true that a will of a testator unless it contains some provision to the contrary, operates upon all property, real or personal, which he owns at the time of his death, the old rule of the common law having been generally superseded or abolished. The general rule is that where a testator by a general residuary clause unqualifiedly and without restriction devises and bequeaths the residue of his estate generally and not specifically, and no provisions of the will indicate a contrary intention, and since intestacy, even partial, is to be avoided, all legacies and devises which fail, either through invalidity or lapse, fall into the residuum.59

59 In

re Rymer, L. R. (1895) 1 Ch. Div. 19; Reynolds v. Kortright, 18 Beav. 417, 427; Markham v. Ivatt, 20 Beav. 579; Fisk v. Attorney-General, L. R. 4 Eq. Cas. 521; Doe d. Stewart v. Sheffield, 13 East 526; Corporation of Town of Whitby v. Liscombe, 22 Grant Ch. (U. C.) 203; Johnson v. Holifield, 82 Ala. 123, 2 So. 753; Bill v. Payne, 62 Conn. 140, 25 Atl. 354; Thweatt v. Redd, 50 Ga. 181; English v. Cooper, 183 Ill. 203, 55 N. E, 687; Dorsey v. Dodson, 203 Ill. 32, 67 N. E. 395; West v. West, 89 Ind. 529; Cunningham v. Cunningham, 18 B. Mon. (Ky.) 19, 68 Am. Dec. 718; New Orleans v. Hardie, 43 La. Ann. 251, 9 So. 12; Stetson V. Eastman, 84 Me. 366, 24 Atl. 868; Dulany v. Middleton, 72 Md. 67, 19 Atl. 146; Reid v. Walbach, 75 Md. 205, 23 Atl. 472; Minot v. Baker, 147 Mass. 348, 9 Am. St. Rep. 713, 17 N. E. 839; Dexter v. President etc. of Harvard College, 176 Mass. 192, 57 N. E. 371; Mann

v. Hyde, 71 Mich. 278, 39 N. W. 78; Dozier v. Dozier, 183 Mo. 137, 81 S. W. 890; Garthwaite's Exr. v. Lewis, 25 N. J. Eq. 351; Burnet's Exrs. v. Burnet, 30 N. J. Eq. 595; Sanford v. Blake, 45 N. J. Eq. 248, 17 Atl. 812; Ward v. Stanard, 82 App. Div. (N. Y.) 386, 81 N. Y. Supp. 906; Spencer v. De Witt C. Hay Library Assn., 36 Misc. Rep. (N. Y.) 393, 73 N. Y. Supp. 712; Lamb v. Lamb (Lamb v. Forsyth), 131 N. Y. 227, 30 N. E. 133; In re Tompkins' Will, 154 N. Y. 634, 49 N. E. 135; Langley v. Westchester Trust Co., 180 N. Y. 326, 73 N. E. 44; Lindsay v. Pleasants, 4 Ired. Eq. (39 N. C.) 320; In re High's Estate, 136 Pa. St. 222, 20 Atl. 421; In re Wood's Estate, 209 Pa. St. 16, 57 Atl. 1103; Fiske v. Fiske, 26 R. I. 509, 59 Atl. 740; Prison Assn. v. Russell, 103 Va. 563, 49 S. E. 966.

As to residuary devises and legacies generally, see §§ 668-681. The Illinois statute reading as

CHAPTER XXVIII.

CHARGES FOR PAYMENT OF DEBTS AND LEGACIES.

§ 782. As to liability of heir, devisee or legatee for debts of decedent: Common law rule.

§783. The same subject: Statutory changes.

§ 784. Order in which property is resorted to for payment of debts.

§ 785. Personal property of estate is primarily liable for debts and legacies.

§ 786. Direction in will that all debts and legacies be paid.

§ 787. The same subject: Construed, if possible, as referring to

personalty.

§788. The same subject: Doubtful expressions.

§ 789. Direction in will that executor pay all debts and legacies.

§ 790. Presumption where testator knows the personalty is inade

quate.

§ 791. Waste of personalty by executor.

§ 792. Charges on lands specifically devised.

§ 793. Exoneration of personalty from charges: Personalty specifically bequeathed.

§ 794. Common law rule as to debts secured by mortgage.

§ 795. The same subject: Expressions of intent.

§ 796. The same subject: Exceptions to rule.

§ 797. Testamentary gift of mortgaged property: Modern rule.

§ 798. Effect of blending realty with personalty.

§ 799. Effect of realty and personalty being blended in the residuary clause.

§ 800. Whether the charge is upon the devise or upon the devi

see.

§ 801. The same subject.

§ 802. Limitations upon charges. §803. Charges following the land.

§ 804. Marshaling of assets.

§ 805. The same subject.

§ 806. Widow's right of dower.

§ 807. Constructive or equitable conversion defined.

§ 808. Conversion depends on intention of testator: How ex

pressed.

§ 809. Time when conversion is considered to take place.

§ 810.

§ 811.

Effect of failure of purpose for which sale was directed. Realty converted into personalty does not bar dower, but otherwise is distributed as personalty.

§ 812. Reconversion defined: How effected.

§ 782. As to Liability of Heir, Devisee or Legatee for Debts of Decedent: Common Law Rule.

The rule of the early common law was that the heir of a decedent took title by descent rather than by devise although the property which he inherited was likewise given him by will. In such a case the devise was in effect void. If the estate devised differed from that which went to the heir by inheritance, he took such estate by purchase.1 This rule was changed by the statute of 3 and 4 Wm. IV, ch. 106, sec. 3, which provided that all lands devised to an heir should go to him as a devise and not by descent. The reason for the common law rule was that it was desirable that the heir should take by descent because it was convenient that the property should be assets in his hands.2

At common law the realty descended to the heir while the personalty passed to the personal representatives of the decedent for administration and satisfaction of claims against the estate. Realty was chargeable in the hands

1 Haynsworth V. Pretty, Cro. Eliz. 833; Clark v. Smith, 1 Salk. 241; Chaplin v. Leroux, 5 M. & S. 14; Ellis v. Page, 7 Cush. (61

Mass.) 161; Whitney v. Whitney, 14 Mass. 88.

2 Chaplin v. Leroux, 5 M. & S. 14.

of the heir only with specialty debts or those of record. The heir was not liable for the simple contract debts of the decedent, and his liability for specialty debts wherein he was named did not exceed the value of the lands taken. A devisee, since he took by purchase and not by descent, as did the heir, was not liable for any of the debts of the decedent; nor did any such liability attach to a legatee although he might have secured from the executor or administrator some of the assets of the estate."

§ 783. The Same Subject: Statutory Changes.

By the statute of 3 and 4 W. & M., ch. 14, a right of action was given against devisees jointly with the heir in favor of specialty creditors whose claims could be recovered by an action of debt;s later, by the statute of 1 Wm. IV., ch. 47, the remedy could be enforced against the devisee alone. Subsequent, by the statute of 3 and 4

3 A specialty debt was one created by deed or an instrument under seal. It included not only the obligation to pay money, but also the performance of some act. -Powdrell v. Jones, 18 Jur. 1048; In re Dickson, 40 L. J. Ch. 707; Hodgson v. Shaw, 3 Myl. & K. 183; Speer v. Wilkins, 31 Ga. 289; M'Dowell v. Caldwell, 2 McCord Eq. (S. C.) 43, 56, 16 Am. Dec. 635. Specialty debts were abolished in England by the statute of 32 and 33 Vict., ch. 46, and in almost all of these United States.

4 Ryan v. Jones, 15 Ill. 1; Hoffman v. Wilding, 85 Ill. 453; Evans v. Fisher, 40 Miss. 643; Ministers etc. of Episcopal Church v. WalII Com. on Wills-18

lace, 10 N. J. L. 311; Deyo v. Morss, 30 N. Y. App. Div. 56, 51 N. Y. Supp. 785.

5 Dyke v. Sweeting, Willes 585; Hays v. Jackson, 6 Mass. 149; Sauer v. Griffin, 67 Mo. 654; Ticknor v. Harris, 14 N. H. 272, 40 Am. Dec. 186.

6 Wilson v. Knubley, 7 East 128; Plunket v. Penson, 2 Atk. 290, 292; People v. Brooks, 123 Ill. 246, 248, 14 N. E. 39; Rogers v. Farrar, 6 T. B. Mon. (22 Ky.) 422; Sauer v. Griffin, 67 Mo. 654.

7 Rogers v. Farrar, 6 T. B. Mon. (22 Ky.) 422; Ticknor v. Harris, 14 N. H. 272, 40 Am. Dec. 186.

s Wilson v. Knubley, 7 East 128.