no assets of the estate of the said John Hoover, deceased, in his hands, which he could apply to the payment of the legacy of Michael Hoover, nor is there any annual payment due and payable out of the land so as aforesaid devised to him, which he can legally and safely apply to the payment of the said legacy or any part thereof." This averment proceeds upon the notion that, although the aggregate sum charged on the land, and which, as we have seen, has become the personal debt of the devisee, is directed to be paid in ascertained legacies and by way of residuary bequest to the other children of the testator, yet that is subject to be first appropriated in payment of the debts due from his estate, leaving only any balance that may remain,. applicable in satisfaction of the legacies, pro rata. This view seems to have been adopted by the orphans' court, and to have led it to the support of the defendant's answer by a dismissal of the plaintiff's bill with costs. But in this, we are of opinion the court was clearly wrong. Viewed as a personal liability attaching upon the devisee, there can be no pretence whatever to say the plaintiff's legacy is liable to be defeated by the fact that the testator died indebted in a larger amount than his personal estate was sufficient to discharge. This legacy is made directly payable by the devisee to the legatee, without the intervention of the executor, who alone, has to do with the payment of his testator's debts. That the devisee was also executor can make no difference, for the land devised did not pass to him in that character, but as devisee, and his acceptance of it immediately raised a promise to pay the sums charged upon it, irrespective of the testator's debts. It may be true the latter acted upon a mistake as to the amount of these debts, and that a consequence will be a diminution of the benefit intended to be conferred by him on his devisee; still this acceptance by the latter of the thing devised, subject to the burden expressly imposed on it, closes his mouth from averring, as a defence to the plaintiff's claim, that there are no assets of the estate of the deceased in his hands applicable to the payment of the legacy. The right of the legatees to claim payment at the hands of the devisee does not rest upon assets, as such, in his possession, but upon his liability as devisee, holding under the same will that gives birth to their interests.

But if we put out of view the personal responsibilities of the

devisee, and treat this as a case in which a chancellor would marshal assets as between creditors, devisees, and legatees, it will be found the defence set up here is equally unavailing. In this aspect, the legacies must be regarded as demonstrative, and, in some sort, partaking of the nature of specific legacies, as charged upon a particular fund specially appropriated to their payment. Ward, Leg. 21. This fund is the devised land which, it is not denied, is sufficient for the payment of the balance of the testator's debts, and the legacies bequeathed. The established order of the application of the several funds liable to the payment of debts is definitively settled by adjudged cases, and is thus generally stated by text writers upon this subject. 1. The general personal estate not expressly, or by implication, exempted. 2. Lands expressly devised to pay debts. 3. Estates descended to the heir. 4. Devised lands, charged with the payment of debts generally, whether devised in terms general or specific (every devise of land being in its nature specific). 5. General pecuniary legacies, pro rata. 6. Specific legacies, pro rata. 7. Real estate devised, whether in terms general or specific. 2. Pow. Dev. 667, 668, and cases there cited. In this instance the first and third class of assets have been exhausted, without fully satisfying the debts; and this testator did not expressly devise any lands for their payment. Nor did he charge any of his lands with the payment of his debts generally, so far as we are enabled to ascertain from the paper-book, which, however, does not set out the whole of his will. But with us, all the lands of a decedent, whether descended or devised, are, by law, charged with the payment of his debts, and, as is intimated in Manning v. Spooner, 3 Ves. 118, and expressly said by Mr. Justice Rogers, in Walker's Estate, 3 Rawle, 241, a case also turning upon the mode of marshalling assets in payment of debts; every testator is presumed to know the law of the country in which he lives, and to make his will in reference to it; and he adds, that though a clause in wills, charging the testator's estate with the payment of his debts, is usual, it is by no means necessary, for the estate is equally bound without such direction, and in the order indicated. Accordingly, in that case, personal property bequeathed to the widow of the testator was decreed to be subject to the payment of debts, before descended real estate could be called on. It does

not, however, follow from this, that when no other fund than the personal estate is provided for the payment of legacies, and this is swept away by the creditors of the testator, the legatees are entitled to call upon the lands devised to replace the amount abstracted from the personalty, for this would be in contravention of the order of application I have already stated. The right to do so seems to depend upon an expression of intention by the testator to charge the devised lands with his debts, in which case the assets will be marshalled in favor of pecuniary and specific legatees; lands so charged being applicable before pecuniary or specific legacies. But the case is very different where the burden of paying the legacies is specifically imposed on the devised land. The devisee then takes it so subject, and, in Pennsylvania, on failure of the prior funds, also onerated with the debts. The testator says he shall pay the legacies, and the law says he shall pay the debts. It is, in this respect, like a devise of mortgaged lands, charged by the testator with the payment of a sum certain, partly applicable to the discharge of legacies given to other children of the testator. When construing such a devise, C. J. McKean, as the organ of the court, observed: "It appears to have been the intention of the testator that the legacies, specific and pecuniary, should be paid, as well as that the devise of the real estate should take effect; and, if practicable, the assets should be so marshalled that the testator's intention in the whole should be carried into execution;" and it was, accordingly, decided that the specific and pecuniary legacies bequeathed to the children, ought not to be brought in ease of the particular lands mortgaged, for the devisee of the real estate must take it cum onere, that is, subject to the mortgage, unless the residue of the personal estate be sufficient to discharge it. In this case, too, it was apparent the testator had miscalculated the amount of his debts, a circumstance which is never allowed to defeat legatees, where a sufficient fund still remains. Ruston's Ex'rs v. Ruston, 2 Dall. 243. A similar principle was announced in the case of Davies v. Topp, 1 Brown, Ch. 455, in note, where one seised in fee of considerable real estate, subject to a mortgage, by his will gave to his sister an annuity, during her life, to be paid by the person who should be seised of his real estate, under his will and also several pecuniary legacies, the payment of which,

together with his debts, he charged upon all his real and personal estate, which he devised, subject thereto, to his nephew in tail male; and to the same nephew he gave all the rest of his personal estate, subject to his debts, legacies, and funeral expenses, and appointed him executor of the will. Upon a bill brought for an account and application of the personal estate, not specifically bequeathed, in payment of debts and legacies, and in case the personal estate should not be sufficient, to have the deficiency raised by a sale or mortgage of a competent part of the real estate, the master of the rolls decreed, and this decree was afterwards affirmed by Lord Thurlow on appeal, that the personal estate not specifically bequeathed should be first applied in payment of debts, funeral expenses, and legacies, but in case the personal estate should be insufficient for the payment of debts, the balance due the mortgagee and other specialty creditors to be raised by mortgage or sale of certain freehold estates, acquired of the testator after making his will, and which had descended to his heirs at law; and in case these funds should not be sufficient for the payment of debts and legacies, the deficiency to be made good out of the real estate devised by the will, charged with the payment of the testator's debts and legacies. In these, and similar instances, a demonstrative legacy is not suffered to fail while the fund charged with its payment holds good for the purpose. After debts, these have the primary claim upon the fund, and where that fund is land devised, the devisee is, if necessary, to be postponed. But here the devisee claims to apply the legacies in case of the land upon which they are charged, which, as we have seen, cannot be done. It follows that, under the facts disclosed, the orphans' court erred in dismissing the bill of Michael Hoover, the legatee, and its decree must, therefore, be reversed.

Decree reversed, and it is ordered that the record be remitted to the orphans' court, with directions to proceed.

HAYS ET AL. v. JACKSON ET AL.

6 Mass. 149. 1809.

The petitioners alleged, and proved by the requisite documents from the probate office, that the personal estate of the testator was insufficient, by the sum of 66,000 dollars, for the payment of his just debts and legacies, and thereupon prayed that they might be licensed to convey so much of the real estate, of which he died seized, as should be sufficient to pay those debts and legacies, with the charges of sale.

Upon notice ordered, the heirs at law appeared, and sundry questions arose, all of which are discussed in the following opinion of the court.

PARSONS, C. J. Henry Jackson made his last will on the 13th of January, 1805, in which he makes the following disposition of his estate.

First. After all his just debts and funeral charges are paid, he gives to such of his nephews and nieces as may survive him, fifty dollars each. Also, he gives to his sister Susanna Gray in fee, certain specifick real estate, on condition that she does not demand against his estate her portion of her father's estate remaining in his hands; and his executors are to hold the real estate, thus devised her, upon the same trusts as he held her said portion.

Also, he gives to Mrs. Hepzibah C. Swan in fee, all the remaining part of his estate, real and personal, of which he might die seized, or which might afterwards descend to him by gift, grant, as heir at law, or otherwise, to be held in trust by his executors, for her sole use and disposal.

And he appoints Judah Hays and Elisha Sigourney his executors.

Mrs. Swan, the residuary legatee, and also the heirs at law are before us.

The testator was seized of other real estate, than that specifically devised to Mrs. Gray, when he made his will; and he afterwards acquired other real estate, which on his death, without a republication of his will, descended to his heirs.

It appears that the personal estate, left by the deceased, is