Lightfoot et al. v. Lightfoot's Executor. LIGHTFOOT ET AL. US. LIGHTFOOT'S EXECUTOR. [MARSHALLING OF ASSETS BETWEEN HEIR AND LEGATEE, ON BILL FILED BY EXECUTOR FOR SETTLEMENT OF ESTATE IN EQUITY.] 1. English doctrine.-In England, though the personal estate is the primary fund for the payment of debts, yet the testator himself, by express direction or plain implication, might devote his realty to that object instead of his personalty; and whenever debts are thus chargeable on land, while the personalty is given either pecuniarily or specifically, courts of equity, acting on the presumed intention of the testator, will so marshall the assets as to exonerate the personalty and throw the debts on the realty. 2. Descended lands liable for debts in ease of what legacies.-Descended lands are liable for the excess of debts, after the provision made by the testator is exhausted, before general pecuniary legacies, or other specific legacies; and a gift of all the property of a specified kind which the testator possesses, when not given as a residuary bequest, is for this purpose considered specific. 3. Under statutes of this State.-In this State, although the personalty is the primary fund for the payment of debts, yet the real estate is also bound for them, irrespective of their character, to the same extent that recognizances and debts by specialty bound real assets in England; and hence, with us, descended lands are liable for the excess of debts, in exoneration of a legacy of "all the negroes not before bequeathed." APPEAL from the Chancery Court of Madison. Heard before the Hon. E. D. TOWNES. THIS bill was filed by John F. Wyche, as executor of the last will and testament of Clackston Lightfoot, deceased, against the heirs-at-law and legatees of said decedent; asking the direction of the court in the settlement and distribution of his estate. The bill alleges, that said testator died in October, 1846, having first made and published his last will and testament in writing, dated November 29, 1842, which was duly admitted to probate after his death, and which, after making several specific bequests and devises, and directing his executor to sell a certain tract of land, two negroes, crop of cotton and corn, and all stock not bequeathed, and pay his debts out of the proceeds of sale,-contained a bequest in these words: "All the negroes not before bequeathed, and what surplus of money may be left after paying my debts, I will, give, and bequeath to the children of my brother Harri Lightfoot et al. v. Lightfoot's Executor. son Lightfoot, to be equally divided among them, and given off to them as they attain the age of twenty-one years, or when they marry." It is further alleged, that said testator, after the execution of his said will, acquired another tract of land and several slaves, as to which he died intestate; that these have been sold by the executor, under an order of the Probate Court, for the purpose of distribution, and the proceeds of sale are now in his hands; that all the specific legacies have been paid and delivered, and refunding bonds taken from the legatces, but the slaves bequeathed to the children. of Harrison Lightfoot are still in the exccutor's possession ; that the fund appropriated by the testator to the payment of his debts has been exhausted, leaving debts to the amount of $2,000 still unpaid, and to pay these resort must be had, under the direction of the court, either to said descended lands or to said legacy to the children of Harrison Lightfoot. The heirs-at-law demurred to the bill for want of equity, but their demurrer was overruled. During the progress of the suit, an order of reference was made of the matters of account; and the register's report thereon shows, that of the debts for which the executor was allowed a credit, nearly $3,000 was "for expenses, &c., incurred after the testator's death." The cause was submitted to the chancellor, on a motion for instructions to the master in stating the account for final settlement; and he thereon rendered a decree, holding that the legacy to the children of Harrison Lightfoot was general, and was therefore liable for the excess of debts before the descended lands could be resorted to. The account was stated in conformity with these instructions, and a final decree rendered accordingly; and from this decree the children of Harrison Lightfoot now appeal. WM. RICHARDSON and LUKE PRYOR, for appellants: I. The legacy to the children of Harrison Lighfoot is specific. It could be distinguished from the rest of the testator's estate at the time of his death.-Roper on Legacies, vol. 1, pp. 200, 203, 213, 217; White & Tudor's Leading Cases in Equity, vol. 2, pt. 1, pp. 397, 400, 221. Even the words 'remainder', 'residue', &c., though in terms residuary, are sometimes held specific.-Roper, vol. 1, pp. 240, 356. Specific Lightfoot et al. v. Lightfoot's Executor. legacies only abate among themselves for the payment of debts, and are not resorted to until real estate descended is first exhausted.-White & Tudor's L. C., vol. 2, pt. 1, p. 405. Specific legacies are subject to ademption, while general legacies are not.--Ib. pp. 386, 405. That the doctrine of ademption is recognized in this State, see Roberts v. Weatherford, 10 Ala. 72. It is clear that this legacy could have been adeemed. II. But, conceding this to be a general legacy, yet it will not be taken to pay debts, until the general personal estate, or personal estate unbequeathed, real estate devised for the payment of debts, and real estate descended, have been first exhausted. White & Tudor's L. C., vol. 2, pt. 1, pp. 392-3. After-acquired lands, in the hands of the heir, will be charged with the debts, which are per se chargeable on land, even when there is a general charge on the land by the will.-Ib. pp. 225-6. In this State, all lands are chargeable with the debts of the deceased; and there is no distinction between specialty and simple contract creditors. When there are two funds to which creditors have a right to resort, a legatee shall not be disappointed by their act. If there are legacies and debts by specialty, and the real estate descends, if the creditors exhaust the personal estate, the legatee may come against the real estate in the hands of the heir, and a court of equity will marshall the assets for that purpose.-White & Tudor's L. C., vol. 2, pt. 1, pp. 183-4, 187-90. 3. Independent of the character of the legacy--whether specific, general, or residuary--it cannot be resorted to for the payment of debts until the real estate descended or afteracquired lands are exhausted, for another reason. Numerous decisions of this court settle the rule, that the intention of the testator, if not contrary to some positive rule of law, shall govern the disposition of his property; and that, to ascertain this intention, all parts of the will must be looked to and construed together. The application of this rule to the present case, it is insisted, shows that the testator intended that this legacy should be exempt from the payment of debts; and this intention being ascertained, a court of equity will so marshall the assets as to effectuate it.-Williams on Executors, vol. 2, pp. 1009, 1212; White & Tudor's Leading Cases, vol. 2, pp. Lightfoot et al. v. Lightfoot's Executor. 215, 225; Farley v. Gilmer, 13 Ala. 141, and cases cited. The case cited from 4 Mass. 357, was decided under a special statute, and has no application here. 4. This legacy vested immediately upon the testator's death. At common law, a vested specific legacy, free of all conditions and contingencies, if not postponed by the will, was payable immediately upon the testator's death; while a general legacy was not payable until the expiration of one year. White & Tudor, pp. 393-5. Under the statutes of this State, although the legacy vests immediately, it is not demandable until after the expiration of eighteen months, in order that the administrator may appropriate it, if necessary, to the payment of debts; but when the legacy is not required for the payment of debts, the legatee's right relates back to the testator's death, and draws interest or hire.-Hallett & Walker v. Allen, 13 Ala. 554; Broadnax v. Sims, 8 ib. 497. The chancellor's decree is therefore erroneous, in subjecting the hire of the negroes bequeathed to the children of Harrison Lightfoot to the payment of debts, in exemption of the after-acquired lands. So far as this question is concerned, there is no distinction between debts created by the testator in his lifetime and debts created in the course of administration after his death. ROBINSON & JONES, contra: 1. The court properly charged the debts in question on the legacy to the children of Harrison Lightfoot, because the will, in terms, does the same. II. The personal estate is the primary fund for the payment of debts.-Kelsey v. Western, 2 Comst. 501; Hayes v. Jackson, 6 Mass. 149; Tate v. Hardy, 6 Cowen's R. 333; Livingston v. Newkirk, 3 Johns. Ch. 312; White & Tudor's Lead. Cases in Equity, vol. 2, pt. 1, p. 215; Clay's Digest, p. 191, § 1. This, as a general proposition, is not denied by the appellants; but they seek to avoid its application in this case, on the ground, first, that their legacy is specific. On the contrary, that their legacy is residuary, or, at least, general, is shown by the following considerations:-- First-A specific legacy is a bequest of a particular chattel, specifically described, and distinguished from all others of the Lightfoot et al. v. Lightfoot's Executor. same kind.-Lovelass on Wills, 440; Ward on Legacies, 16; Childress v. Childress, 3 Ala. 753; White & Tudor, vol. 2, p. 382. Second-A specific legacy fails, if the property cease to exist in specie before the will goes into effect, whether it be destroyed or changed into other property.-Ward on Legacies, 16; Lovelass on Wills, 441. Third-In regard to personalty, a will takes effect at the testator's death, and, in the absence of words showing a contrary intention, must be construed as if made at that time.-Hardy v. Toney, 20 Ala. 238; Atwood's Heirs v. Beck, 21 ib. 590. Fourth-When rules of construction have to be resorted to, the court always inclines against construing a bequest to be specific.-White & Tudor's Leading Cases, vol. 2, pp. 382, 406. Fifth-Specific legacies do not contribute to pay debts, in case of deficiency of assets, until the residuary and general legacies are exhausted; but when this happens, specific legacies abate among themselves. Lovelass, supra, 441; White & Tudor, supra, 216, 405. The application of all these rules shows that this bequest is not specific. At common law, a general legacy of personal property must be applied to the payment of debts before lands descended to the heir. Livingston v. Newkirk, 3 Johns. Ch. 309; 2 Smith's Chancery Practice, 274; Hayes v. Jackson, 6 Mass. 149; White & Tudor's Leading Cases in Equity, vol. 2, p. 216, note; Jarman on Wills, vol. 2, p. 546. Some of the authorities, it is true, hold that lands descended are to be taken to pay debts before a general pecuniary legacy; but none of them assert that such lands are to be exhausted before general legacies of personal property. The statutes of this State adopt a new and arbitrary rule for the appropriation of assets to the payment of debts, and make debts, in the absence of any adequate provision for them in the will, primarily chargeable on the personalty, whether bequeathed or not, and whether the lands descend or not. The act of 1806 provides, that "the goods and chattels, or personal estate, of any person deceased, whether testator or intestate, shall stand chargeable with the payment of all the just debts and funeral expenses of the deceased, and the charges of settling said estate"; and that "the lands, tenements, and hereditaments shall stand chargeable with all |