personal estate ;78 "but the decision is directly opposed to two uncited cases,' 3,79 in which it was held that similar words applied to debts and legacies did not impose a condition."so Even though in devising the land the testator spoke of it as "subject to a mortgage or encumbrance," this did not so throw the charge on the estate as to exempt the funds which by law are primarily liable, the testator being considered to have used such terins merely as descriptive of the state of the property, and not for the purpose of subjecting his devise to the burden.81

§ 796. The Same Subject: Exceptions to Rule.

The devisee or legatee of mortgaged property was not entitled to have it exonerated out of personalty specifically bequeathed,82 nor out of pecuniary legacies of a certain amount,83 nor, of course, out of devises of other lands not charged by the testator with the payment of debts, although such lands might be liable to the creditor.84 The donee of the estate was not entitled to exoneration out of the personalty, where the mortgage was created not by the testator, but by a previous owner of the property bequeathed, unless a contrary intention ap

78 Lockhart v. Hardy, 9 Beav. 379. But see Hatch v. Skelton,

20 Beav. 453.

79 Bridgman v. Dove, 3 Atk. 201; Mead v. Hide, 2 Vern. 120.

80 2 Jarman, Wills (4th London ed.), 635.

81 Bickham v. Cruttwell, 3 Myl. & C. 763, 769; Goodwin v. Lee, 1 Kay & J. 377; Serle v. St. Eloy, 2 P. Wms. 386; Ancaster v. Mayer, II Com. on Wills-19

1 Bro. C. C. 454; Astley v. Tankerville, 3 Bro. C. C. 545.

82 Oneal v. Mead, 1 P. Wms. €93; Emuss v. Smith, 2 De Gex & S. 722, 737; Halliwell v. Tanner, 1 Russ. & M. 633.

83 Lutkins v. Leigh, cas. temp. Talb. 53; Lucy v. Gardiner, Bunb. 137.

84 2 Jarman, Wills (4th London ed.), 636; Galton v. Hancock, 2 Atk. 430, 438.

peared by the will, or unless the testator had assumed the debt as his own.85 If the fund designated for the payment of debts included the mortgaged estate, the mortgaged property was not exonerated.88

§ 797. Testamentary Gift of Mortgaged Property: Modern Rule.

By the statute of 17 and 18 Victoria it was enacted that, in the absence of a contrary intention, as shown, either by the will or any other document, the mortgaged estate "shall, as between the different persons claiming through the deceased person, be primarily liable to the payment of all mortgage debts with which the same shall be charged."'87 Under this act the question arises, what is a sufficient indication of a contrary intention?

In order to exonerate mortgaged property from the payment of the debt, it is sufficient if the property subject to the mortgage be specifically devised without in any manner referring to the mortgage, and some other property or fund be specially designated as the source for the payment of debts.88 But a general direction by the

A mortgage debt paid by the testator in his lifetime held a charge on land subsequently devised by him to his sons subject to the mortgage and in favor of daughters to whom he procured an assignment of the mortgage to be paid when he paid the debt.Lydon v. Campbell, 204 Mass. 580, 134 Am. St. Rep. 702, 91 N. E. 151. As to grantee of real property assuming a mortgage debt on the same in such manner as to indicate an intention to make the mortgage debt against the prop

testator that his debts be paid, without specifying any fund for such purpose, will not be construed as showing an intention to exonerate the mortgaged estate.89 Neither a direction to pay debts out of the residuary estate, nor that they be paid by the executors, is sufficient to exonerate the mortgaged property;90 but a direction to pay all debts, whether on bond and mortgage, or otherwise, will suffice.91 Where the testator expressly "charged" and made liable the estate for the payment of the debt, it .was held that, as the estate could not be charged in favor of the creditor more than it was before, it must have been the testator's intention that the devisee should bear the burden.92

erty his own, and this is clearly expressed, it has been said that the devisee of the decedent grantee may call on the personal estate to satisfy the mortgage.Campbell v. Campbell, 30 N. J. Eq. 415; Cumberland v. Codrington, 3 Johns. Ch. (N. Y.) 229.

The debts of the testator which are secured by mortgage must first be satisfied out of the mortgaged property.-Howe v. Kern, 63 Ore. 487, 125 Pac. 834; affirmed in 128 Pac. 818.

Some cases hold that the presumption is that mortgage debts are to be paid out of the personalty. In re Woodworth's Estate, 31 Cal. 595; Sutherland v. Harrison, 86 Ill. 363; Towle v. Swasey, 106 Mass. 100.

89 Pembrooke v. Friend, 1 Johns. & H. 132; Brownson v. Lawrence, L. R. 6 Eq. 1.

Contra: Moore v. Moore, 1 De Gex, J. & S. 602.

The New York statute, 1 N. Y. Rev. Stats. 749, § 4, required an "express direction to authorize the payment of real estate mortgages from the personalty. The force of such a direction, however, is not destroyed by a provision which, if ambiguous, rather supports the direction than otherwise.-Alexander v. Powell, 3 Demarest (N. Y.) 152.

Under the New York statute, if one, after making a will, mortgages land therein devised, the devisee will take cum onere unless a contrary direction be made in the will. - Wetmore v. Peck, 66 How. Pr. (N. Y.) 54.

90 Taylor v. Wendel, 4 Bradf. (N. Y.) 330; Rapalye v. Rapalye, 27 Barb. (N. Y.) 610.

91 Waldron v. Waldron, 4 Bradf. (N. Y.) 114.

92 Evans v. Cockeram, 1 Coll. C. C. 428.

§ 798. Effect of Blending Realty With Personalty.

94

Real estate may be charged with the payment of debts and legacies by being blended with the personalty,93 as where, in the same sentence, the will provides for the payment of specific amounts and also makes a devise of realty. An authority conferred upon the executors to sell any and all the realty for the benefit of the legatees is an equitable conversion of the lands, and charges them with the legacies.95 If the real estate be directed to be sold and the proceeds be given, together with the personal estate, for the payment of debts, legacies, and annuities, the two species of property are liable to the charges pari passu in proportion to their respective values.96

Where a testator by his will directs his real and personal estate to be sold and converted into a common fund, charging the fund with the payment of debts and legacies, it has been held that the charge is not primarily upon that part of the fund arising from the personalty, but that the portion arising from each is charged proportionally.97 So, also, a direction that real estate be sold and that the proceeds shall form or be considered part of the residuary personal estate of the testator, will subject the real estate to all charges affecting the person

93 Allan v. Gott, L. R. 7 Ch. App. 439; Quinby v. Frost, 61 Me. 77; Fecht v. Henze, 162 Mich. 52, 127 N. W. 26; Tracy v. Tracy, 15 Barb. (N. Y.) 503.

94 Kakuska v. Roubyk, 155 Ill. App. 452.

95 Brink v. Masterson, 4 Demarest (N. Y.) 524.

See §§ 288, 748.

96 Roberts v. Walker, 1 Russ. & M. 752; Turner v. Turner, 57 Miss. 775.

97 Roberts v. Walker, 1 Russ. & M. 752; Kidney v. Coussmaker, 1 Ves. Jun. 436; Stocker v. Harbin, 3 Beav. 479; Salt v. Chattaway, 3 Beav. 576; Reynolds v. Reynolds' Exrs., 16 N. Y. 257, 261.

alty 98 and they will each bear the liability proportionally.99 But if the two kinds of property be given together, subject to charges, without a direction that the realty be sold, the personal estate will remain primarily liable.1

If realty and personalty both be charged with the payment of legacies, the former is merely subsidiary to the latter, and can not be resorted to until the personalty is exhausted; and the mere fact that a mixed fund of real and personal estate is devised and bequeathed to the executor is not of itself sufficient to charge legacies upon the real estate.3

§ 799. Effect of Realty and Personalty Being Blended in the Residuary Clause.

The question whether real estate is charged is one of intention, and no presumption of such an intention arises from a gift of real and personal property by the same clause of the will. But if legacies be given generally, and afterward the residue of the real and personal estate be given in one mass, the legacies constitute a charge upon the whole residuary estate, real as well as per

98 Kidney v. Coussmaker, 1 Ves. Jun. 436; Bright v. Larcher, 3 De Gex & J. 148; Field v. Peckett, 29 Beav. 568.

99 Simmons v. Rose, 6 De Gex, M. & G. 411, 413.

1 Boughton v. Boughton, 1 H. L. Cas. 406; Tench v. Cheese, 6 De Gex, M. & G. 453.

2 Blann v. Bell, 5 De Gex & S. 658; Quennell v. Turner, 13 Beav. 240; Whieldon v. Spode, 15 Beav.

3 Nyssen v. Gretton, 2 You. & C. 222; Reynolds v. Reynolds' Exrs., 16 N. Y. 257, 262.

4 Smith v. Bush, 59 Misc. Rep. 648, 111 N. Y. Supp. 428; McGoldrick v. Bodkin, 140 App. Div. 196, 125 N. Y. Supp. 101; Brennan v. Brennan, 127 N. Y. Supp. 420; Reynolds v. Reynolds' Exrs., 16 N. Y. 257, 262; Armentrout v. Armentrout's Legatees, 111 Va. 348, 69 S. E. 333.