Hence result the right and duty of the court, in the due exercise of its jurisdiction, so to marshal the assets, that as little interruption be given to the interests of the claimants under the will, and of the heirs, as may consist with the more perfect rights of creditors. This can be done only by a designation in the license of the estate, which the executor may sell for the payment of debts. And when the testator, or the law, has appropriated an adequate fund for the payment of the debts, it would be unreasonable for the court to permit that fund to lie by, and to license an executor to sell a specific devise, and thus drive the specific devisee to his action at law, for relief out of the appropriate fund.

In what manner the assets are in this case to be marshalled, is the next question. And in our opinion, the rule established in equity, in cases where all the debts are due by specialty, is applicable in this case, except as it relates to the rents and profits of the descended estate, received after the testator's death, which we cannot come at. For in those cases, the whole estate, personal and real, as well the devised as the descended lands, are assets for the payment of all the debts. So here the whole estate of Jackson, the testator, including the descended real estate, is assets for the payment of all his debts, in the hands of his executors. And in both cases the charge on the estate is by operation of law.

In this will there is no specific bequest of any chattel, and no exemp tion of any part of the personal estate from the payment of debts. Therefore the whole of the personal estate, after the payment of the expenses of the last sickness, funeral charges, and of the debts due to the Government (if any), is first to be applied to discharge the debts. It is also very clear, that the devise of lands to Susanna Gray is a specific devise, not liable, by the terms of it, to any deduction. The descended estate must then be applied to the payment of the debts, before the specific devise can be resorted to. And the same rule must apply to the lands which Mrs. Swan can claim as residuary legatee, if the devise of those lands can be considered as specific within the intention of the rule.

Jackson first provides that his debts and funeral charges be paid. He next bequeaths legacies to his nephews and nieces, and makes a specific devise to his sister, Susanna Gray. Then he gives to Mrs. Swan, in fee, all the remaining part of his estate, real and personal; the just construction of which is, "when my debts and funeral charges, and the legacies, are paid, and the specific devise to my sister is deducted, then what remains, whether real or personal, I devise in fee to Mrs. Swan." If nothing should remain, then nothing is devised to her.

We cannot therefore consider this devise of the remainder as specific. It is rather creating a fund for the payment of the debts and legacies, with a devise of what remains, if any, to the residuary devisee. If, after the personal estate was exhausted by the debts, the unsatisfied

creditors should levy their executions on all the devised lands, excepting those specifically devised to Mrs. Gray, Mrs. Swan could not compel contribution by Mrs. Gray and the heirs, under the Statute, because a general residuary legatee cannot have contribution, if nothing remains. For in that case nothing is given to him, but on a contingency that some estate may remain; and if no estate shall remain, then nothing devised to him is taken from him, to satisfy a creditor of the testator. The debts and legacies, being first to be paid, are to be considered as a deduction from the property contemplated to be given; and if, after the deduction, there is no remainder, the contemplated bounty has wholly failed, there being, in fact, no object on which it could operate.

Thus, when the testator, after mortgaging lands, devised them, with a clause, that the devisee pay off the mortgage, he can resort to no other part of the estate for relief; but the money secured is considered as a deduction from the property devised. But the case of King v. King et Al., 3 P. Wms. 358, is in point. There the testator, being seised of freehold lands, and of a copyhold, which last he had mortgaged, devised the copyhold to his nephew; and after all his debts were paid, he devised the rest of his estate, real and personal, to his son, who was his heir. And it was holden that the import of this devise was, that until all the debts were paid, nothing was devised to the son; or that when the debts should be paid, then, and then only, he should be entitled to the residue. We cannot, therefore, consider this residuary devise to Mrs. Swan as specific, within the rule of marshalling assets, so that the descended lands shall first be sold.

It has been argued by the counsel for the petitioners, admitting the rule to be generally correct, yet that in this case it ought not to apply, because in the residuary devise the testator gives, not only all his real and personal estate, of which he was then seised and possessed, but all of which he might afterwards die seised; and, therefore, that he contemplated after-acquired estate, which, although it could not pass by his will, yet was evidently intended to pass; and that this intent ought to be so far executed as to cause it to be sold for the payment of debts, before the residuary devise should be applied for that purpose.

This argument, however ingenious, is not solid. For the testator cannot, in his will, charge with the payment of his debts after-purchased lands, any more than he can devise them. And if in this case he intended it, the intent was void. And an intent against law cannot affect this rule or principle of law. Otherwise the rights of the heirs would be implicated by a testamentary disposition, made before the lands were acquired by the testator. If this case should be allowed as an exception, it would involve most residuary devises; for it is common for the scrivener to include expressly all the residue of the estate, of which the testator may die seised or possessed. We think, therefore, that the rule should be applied in this case, without admitting the exception.

:

The order of the court was entered as follows: Ordered that the said executors be, and they hereby are empowered and licensed to raise the sum of by sale at public auction of the houses, lands, or tenements, of which the said Henry Jackson died seised in fee, being devised by him by his last will and testament; excepting such part thereof as is therein devised in trust for his sister, Susanna Gray, and such as may have been held by said Jackson to the use of, or in trust for, any other person or persons; the said sum, when raised, to be applied to the payment of the debts aforesaid, with the incidental charges of sale; and if the said sum cannot be raised by such sale, it is further ordered, that the said executors may raise by sale at public auction of so much of the real estate of which the said Jackson died seised, not having devised the same in and by his last will and testament, such further sum of money, as with the money raised by the sale first above ordered, will amount, in the whole, to the said sum of to be applied as aforesaid, giving bond, &c.

Otis and Sullivan, for the petitioners.
Prescott and Jackson, for the respondents.1

1 "It seems by the English authorities, that residuary devises have been regarded as specific, on the ground that a testator could dispose only of the lands owned by him when his will was made, and therefore that a residuary devise was a gift of such lands only; and that the lands devised were subject to the rule of marshalling assets, which leaves specific devises untouched, if the general legacies and devises are sufficient, with the other property, to pay the testator's debts. 2 Jarman on Wills, 547. It may well be doubted whether this rule of the English law was ever adopted in this Commonwealth. For though Parsons, C. J., seems to have recognized it, incidentally, in Wyman v. Brigden, 4 Mass. 151, cited by the plaintiff's counsel, yet in the subsequent case of Hays v. Jackson, 6 Mass. 149, he held that a residuary devise, like that which was made to the present plaintiff, could not be considered as specific, within the rule of marshalling assets. And the court, upon a petition for license to sell real estate for the payment of a testator's debts, ordered the estate, given to the residuary devisee, to be sold, before selling that which was specifically devised.

"But we are of opinion, that since the Rev. Sts. c. 62, § 3 ["Any estate, right or interest in lands, acquired by the testator, after the making of his will, shall pass thereby in like manner, as if possessed at the time of making the will, if such shall clearly and manifestly appear by the will, to have been the intention of the testator "], have enabled testators to devise lands acquired after the making of their wills, by clearly manifesting, by their wills, their intention so to do, the English rule above mentioned, if it ever was in force here, can exist no longer.". - Per METCALF, J., in Blancy v. Blaney, 1 Cush. 107, 116 (1848).

NOTE. - On the exoneration, in general, of the personalty by the realty, see Inchiquin v. French, 1 Cox, 1 (1745): Watson v. Brickwood, 9 Ves. 447 (1804); Bootle v. Blundell, 1 Mer. 193 (1815); Kilford v. Blaney, 29 Ch. D. 145 (1885); Lee, Appellant, 18 Pick. 285 (1836).

On the apportionment of the charge of a debt or legacy when laid on a mixed fund of realty and personalty, see Stocker v. Harbin, 3 Beav. 479 (1841); Elliott v. Dearsley, 16 Ch. Div. 322 (1880).

On applying to the payment of debts land devised to the heir, see Biederman v. Seymour, 3 Beav. 368; p. 27 ante.

ONE seised of a real estate in fee, which he had mortgaged for £500, and possessed of a leasehold, devised the former to his eldest son in fee, and gave the latter to his wife, and died, leaving debts which would exhaust all his personal estate, except the leasehold given to his wife.

The question was, whether there being (as usual) a covenant to pay the mortgage moneys, the leasehold premises devised to the wife should be liable to discharge the mortgage?

Obj. The personal estate is the natural fund for debts, and according to the decree made by his Honor in Sir Peter Svame's Case, where the father the mortgagor dying intestate, and leaving a mortgage upon his real estate made by himself, the personal estate was applied to pay off the mortgage, whereby the younger children were left destitute: so by the same reason, in this case, the leasehold, though specifically devised to the wife, yet being personal estate, must be liable to pay the debt due by the mortgage; especially in favor of the heir, who otherwise would be very slenderly provided for, and in a worse condition than his younger brothers.

But the MASTER OF THE ROLLS [SIR JOSEPH JEKYLL], after taking time to consider of it, and being attended with precedents, decreed that as the testator had charged his real estate by this mortgage, and on the other hand specifically bequeathed the leasehold to his wife, the heir should not disappoint her legacy by laying the mortgage debt upon it, as he might have done, had it not been specifically devised; and though the mortgaged premises was also specifically given to the heir, yet he to whom they were thus devised, must take them cum onere, as probably they were intended. That by such construction each devise would take effect, (viz.) the leasehold estate go to the devisee thereof, and the heir enjoy the freehold, though subject to the burden with which the testator in his lifetime had charged it; and this resolution did not in the least interfere with that of Clifton and Burt, 1 P. Wms. 678, because in the latter there was no mortgage.1

1 See Halliwell v. Tanner, 1 Russ. & Myl. 633 (1830).

SERLE v. ST. ELOY.

CHANCERY. 1726.

[Reported 2 P. Wms. 386.]

ONE seised in fee of lands near Godalmin in Surrey, that were in mortgage, and likewise seised in fee of other lands, devised his lands in Godalmin to his cousin and god-daughter Jane Styles at her age of twenty-one, subject to the encumbrances that were thereupon, and ordered that the rents and profits of the premises should, during the infancy of his said god-daughter, be paid to her father for her sole use, and devised other lands to trustees, in trust to pay the testator's debts.

Obj. The lands in Godalmin are devised subject to the encumbrances thereupon, for which reason the devisee must take them cum onere, and be contented to pay off the mortgage.

MASTER OF THE ROLLS [SIR JOSEPH JEKYLL] contra. The devise of the estate subject to the encumbrance is no more than what is implied, for the testator could not do it otherwise; but when the testator devises other lands to pay his debts, this must be intended all his debts, and consequently the debt by mortgage of Godalmin is part of those debts which are to be paid off out of the money arising by sale of the trust-estate; and this is the stronger, by the testator's having appointed the rents and profits during the infancy of his god-daughter to be paid to the infant's father for the sole use of the infant, which is as much as to say, that they shall not go or be applied in discharge of the mortgage.

And though the infant by her own bill had submitted to pay off this mortgage, yet his Honor said, he must take care of the infant, and not to suffer her to be caught by any mistake of her agent.

Wherefore paying the costs of the day, let the infant amend her bill.1

1 See Hale v. Cox, 3 Bro. C. C. 322 (1791); Waring v. Ward, 5 Ves. 670 (1800); 2 Jarm. Wills (4th ed.) 634, 635.

A devisee of land which the testator has mortgaged is entitled to exoneration out of land descended to the heir. Galton v. Hancock, 2 Atk. 424 (1742). Wride v. Clark, 2 Bro. C. C. 261 n. (1766).