even where at the time the will was made the personal estate was sufficient to pay a legacy to the testator's son, but at the time of the testator's death his property had so changed that the legacy could not be paid except from the realty, it was held that, as the will taken as a whole clearly showed an intent that the legacy should be paid in any event, it should constitute a charge upon the land."

§ 791. Waste of Personalty by Executor.

48

The fact that the executor has wasted the personal estate will give legatees no claim upon the lands devised to him. It has even been said that where legacies are charged upon the realty in case the personal estate prove insufficient, and the latter does prove insufficient through the wastefulness of the executor, the legatees will have no lien upon the realty.50 But when a legacy is charged upon the realty, the fact that the legatee accepted the executor's note in payment, giving a receipt in full, will not estop him from resorting to the land after judgment upon the note and return of execution unsatisfied.51

§ 792. Charges on Lands Specifically Devised.

Where the realty is specifically devised, doubtful words will not be construed to exonerate the personalty from payment of debts and legacies.52 Accordingly, a charge of legacies on the real estate, or all the real estate of the testator, does not prima facie charge lands specifically

48 Scott v. Stebbins, 91 N. Y. 605.

49 Sims v. Sims, 10 N. J. Eq. (2 Stockt.) 158; Wilkes v. Harper, 1 N. Y. 586.

See § 705.

50 Richardson v. Morton, L. R. 13 Eq. 123.

51 Shanck v. Arrowsmith, 9 N. J. Eq. (1 Stockt.) 314; Terhune v. Colton, 10 N. J. Eq. (2 Stockt.) 21.

52 Arnold v. Dean, 61 Tex. 249.

devised.53 Thus, where the testator wrote, "I charge and encumber all my estates of every description with the following legacies," although the executors and legatees were empowered to distrain any part of the estate for interest on the legacies, it was held that the specific devises were not charged.54 But by way of exception to this general doctrine, it has been held that if the testator charge his real estate with debts and legacies, inasmuch as the debts are a charge on lands specifically devised, the legacies also are charged upon specific devises.55 Where the testator does charge lands specifically devised with the payment of a certain legacy, the devisee, if he accepts the devise, obligates himself to pay the charge.56

§793. Exoneration of Personalty From Charges: Personalty Specifically Bequeathed.

"The charging the real estate ever so anxiously for payment of debts is not of itself sufficient to exempt the personal estate."57 In order that the personal estate may be exonerated, there must be an evident intention not only to charge the realty, but to discharge the personalty.58 Such an intention may be shown by the whole

53 Spong v. Spong, 3 Bligh N. S. 84; Conron v. Conron, 7 H. L. Cas. 168.

54 Conron v. Conron, 7 H. L. Cas. 168.

55 Maskell v. Farrington, 1 N. R. (Eng.) 37.

56 Kakuska v. Roubyk, 155 Ill. App. 452; Mohn v. Mohn, 148 Iowa 288, 126 N. W. 1127.

57 Tait v. Northwick, 4 Ves. Jun. $16, 823.

58 Tait v. Northwick, 4 Ves. Jun. 816, 823; United States v. Parker, 2 McAr. (D. C.) 444; Marsh v. Marsh, 10 B. Mon. (Ky.) 360; Seaver v. Lewis, 14 Mass. 83; Tole v. Hardy, 6 Cowen (N. Y.) 333; Robards v. Wortham, 17 N. C. (2 Dev. Eq.) 173, 179; Palmer v. Armstrong, 17 N. C. (2 Dev. Eq.) 268; In re Hanna's Appeal, 31 Pa. St. 53, 57; In re Crone's Appeal, 103 Pa. St. 571; Monroe v. Jones, 8 R. I. 526.

personal estate being specifically bequeathed, together with provisions for the payment out of the realty of all those charges which would primarily affect the personalty.59 With respect to legacies and annuities-for the payment of which the personal estate is primarily liable— an intention to exonerate the personalty from such liability may be inferred from their being charged upon particular parts of the real estate,60 or upon certain other legacies of personalty, or from a direction that land be sold and the legacies paid out of the proceeds.o2

61

It has been held in New York that if legacies are expressly charged upon land and the personalty is specifically disposed of, the latter is exonerated and the land is primarily liable; but that if the personalty be not specifically bequeathed, it is primarily liable.63 So where all the personal estate was specifically bequeathed to the testator's widow, and the realty was devised to trustees to sell and pay debts, funeral expenses, etc., it was decided that the personalty was thereby exonerated. But a specific bequest of the personalty alone, without a provision for the payment of funeral and other expenses out of the realty, is not sufficient to exonerate the former

59 Michell v. Michell, 5 Madd. 69; Driver v. Ferrand, 1 Russ. & M. 681; Blount v. Hipkins, 7 Sim. 43; Plenty v. West, 16 Beav. 173. But see Gilbertson v. Gilbertson, 34 Beav. 354; Scott v. Scott, 18 Grant (U. C.) 66.

60 Creed v. Creed, 11 Cl. & F. 491; Lomax v. Lomax, 12 Beav. 285, 290; Ion v. Ashton, 28 Beav. 379; Larkin v. Mann, 53 Barb. (N. Y.) 267; Cole v. Cole, 53 Barb. (N. Y.) 607.

61 Jones v. Bruce, 11 Sim. 221; Lamphier v. Despard, 2 Dru. & Walsh 59.

62 Hancox v. Abbey, 11 Ves. Jun. 179; Dickin v. Edwards, 4 Hare 273.

63 Hoes v. Van Hoeson, 1 Barb. Ch. (N. Y.) 379, 400.

64 Greene v. Greene, 4 Madd. 148; Lance v. Aglionby, 27 Beav. 65.

from these charges. Nor does the rule with respect to exoneration apply so strongly to a case where provision is made for the payment of a particular debt out of the real estate.66

An intention to exonerate the personalty may be also inferred from other circumstances, as where the realty is devised for payment of debts, and the residue, after payment thereof, is directed to be added to the personal estate;67 and so, too, where a term of five hundred years was created for the payment of debts, and the costs of administering the real as well as the personal estate were charged together under the trusts of the term.68 But if an annuity or legacy be charged upon a particular fund which fails, the personal estate will generally become secondarily liable."

8794. Common Law Rule as to Debts Secured by Mortgage.

At common law, debts created by the testator and secured by mortgage, either upon lands or chattels, were primarily payable out of the personal estate in the same manner as the other debts of the testator.70 So, also, the specific legatee of articles which had been pawned or pledged was entitled to require of the executors that the testator's right of redemption should be exercised for his benefit. If the executors failed to perform this duty,

71

65 Collis v. Robins, 1 De Gex & S. 131.

66 Hancox v. Abbey, 11 Ves. Jun. 179; Evans v. Cockeram, 1 Coll. C. C. 428.

67 Webb v. Jones, 2 Bro. C. C. 60. 68 Bootle v. Blundell, 1 Mer. 193. 69 Mann v. Copland, 2 Madd. 223. 70 Hewes v. Dehon, 3 Gray (69 Mass.) 205; Plimpton v. Fuller,

11 Allen (93 Mass.) 139; Richardson v. Hall, 124 Mass. 228; McLenahan v. McLenahan, 3 Green C. E. (18 N. J.) 101; Gould v. Winthrop, 5 R. I. 319.

As to how interests of mortgagor and mortgagee of real estate are considered, see § 256.

71 Knight v. Davis, 3 Myl. & K. 358; Johnson v. Goss, 128 Mass. 433.

the legatee was entitled to compensation.72 Likewise arrears of rent, falling due before the testator's death," were not primarily payable by the legatee of the lease." Where the lien upon the land was for the unpaid purchase money thereof, the devisee was entitled to have it satisfied from the testator's personal estate.75 This rule has in some cases been so extended as to require that the executors should pay, for the benefit of a specific legatee of shares of stock, calls for the unpaid balance of the purchase money, even though made after the testator's death. But this is thought to have carried the doctrine too far."

§ 795. The Same Subject: Expressions of Intent.

The rule expressed in the preceding section yielded to the intention of the testator; but the courts required very clear expressions of a contrary intention, in order to impose the burden of the mortgage upon the devisee or legatee. Where an estate in mortgage was devised to one, "he paying the mortgage thereon," it was held that this imposed a condition upon the devisee, and exonerated the

72 Bothamley v. Sherson, L. R. 20 Eq. 304.

73 Hawkins v. Hawkins, 13 Ch. Div. 470.

74 Barry v. Harding, 1 Jones & L. (Ir.) 475, 489.

As to the application of the rule with reference to a sum due from the testator to his lessor with respect to a renewal granted in the Fitzwilltestator's lifetime, see iams v. Kelly, 10 Hare 266. Where the lessee was liable for dilapidations, his specific legatee

must assume the cost of repairs. -Marshall v. Holloway, 5 Sim. 196.

75 Andrews v. Bishop, 5 Allen (87 Mass.) 490, 493; Thompson v、 Thompson, 4 Ohio St. 333; In re Hoff's Appeal, 24 Pa. St. 200, 203. 76 Clive V. Clive, Kay 600; Wright v. Warren, 4 De Gex & S. 367; Blount v. Hipkins, 7 Sim. 43, 51.

77 Armstrong v. Burnet, 20 Beav. 424; Addams v. Ferick, 26 Beav. 384; Day v. Day, 1 Drew. & S. 261.