CASE 23 — PETITION EQUITY

JULY 2.

#### Broadwell, &c. vs. Broadwell’s Adm’r.

APPEAL FRO3f THE HARRISON CIRCUIT COURT.

1. A testator, in 1848, devised to his wife all his estate, real, personal and mixed; in 1853 and 1854 he acquired real estate, and died in 1861. The will gave no direction about the payment of debts. The widow became administratrix, and soughfcto have the after acquired real estate, which descended to the heirs at law, appropriated to the payment of the testator's debts, and exonerate the personal estate and slaves, which were ample to pay them. Seld, That the real estate could not be thus subjected, in the absence of a clear intention, either express or implied, of the testator to exonerate the personal estate and slaves. (3 Rawle, Penn. Pep., 236; 6 *Mass.,*150.)

2. The laws in existenoe at the time the Revised Statutes went into effect govern wills previously made. *i*

3. The bequest of a particular thing or money, specified and distinguished from all others of the same hind, is a regular specific legacy.

4. The debts of a testator are to be paid, first out of the perishable goods, not spooifioaHy bequeathed, next out of the slaves, and if these be insufficient, then out of the real estate, where the will makes no provision for their payment.

J. S. Boyd, for appellants,

cited 3 *Mon.,*285-6; 6 *Mass.,*149; 3 *Rawle,*229; *Livingston vs. Livingston,*3 *Johnson's Ch'y. Rep.; Livingston vs. Newkirk, lb.*

W. W. Trimble, for appellee,

cited 3 *Mon.,*285; 3 *Johnson's Ch'y. Rep.,*320.

*291JUDGE WILLIAMS

delivered the opinion op the court:

Sterlin E. Broadwell made the following will in 1848:

> “Lexington, December 30th, 1848.

> The breaking out of the cholera is hourly anticipated in our city, and, not knowing who may be the first victims to the fatal disease, I prepare this, my last will and testament, for the benefit of my dear wife, Drusilla C. Broadwell. I do give and bequeath to my dear wife, Drusilla C. • Broadwell, all of my estate, in fee simple, to do as she pleases with, both real, personal and mixed. S. E. BROADWELL.”

The testator afterwards acquired real estate, in the years 1853 and 1854, and, without a republication of his will, died in 1861.

Mrs. Broadwell became administratrix, with the ‘will annexed. She filed this petition, to have the after acquired real estate, which had descended to the heirs at law, appropriated to the payment of testator’s debts, and, to the extent of its value, exonerate the personal estate and slaves of the testator from this liability.

The heirs at law contested the right of the administratrix, who was also the sole legatee, to thus exonerate the personal, estate and slaves.

The circuit court, on the hearing, adjudged that the after acquired real estafe, thus descended to the heirs, be sold, and the proceeds applied to the payment of the debts, and to the exoneration of the estate bequeathed. To reverse which the heirs prosecutes this appeal.

The Revised Statutes provides that the laws in existence at the time they go into effect shall govern wills, previously made. So these have no application to this case.

“A regular specific legacy may be defined, the bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a horse, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor.” (1 Roper, 149.)

This is a general bequest and devise of all the testator’s es-, tate of every kind, and not a specific bequest.

*292The laws of the land required his debts to be paid, first out of the perishable goods not specifically bequeathed, next out of the slaves, and, if these be insufficient, then out of the real estate.

As the testator made no provision for the payment of his debts, it must be. presumed that he intended they should be paid in manner as provided by law.

Before the personal estate can be exonerated from this charge, even as between the legatee and heir, a clear intention, either express or implied, to exonerate it, must be manifested by the testator.

For a very elaborate discussion of this doctrine, reference is made to the cases of *Walker's Estate,*(3 *Rawle, Penn. Rep.*236;) *Hays et al Exr's. vs. Jackson et al,*(6 *Mass.,*150.)

Nothing herein conflicts with the case of *Trumbo vs. Lorency,*(3 *Mon.,*285,) or *Livingston vs. Newkirk,*(3 *John. Chan. Rep.,*320.)

As the personal estate, including the slaves, was more than ample to pay off all the testator’s debts, the court erred in subjecting the real estate descended to the heirs.

Wherefore, the judgment is reversed, and the cause remanded with directions to dismiss the plaintiff’s petition.