and maintenance from my estate.”

By the second clause, the testator devises to his wife, during her natural life, or widowhood, the tract of land on which he resided, and certain negroes and other personalty: all which, on her death or marriage, were devised and bequeathed to his son, the defendant, Jeremiah R. Gaithur ;• to which son he also, by the last clause, devised and bequeathed the residue of his estate, with a provision in the event of his son’s death without leaving issue.

On the seventh of July, 1843, the testator duly executed a codicil to his will, by which, after reciting that he had made his will, leaving all his property, real and personal, to his wife and son, and the special provision made in the event of his son’s death without leaving issue, he, by this codicil, modifies and varies the disposition made of his property, on the happening of that contingency. There are three witnesses to each instrument . — two of them are the same persons.

On the 4th March, 1844, the testator purchased a tract of land from the commissioner in equity, and executed to him a mortgage of the premises, to secure the sum of sixteen hundred and fifty dollars and twenty-five cents. It is admitted that this land passed neither by the will nor codicil.

On the 17th June, 1843, (some three weeks prior to the execution of the codicil,) the testator purchased from the Superintendent of Public Works, a part of the Mountain Island, in the Catawba River.

In the judgment of the court, the codicil is a sufficient republication of the will, and the Mountain Island tract is well devised to the defendant. See *Mooers*vs. *White,*6 J. C. R. 375.

The next inquiry is, whether the real estate descended shall be applied to the payment of the testator’s debts. In *Pell*vs. *Ball,*Sp. Eq. 521, it is said, “If the testator has himself provided any fund, either expressly or by implication, his will is the law of this case and so in *Warley*vs. Warley, Bail. Eq. 409, in prescribing the order of administering assets : “ First, real or personal estate, devised for the payment of debts, or *in any manner directed to be so*applied.”

If the first clause of the testator’s will be regarded as merely an implication of intention to provide a fund for the payment of Jhis debts, it is an inference not to be resisted. Every ultimate disposition of his property is made subordinate to the direction *272that the whole should be kept together under the management of his executors, until his just debts were paid. The only other contemporaneous charge on the fund is the maintenance of his wife, for whom he makes an independent provision, after the object of keeping the property together had been accomplished.

It was suggested, that the land should at least be applied to the extinguishment of the debt for which it stood mortgaged to the commissioner. But this is beside the case. Certainly the commissioner may insist on his lien : but if he foreclose his mortgage, the heir would be entitled to reimbursement, in the same manner as an heir in England who has been compelled to satisfy a mortgage. The specific lien is the security of the creditor, but does not 'affect the principle of administering the assets as between-the other parties;

There seems no foundation for the complainants’demand of an account of the personalty. A testament speaks at the death of the testator, and operates upon whatever personal estate a man dies possessed of, whether acquired before or since the execution of the testament. Williams’ Ex’ors. 6 ; *case of Elcock’s*Will, 4 McC. 39.

It is ordered and decreed, that a writ ot partition issue to divide the land in Chester District, described in the pleadings, between the widow and two children of the testator, each taking one-third thereof, and that the commissioners make their return according to law. Parties to be at liberty to apply for any further or other orders to carry into effect the principles of this decree. Costs to be paid out of the estate of Jeremiah Gaithur, deceased.

The defendants, Jeremiah R. Gaithur, and Robert Bailey, appealed, and now moved this court to reverse or modify the decree, upon the following grounds :

1. Because, it is respectfully submitted, that the will of Jeremiah Gaithur does not charge any particular portion of his estate with the payment of his debts, but merely postpones. the payment of legacies, or the division of his estate, until his debts shall have been paid, leaving the rules of law to govern in regard to what portion of his estate shall be first liable; and real estate descended, being liable to the payment of debts before personal estate bequeathed, the decree ought to have been for the defendants.

2. Because the costs of suit are decreed against the estate of *273Jeremiah Gaithur, which, in effect, is a decree against the defendant, Jeremiah R. Gaithur, personally, who has been in no default whatever; whereas, it is respectfully submitted, that the decree *being*against the complainants, upon every claim made by their bill, except for partition of the descended estate, the complainants ought to pay the costs; otherwise, as a bill for partition, the costs ought to be paid out of the estate to be partitioned.

*McDowell,*for the motion.

Noyce, contra.

*Per Curiam.*

' We concur in the decree of the circuit court. Appeal dismissed.

Johnson, Johnston and Dunkin, GO. concurring,