testator to charge a general legacy upon real estate," but the question was not passed upon in that case.

The courts, however, have held that a gift of general legacies, followed by a general residuary clause, is not inconsistent with an intention on the part of a testator to charge the legacies on the land. They have therefore permitted extrinsic circumstances to be considered for the purpose of ascertaining the actual intention of the testator, and in some cases, by reading the language of the will in the light of the circumstances, have inferred an intention to charge legacies on the land, and given effect to such intention, although the language, considered independently of the circumstances, would not alone justify such an inference.

The cases of Wiltsie v. Shaw, 100 N. Y. 191, 3 N. E. 331, and McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480, illustrate very clearly the attitude of this court upon the subject. Both were cases substantially of wills giving general legacies, followed by the usual residuary clause. In each the question was whether the legacies were charged on the land. In Wiltsie v. Shaw it appeared that the testator left a large personal estate, ample for the payment of debts and legacies; and, no other circumstance appearing, it was held that a legacy given by the testator in his will, in trust for a son, was not a charge on the lands which passed to the testator's daughter under the residuary clause. In McCorn v. McCorn the legatees were the wife and son of the testator, and the gift of the legacies was followed by the usual residuary clause, under which all the testator's real estate passed to four other children. It appeared that the will was made the day before the testator's death, and that his personal estate was insufficient to pay his funeral expenses. The legacies to the testator's wife and son were mere pretenses, "unless meant to be a charge on the real estate." Under these circumstances, the court held that the legacies were intended to be charged on the realty, and sustained the claim of the legatees.

We think the cases in this state establish these two propositions: First, that general language in a will giving legacies, followed by the usual residuary clause, is alone insufficient to charge the legacies on the realty; and, second, that such language will justify such charge if it is made to appear by extrinsic circumstances, such as may under the rules of law be resorted to, to

aid in the interpretation of written instruments, that it was the testator's intention that the legacies should be charged on the land. The rule in England, and in some of the states in this country, and in the United States supreme court, is different from the rule in this state. The cases are cited in Hoyt v. Hoyt, supra. In Greville v. Browne, 7 H. L. Cas. 689, it was regarded as having been long settled in England that where legacies are given generally and the rest and residue of the real and personal estate is afterwards given in one mass, the legacies are a charge on the residuary real, as well as the personal estate. But some of the judges were of the opinion that, if the question was resnova, the natural construction of the language would lead to the opposite conclusion.

Under the rule in this state, we think the legacy of $2,000 given by the will of Job Seaman to his nephew Job S. Benjamin was not charged on the real estate which passed under the residuary clause to James O. Cronk and Matilda Cronk. The will is very simple, and is partly printed and partly written. After the usual introductory clause, the will proceeds as follows: "First, after all my lawful debts are paid and discharged, I give and bequeath to Job S. Benjamin the sum of two thousand dollars, to be paid to him within three months after my decease; secondly, I give and bequeath all the rest and residue of my real and personal estate, of whatsoever name or nature, to James O. Cronk and Matilda Cronk, to each the one-half part thereof. Likewise, I make, constitute, and appoint William H. Wright" executor, etc.

It is claimed that the words in the first clause, viz., "after all my lawful debts are paid and discharged, I give," etc. (which were printed), indicate an intention to constitute the whole estate, real and personal, a fund for the payment in the first instance of the debt and legacy. The direction as to the payment of debts was formal and conventional merely. The law charges the debts of a decedent upon his real estate, if the personal estate is insufficient to pay them. The debts owing to the testator amounted only to $114.11, and his personal property was appraised at $2,643.07, and produced $3,553.36. Similar language was in the will considered in the case In re Rochester, 110 N. Y.

159, 17 N. E. 740, and was held insufficient to create a charge on the realty.

The extrinsic circumstances do not tend to show an intention on the part of the testator to charge the legacy on his real estate. Except for the expenses allowed against the estate, growing out of a contest on the probate of the will, instituted by the legatee and a niece of the testator, and in subsequent proceedings on an accounting by the executor, the personal estate left by the testator would have been ample to have paid the legacy and the ordinary expenses of administration. The legatee was of kindred to the testator, and the residuary devisees and legatees were strangers in blood; but they became members of his family when they were children and lived with him until his death, one for the period of 20 and the other for 25 years. The testator's wife was infirm and crippled, and died a short time before the testator, and they had no children or direct descendants living. We perceive no circumstance which takes the case out of the general rule. The condition of the testator's property, when the will was made, in 1879, four years before his death, is not shown. He was a small farmer, and it is quite probable that his circumstances had not materially changed during that time. It may be assumed that the testator intended that the legacy to his nephew should be paid. But there is no presumption that when the will was made his personal estate was not adequate for that purpose. If it was not, and the fact was material, the burden of establishing it was upon the legatee, who in this proceeding is seeking to charge the real estate in a case where the language of the will does not affirmatively show that this was the intention of the testator. It is quite significant of his actual intention that he directs the legacy to be paid within three months after his death, and gives no power of sale to his executor.

We think the judgments below should be reversed, and a new trial granted, with costs to the executor appellant in all courts against the respondent, but without costs to the other defendants. All concur.

HOOVER v. HOOVER.

5 Pa. St. 351. 1847.

Appeal from the orphans' court of Cumberland.

The petition (or bill) stated that John Hoover devised a tract of land to his son David, yielding and paying out of the same $7,250, in instalments of $700; the first payable in six months after testator's decease, the second in eighteen months thereafter, and the remaining instalments yearly. Out of the first instalment a legacy of $500 was given to the petitioner. Of the residue, portions were given to the testator's other children, and the amount undisposed of, with the residue of the estate, was given equally among all the children. The petition then averred the acceptance of the land devised, prayed an order of sale, etc.

The answer of the devisee admitted the will, of which he and another were executors, and averred a settlement of an administration account, by which it appeared he had paid debts of the estate beyond the assets $1,683.63, and that debts yet remained unpaid, which, with that sum, amounted to $4,453. It further averred there were no assets nor any annual payment due out of the land which respondent could apply to the payment of legacies. That testator had made no provision by his will for payment of his debts, and that the estate would not be sufficient to pay all the legacies when the assets came to hand, but that they must abate ratably.

The complainant demurred, and the court dismissed the bill. BELL, J. It is admitted by the defendant's answer, as indeed it could not, with any show of reason, have been denied, that the sum of $7,250, bequeathed by the testator to be paid to his children in the proportions and at the time mentioned in his will, is a charge upon the lands devised to David. It is also admitted that the latter, in pursuance of the will, took possession of the lands devised, and still continues in the seisin and occupation of them. Upon these facts alone, it is not to be disputed that, having taken the land cum onere, he is bound to pay to his brothers and sisters their several legacies as they respectively fall due, and this liability may be enforced by a proceeding in the orphans' court, such as has been instituted here, under the

statute giving the specific remedy. By the terms of this will, not only is a lien created on the land devised, but the devisee, immediately upon his acceptance of it, became personally responsible to the legatees for the amount of their respective legacies. As is said in Glenn v. Fisher, 6 Johns. Ch. 33, a case which cannot, in this particular, be distinguished from the present, by acceptance, the devisee becomes absolutely bound for the legacies, and cannot set up any condition precedent to it, for the law makes none. He who accepts a benefit under a will must conform to all its provisions, and renounce every right inconsistent with them. To the same effect is the doctrine of our own case of Zobach's Case, 6 Watts, 167, which, in its leading features, is also very similar to the present. The testator, said Mr. Justice Kennedy, in delivering the opinion of the court, not only intended to charge the land, but to make it a personal charge on the devisee, and he became personally liable on taking possession under the will. These distinct liabilities are illustrated by the consideration that the estate given to David may be treated as an estate on condition. In a will, no precise form of words is necessary to create a condition. Any expressions denoting such an intention will have that effect. Thus a devise to A., "he paying," or "he to pay £500 in one year after my decease," would, it is said, be a condition for the breach of which the heir might enter. 2 Pow. Dev. 251; Barnardiston v. Fane, 2 Vern. 366; 1 Eq. Cas. Abr. 109, pl. 8. But in such a case equity would afford relief against the forfeiture, on payment of principal, interest and costs, (1 Pow. Dev. 195, note 7;) and it is not to be doubted that, on application of the party entitled to payment out of the land devised, the devisee would be compelled to perform the condition, on the principle that no man shall be allowed to disappoint a will under which he takes a benefit. Per Eyre, Chief Baron, in Blake v. Bunbury, 1 Ves. Jr. 523. But the defendant, David Hoover, endeavors to escape from the responsibility he has thus assumed, by showing that, although five instalments of $700 each were due, and payable, under the will of the testator, at the time the plaintiff filed his bill in the orphans' court, these were not sufficient in amount to cover a balance of debts remaining due from the testator's estate, after exhausting the personal estate and other lands not devised; and, therefore, he avers "there are