condition; for it should be expounded according to the common law, where it was not necessary to expound it to the contrary. But where a devise was to an eldest son, upon such a condition, if it should be expounded to be a condition, it would be void, and to no purpose; for it would descend upon the eldest son, and no remedy could be had against him. 7. By the common law real estates are not subject What Words to the payment of debts due on simple contract, liable to make Lands unless made so by will; which is considered by many Debts and Legacies. as a great defect, because credit is in fact given to the possessors of landed estates, in proportion to the value of such estates. He, therefore, who neglects to charge his lands with the payment of his debts, sins, as it has been emphatically said, in his grave and if he omits this circumstance, on purpose to defeat the demands of his creditors, he dies with a deliberate fraud in his heart. 8. These principles have given rise to a rule, both at law and in equity, that whenever a testator expresses an intention that all his debts shall be paid; or devises all his property, subject to the payment of his debts; his real estate shall be charged with the payment of his debts, by simple contract. Prec. in Cha. 9. A person devised in these words :-" As to my Bowdler temporal estate wherewith God has blessed me, I v. Smith, give and dispose thereof as followeth-First, I will 264. that all my debts be justly paid, which I shall at my death owe, or stand indebted in, to any person or persons whatsoever. Also I devise all my estate in G. to A. B." And this was all the estate the testa tor had. The Court held, that this will created a charge on the real estate, for payment of debts. Tompkins v. Trott v. Beachcroft v. Harris v. Ingledew, 3 P. Wms. 91. S.P. Legh v. Warrington, 1 Bro. Parl. Ca. 511. Hatton v. Nichol, Williams v. 10. A person being seised of a real estate, and also possessed of some personal estate, made his will in writing, and thereby devised in these words," Imprimis, I will and devise that all my debts, legacies, and funerals, shall be paid and satisfied, in the first place." It was held, that this clause amounted to a charge on his real estate, for the payment of debts and legacies. 11. A will began with these words:—“ As to all my worldly estate, my debts being first satisfied, I devise the same as follows, &c." The Court held it clear in this case, that no land, nor any part of the testator's worldly estate, was devised, till after his debts paid; consequently that the land was charged: and that it would have been sufficient, though the word first had been omitted.. 12. A will began in these words:"As to my worldly estate which it hath pleased God to bestow upon me, I give and dispose thereof in manner following, (that is to say,) imprimis, I will that all my debts, which I shall owe at the time of my decease, be discharged and paid." It was decreed by Lord King, that these words Forrest, 110. made the lands of the devisor liable to his debts. And this decree was affirmed in the House of Lords. 13. A testator may charge only a certain part of Shallcross v. his real property with the payment of his debts, and not the whole. 3 Ves. 545. Finden, Id. 738. Thomas v. 14. John Ivy, reciting that he had made a former 2 Ves. 313. will in the life of his wife, in which he had given her Brittnell, all his real and personal estate; that he had the misfortune to lose her, and therefore he made his will for the disposition of the same. First, he ordered all his debts and funeral charges to be honourably paid after his decease. In a subsequent clause he devised particular premises, enumerating them, excepting H. and R.; all which enumerated lands, except H. and R., he devised to trustees, by and out of the money arising by sale, and out of the rents and profits thereof, in the mean time, in the first place, to pay and discharge his debts, funeral expences, and all legacies given by his will, or by other writing under his hand. He afterwards went on and said that H. and R. should be in the first place for payment of the legacies mentioned in his will. On a bill by the creditors to have the real estate by the will subjected to the payment of their debts, in aid of the personal, so far as that proved deficient ; insisting that the whole real estate was by the will established as a fund for payment of debts. And whether the whole or any part of the real estate was subject to debts, was the question. Sir J. Strange, M. R. said, the word same must relate to the real and personal estate before given; and if it stood on that, and the word first, only, he should have no doubt but that his whole real estate would be subject to the payment of debts; not from any express mention made that they should be a charge on his real estate, but from that construction the Court makes for the benefit of creditors; and that men should not sin in their graves. Here was no express declaration on the outset of the will that the testator's whole real estate should be charged with payment of his debts; therefore it was necessary to look farther into his will, and see what was the intent of the testator, who was not bound in fact, though bound in honour, to make such a disposition for his creditors. Considering the whole, he had subjected the greatest, but not every part of his Ellison v. Aircy, 2 Ves. 568. real estate, to the payment of his debts; having excepted a particular part, and applied it to another purpose, not intending that H. and R. should be liable to be swallowed up by creditors, to the prevention of the legatees under the will: but afterwards directed what should be done with H. and R. He had personal estate, which he could not exempt from payment of his debts; he had real, the whole of which he might subject; in declaring his intent as to that, he exempted H. and R. entirely, reserving them as a fund for legacies only. On the clauses therefore altogether, and which were only clauses by which he expressly charged his land therewith; he considered how far his real estate should be chargeable to creditors; and then thought himself at liberty to apply the other part to satisfy legatees. Therefore though on the first part, the Court might take the whole real to be charged with debts, yet as there was no express lien on the real, by these general words, and afterwards he distributed such part of his real for debts, and such for legacies; it was too much to lay hold on the general words, to say the whole should be charged with payment of debts. It could only be done by implication on the general words, which might be explained afterwards, and that implication destroyed: consequently the plaintiffs could only have a decree for an account of the personal estate, and then the other parts of the real estate, except H. and R., for payment of their debts. 15. But unless the intention to exempt a particular part of the real estate be very clear, the whole will be subject. 16. T. Nichols by his will charged all his personal estate with debts and legacies; and so much as the personal estate should fall short to answer and pay, he charged all his messuages, lands, and grounds in Durham, with payment thereof, in aid of the personal estate, and directed the personal to be sold. By a subsequent clause he gave a particular farm to be sold, for payment of his debts and legacies; and by another clause, devised all his real estate so charged and chargeable to trustees, to receive and take the first two years profits, that should arise and become payable out of his estate in Durham, for payment of his debts and legacies, if the personal estate proved deficient. It was contended that only that particular part, and the two years' profits, were charged; the generality of the first charge being controuled and restrained thereto by express words. * Lord Hardwicke said, that upon all the rules of charging for payment of debts and legacies, the charge of the personal estate therewith was unnecessary. Afterwards there was a full and complete charge on the real, of so much as the personal proved not sufficient to satisfy. It must be something very strong in the will to restrain that charge to a particular part, to go no further. If it rested on the clause which gave the farm, would the express direction of the will to sell a particular estate, towards payment of those debts and legacies that the personal was not sufficient for, afford a negative implication that no more should be sold? certainly not. For there were several cases where there was a charge for payment of debts, and afterwards a direction that a particular part should be sold: that had been taken only to be a declaration that they should be first applied. Then the subsequent part was no more than what was done by the former clause, taking out a particular part; as one was of the inheritance, the |