fund for the payment of legacies, must use clear and distinct words to exonerate it. There was no general rule, that in no case should personal estate be exonerated in the absence of express directions. What the court had to do was to gather from the will the intention of the testator. There were several modes by which the court endeavored to gather this intention.

1. It was presumed that the personal estate was primarily liable, where the real and personal estate were given to the same person.

2. It was a strong presumption in favor of the exoneration of the personal estate, where the whole personal estate was directed to be charged with some particular charges, omitting those which would otherwise have fallen on it, if no mention had been made of any particular charges.'

In the case before the court, the testator gave an annuity on rent charge, and charged it on real estate. Then he gave certain legacies and charged them on real estate, and devised the estate subject to the charge.

He charged other legacies in the same way, and then made a residuary devise in favor of the plaintiff in fee.

His honor considered that as the testator had charged certain legacies on the real estate, and devised them subject thereto, and made a similar disposition of the personal estate, it was fair to infer that he did not intend the personal estate to be charged with the payment of the charge placed upon the real estate.

26. There is one class of burdens which rest primarily upon specific real estate, although embraced within the general mass of the indebtedness of the testator. This will embrace all estates which the testator had acquired, subject to encumbrances created by others.48 The purchase of the estate subjects the vendee to the payment, or keeping down, of the charge, as an equitable implication from the acceptance of the title. But

48 Lechmere v. Charlton, 15 Ves. 193, 197, 198.

49

whether any express covenant, or contract, is given to that effect is immaterial, the real estate will be regarded as the primary fund from which the payment is to be made, unless there is some direction, or reasonable implication, in the will, that it shall be made from some other special fund, or that it shall rest upon the same basis as the other debts due from the estate.4 But if the encumbrance was created by the testator, either before or after the making of his will, it must be paid by the executor out of the personalty, unless there is a clear intention indicated by the will that the devisee shall take the estate cum onere.50 But it seems that parol evidence is not admissible to show, either directly or by way of presumption and inference, that it was the testator's intention to have an encumbrance upon a devised estate paid out of his personalty, where the presumption of law is otherwise.51

27. The same rule extends to all encumbrances upon land, devised or descended, where the encumbrance is not the proper debt of the devisor or ancestor. The debt or encumbrance remains a charge upon the land merely, and is not entitled to exoneration out of the personal estate, or out of other lands.52 This doctrine is thus defined by the learned judge, in Hewes v. Dehon : "The rule, however, we may remark by way of caution, requiring encumbrances upon the real estate to be paid from the personal property, where no other intent is expressed in the will, is to be confined to encumbrances created by the testator or his ancestor, and is not to be extended to cases where the testator or ancestor purchased the estate subject to the encumbrance

Gould v. Winthrop, 5 R. I. R. 319; Hoff's Appeal, 24 Penn. St. 200.

51 Rapalye v. Rapalye, 27 Barb. 610. And the intention of the testator to throw the burden of his debts upon specific portions of the estate disposed of in his will, and thereby exempt the residue from such burden, "must be very clearly manifested by the terms used" in the will. Swann v. Swann, 5 Jones, Eq. 297.

52 Hewes v. Dehon, 3 Gray, 205, 208.

unless the testator or his ancestor had rendered himself personally liable therefor."

28. But it is not sufficient to make the encumbrance a charge upon the personal estate, that the devisor or ancestor might have been compelled to pay the same, as between himself and the original debtor creating the charge.53 For that is always the case as between the grantor and grantee of an encumbered estate.54 To have this effect the devisor or ancestor must have assumed the debt as between himself and the creditor in the encumbrance; and it will not be sufficient that he has entered into a bond or covenant with the debtor to see him harmless in regard to it.55 The rule is thus expressed by the most distinguished of the American chancellors: 56 "As to other acts of the purchaser in his lifetime, in order to charge his personal estate as the primary fund, he must make himself, by contract, personally and directly liable at law for the debt to the owner of the encumbrance; and even a covenant or bond for the purpose will not be sufficient unless accompanied with circumstances showing a decided intention to make thereby the debt personally his own."

57

29. In England and in the State of New York this matter has been made the occasion of statutory provisions, by which all encumbrances upon land descended or devised are made a primary charge upon the lands, and not entitled to exoneration out of the personal estate, unless in the case of a will there shall be some "expression of an intention" to that effect, as it is defined in the English statute. In the New York statute it is required to shift this charge, that there shall be an "express

Scott v. Beecher, 5 Mad. 96.

54 Campbell v. Shrum, 3 Watts, 60; Trevor v. Perkins, 5 Whart. 244.

56 Tweddell v. Tweddell, 2 Br. C. C. 101, 152; Butler v. Butler, 5 Vesey,

534.

6 Cumberland v. Codrington, 3 Johns. Ch. 229, 257, 272.

57 17 & 18 Vict. ch. 113; 1 New York Rev. Stat. 749.

direction in the will." Those provisions extend to encumbrances created by the testator or ancestor as well as others. This question came recently before the English courts of equity, in a case58 where the encumbrance was the proper debt of the testator, and he had directed his executor to pay all his debts. The Vice-Chancellor, Stuart, held this a sufficient "expression of an intention" to exonerate the land. But the decree was

reversed on appeal, by the Lord Chancellor Campbell, upon the ground that such formal provisions in a will were not sufficient ground for changing the order of assets in the settlements of estates.

30. The expression of intention which shall be sufficient to control the general intendment to the law, in regard to what fund is liable to the exoneration of an encumbrance upon land devised or descended, has been variously interpreted at different periods and by different courts. It was at one time held that it required an express declaration to that effect.59 But that rule has since been relaxed; and it is now held, that if a manifest intention to that effect appears upon the face of the will, it should have the same effect.60 The Master of the Rolls, Sir William Grant, thus expresses the rule, in the last case: "There is no reason whatever, either of justice or convenience, to induce me to depart from the rule laid down by Lord Thurlow, in The Duke of Ancaster v. Mayer, requiring that, in order to exonerate the personal estate, there shall be either express words, or a plain indication of that intention. Indeed, I wish that the rule had been still more strict, and that nothing but express words had been permitted to alter the course and order of the law. Origi

68 Woolstencraft v. Same, 6 Jur. N. s. 846; s. c. 1170.

50 Fereyes v. Robertson, Bunb. 301.

60 Watson v. Brickwood, 9 Vesey, 447, 452.

61 1 Br. C. C. 454. In Bootle v. Blundell, 1 Mer. 193, it is said, the will must contain express words for that purpose, or a clearly manifested intention: a declaration plain, a necessary inference, tantamount to express words.

nally the rule was so. I find Lord Nottingham, in his manuscripts in Popham v. Bamfield, expresses himself thus: The law charges the debts upon the personal estate, and nothing can discharge it but exclusive and expressly negative words; whether in the case of hæres factus, or hæres natus.' The burden of proof is always, of course, upon the party claiming to change the order of the law.62 And this expression of intention to change the order of the law must arise from the will and not from extrinsic evidence." 63

31. The same rule prevails in most of the American states. A learned writer64 thus sums up the law upon this point with reference to mortgage debts upon land devised, but which were upon it when purchased by the testator: "The weight of authority would therefore unquestionably seem to be that the personal estate will not be primarily liable unless the testator has not merely made himself answerable for the payment of the mortgage, but has made the debt directly and absolutely his own; or has in some other way manifested an intention to throw the burden on the personalty in ease of the land." 65 The only cases which have attempted to vindicate a different view, are limited to three states, in which chancery law, not having formed a distinct branch of judicial administration, the principles of law and equity are to some extent intermingled.66

62 Whieldon v. Spode, 15 Beav. 537; Lord v. Wightwick, 1 Drew. 576. 63 Tait v. Lord Northwick, 4 Vesey, 816.

Judge Hare, 1 Lead. Cas. in Equity; Duke of Ancaster v. Mayer, 505, Am. note.

Keyzey's Case, 9 S. & R. 371; Halsey v. Reed, 9 Paige, 446.

6 Hoff's Appeal, 24 Penn. St. 200; Mitchell v. Mitchell, 3 Md. Ch. Decisions, 71; Thompson v. Thompson, 4 Ohio, N. s. 333.