(4.) The subject of marshalling assets in the administration of the estates of deceased persons is very extensively discussed by the most thorough master of equity law which America has produced, in an important case decided many years since, and which has been ever since regarded as of binding authority upon that subject in all the courts of the country where similar questions have arisen. The following points were here ex for the payment of debts, and for that purpose only. 3. Estates descended. 4. Estates specifically devised, though charged generally with the payment of debts. Real estate is not liable to contribute to make up any deficiency in the personalty for the payment of legacies. Hayes v. Seaver, 7 Greenl. 237; Humes v. Wood, 8 Pick. 478. The order of marshalling assets is extensively discussed in Hays, Executor, v. Jackson, 6 Mass. R. 149, 151, where the order is given much as herein before stated. In Hubbell v. Hubbell, 9 Pick. 561, the court say lands specifically devised are not liable to be sold for the payment of specific legacies, or for the payment of debts, in order to enable the executor to deliver chattels specifically bequeathed. But where a legacy is made a charge upon the land devised, the land is the fund for the payment of the legacy, and the personalty is thereby exempt. Holliday v. Summerville, 3 Penn. R. 533; Ward v. Ward, 15 Pick. 511. No particular form of disclaimer of a devise, with charge, is requisite in order to prevent any personal obligation attaching to the devisee. It is sufficient that he do not accept the devise. Ib. Devise of half the testator's estate to one of his children, and the rest to his other children. Held, the first half not chargeable with debts. Shorr v. McCameron, 11 S. & R. 252. A mere charge or direction to the devisee to pay money to another does not create a charge upon the estate, but only a personal duty upon the devisee. Fox v. Phelps, 17 Wend. 393 ; s. c. 20 id. 437. *Livingston v. Newkirk, 3 Johns. Ch. 312. The learned Chancellor here says, that the general and natural order of marshalling assets for the payment of debts is: 1. The personal estate; 2. Lands descended; 3. Lands devised. Lord Thurlow, in the discussion of Donne v. Lewis, 2 Br. C. C. 257, thus classifies the order: 1. The general personal estate; 2. Ordinarily speaking, estates devised for the payment of debts; 3. Estates descended; 4. Estates specifically devised, even though they are generally charged with the payment of debts. This subject is next brought before Lord Alvanley, in Manning v. Spooner, 3 Vesey, 114, where the authorities are again very extensively re pressly decided: After-acquired lands do not pass by the will, unless there is some statutory provision to control the matter, as there is at present in England and in most of the American states. An equitable interest in land, founded on a contract of purchase, will pass by a subsequent devise, and if there be no devise, it will descend to the heir, and the executor must pay the purchase-money for the benefit of the heir. 19. If the executor or administrator pay debts out of his own estate to the value of the assets in his hands, he may apply these assets to reimburse himself, and by such election the assets become his own property. If an executor be directed to sell land, it seems that he cannot retain it as he may personal assets. But if he have paid debts to the value of such land, he may sell the land and retain the proceeds for his indemnity. Lord Alvanley here adopts the same classification in regard to the order of marshalling assets in the payment of debts as that already stated in the case of Livingston v. Newkirk, ante, note 33. Lord Eldon, although often expressing doubts and difficulties with the earlier cases, did not dissent from or qualify them, as we have already seen; and such is the result to which the learned Chancellor comes in the case last named. Hence we may now safely conclude that is the settled law upon the subject of marshalling assets for the payment of debts. 20. The most obvious, and the chief reason, why descended estates have been held liable before devised estates, is, that every devise of real estate is regarded as specific, and this will be so regarded, although the devise be contained in a general clause in the will, or even where it comes under the general words, "all the residue of my estate, real and personal." The viewed. The conclusion to which this able and learned equity judge came was, that the priority of the liability of devised estates to descended estates depended upon there being a specific gift of any part of the estate for the purpose of paying debts, and not a mere general charge. 35 Forrester v. Lord Leigh, Amb. 171; Keeling v. Brown, 5 Vesey, 359; Milnes v. Slater, 8 Vesey, 295, 303; Mirehouse v. Scaife, 2 My. & Cr. 695. But this only extends to the case of countries where the testator can only dispose by authorities are here so elaborately discussed, that a brief outline of the results will be valuable to be here presented. 21. The question arose here between general pecuniary legatees and the residuary legatee of the real estate, under the law as it stood before the late English statute. In examining the authorities, the Lord Chancellor considered that Hanby v. Roberts 36 turned on the rule established in the earlier cases.37 This rule is thus very distinctly stated, in Bligh v. The Earl of Darnley one by will gives several legacies, some charged on real estate and others not; if the personal estate proves not sufficient to pay all the legacies charged on the real estate, they shall be paid thereout; and if they have been paid out of the personal estate, the other legacies as to so much shall stand in their place upon the land. 22. We see no reason to doubt this as the existing rule of law upon that point. And the question in regard to what language shall be sufficient to charge pecuniary legacies upon real estate must depend upon intent. It is held that where the will charges legacies generally upon land, as by devising the land to one, after payment of debts and legacies, this will extend not only to legacies given by the will, but to those given by any after codicil.38 But where the charge is only to pay the legacies "hereby given," it will not extend to legacies given in a codicil not executed so as to charge lands.39 And the early case 40 will of such real estate as he is seised of at the date of his will, and not where, as by the recent English statute, and those of most of the American states, one may dispose of all his real estate at the time of his decease, although acquired subsequent to the date of the will. In such cases, the residuary clause in the will operating upon subsequently acquired lands, no devise of real estate will be regarded as specific, unless it contains a description of the estate sufficient to enable the devisee to identify the same. 36 Amb. 127. Bligh v. Earl of Darnley, 2 P. Wms. 619; Masters v. Masters, 1 P. Wms. 421, and which is recognized in Bonner v. Bonner, 13 Vesey, 379. Hannis v. Packer, Amb. 556. Bonner v. Bonner, 13 Vesey, 379; ante, pt. 1, § 22. 40 Gower v. Mead, Prec. in Ch. 2. where it is held, that upon a general devise of land upon condition that the devisee, within two months after the death of the testator, pay the debts and the legacies within three months, and make no disposition of the personal estate, that shall be first applied, in case of the real estate devised, so far as it will go, seems to rest upon sound principle, although sometimes questioned. 23. Where the devise of the personal estate, and also of the real, is specific, both must contribute to the payment of debts pro rata.41 And it seems that where the legacy is general, and the payment out of personalty is disappointed by the devise of real estate subject to a mortgage by a former owner, and the mortgagee going against the personal estate for the payment, that the legatee may stand in the place of the mortgagee, but not where the personalty is absorbed by the payment of specialty debts.42 Lord Hardwicke here refused to marshal the assets in favor of pecuniary legatees, so as to throw the debts upon the real estate devised in the residuary clause of the will, saying that every devise of land is specific, as no more passes by the will than the testator has at the time. The same rule is maintained in Scott v. Scott, and seems to be favored in Herne v. Meyrick. And the same point is decided in a later case, where Lord Maccles 43 45 "Long v. Short, 1 P. Wms. 403. But it is said here by way of supposition, "if the devise to A" [of the estate in fee] "had been of all the rest of his estate, then A should have paid the debts." And this is argued by Lord Cottenham, in Mirehouse v. Scaife, as the established rule of law at the present day. 42 Forrester v. Lord Leigh, Amb. 171. The general doctrine is here fully recognized, that a mortgage upon land devised created by a former owner is not entitled to be exonerated out of the personal estate. The Lord Chancellor says here: "A mortgage is a lien and an estate in the land. By devise of land mortgaged nothing passes in point of law but the equity of redemption, if it is a mortgage in fee." See also Powell v. Robins, 7 Vesey, 209. 43 Amb. 383. # 1 P. Wms. 201. But it is here said it would be otherwise if the land had descended to the heir, instead of being specifically devised in tail. 45 Clifton v. Burt, 1 P. Wms. 678. field said: "Every devise of land is a specific legacy, and shall not be broken in upon, or made to contribute towards a pecuniary legacy." 24. But it was finally determined in the House of Lords,46 that as between a residuary devisee and a specific devisee, that the former should first be made to contribute to the payment of general pecuniary legacies charged upon all the estate generally. The case came up from the decision of the Court of Exchequer, where it had been decided that there was no difference between the two, inasmuch as both were equally specific. But the House of Lords, upon the concurrence of opinion between Lords Eldon and Redesdale, who appear to have been consulted, came to a different conclusion, upon the ground obviously of an apparent difference in the expressed purpose of the testator. Lord Manners is reported to have said on this occasion: "By the general rule, a specific devisee or specific legatee shall not contribute to make good a pecuniary legacy; but there can be no such rule applicable to a residue." Lord Cottenham here insists that this rule must be received with some qualification. For where the will enumerates all the testator's property, and then gives certain specified articles or estates to one or more legatees or devisees, and the remainder to another, the latter bequest is as specific as the former. And he further argues, very justly, that there can be no difference between giving real estate by such general terms as "all my land" in such a town or county, and the residue of my real estate, embracing precisely the same thing. 25. In a decision by Sir John Romilly, M. R., in a very late case, that experienced and learned judge thus sums up the law': "The general principle to be deduced from the cases was, that a testator, knowing that his personal estate was the primary Spong v. Spong, 3 Bligh, N. s. 84. 47 Ion v. Ashton, 6 Jur. N. s. 879. |