or land, i. e. as personal or real estate. If such devisee makes his will, and describes such interest as money, it will pass without attestation; but without such indication of intention to treat it as money, it remains real, and the will to pass it must be attested'. This being the doctrine on this subject in a court of equity, it follows, that if, after directing an estate to he sold for the payment of particular legacies by a will duly executed and attested, a testator might, by an unattested codicil, dispose of the surplus of his property, either the consistency of the courts of equity, which to other purposes have considered such surplus as real, or the positive restrictions of the legislature, would be violated, If, therefore, an estate were directed to be sold, and all the debts and legacies generally to be paid out of the produce, it seems clear that this would amount only to that sort of general charge which has been so much above considered; and, though pecuniary legacies generally given by an unattested codicil, would, it should seem, according to the above principles, attach as charges secondarily upon the land, yet the surplus could not eo nomine be disposed of by such unsolemn instrument. Where a testa. But if a testator, by a will duly executed to pass tor shews both lands, directs the whole of his real and personal the real and pere estate to be sold, and out of the produce thereof equally in his sonal estate to be contemplation, as the funds out of which the vocation effectu al as to the per sonalty, but insufficient as to the real for want of being attested according to the statute, will leave ject to the charge. certain legacies to be paid, and then by an unattested codicil in terms revokes his will, which revocation, from the want of solemnity, can only operate upon the previous dispositions of the personal estate, a very nice and curious question may arise, whether the legacies are to be considered as gone by the the land still sub- partial failure of the fund, or as remaining charged on the real estate. In the above cited case of Sheddon v. Goodrich, this was one of the points, and one on which the present Chancellor expressed a painful The distinction degree of difficulty and doubt. stated by his Lordship appears to be in substance as follows: Where a testator, in general terms, subjects his real estate to his general legacies, or charges his legacies generally upon his real and personal property, inasmuch as the primary and direct source from which the legacies are to come, will be the personal estate (2) the land being regarded in equity as only (2) The general rule is clear, that the personal estate is liable in the first instance to the payment of debts. But this general rule supposes, that the engagement upon which the debt arose, was primarily a personal contract; in which case, the personal estate, as having received the benefit, becomes the proper fund out of which the payment should be drawn; so that if money be borrowed, or a debt be any way incurred, and a mortgage made without bond or covenant accompanying it, yet the mortgage makes it no more than a specialty debt in equity, and the land comes only in aid of the personal obligation upon the simple contract. The rule also supposes, that it was originally the personal contract of the testator himself, for if an equity of redemption has descended, secondarily and eventually charged as a collateral security to the personal estate, 'if the principal fund and then the mortgage is transferred, and the heir covenants to pay the money, and dies, still as the mortgage was not originally his, the land, upon the second descent, must bear its own burthen, and notwithstanding such personal contract of the intermediate heir, his personal assets will, upon his decease, be only secondarily liable. The same doctrine holds if the equity of redemption comes by purchase instead of descent. As it was not originally the debt of the purchaser, his heir will not be entitled to be exonerated out of his personal assets; and the order of charge will not be varied, if the purchaser should covenant with the mortgagee, for still it was not primarily his own debt, and his personal contract is considered as being only auxiliary; nor if he covenants with his vendor to save him harmless from the mortgage, for still the purchaser of the equity of redemption is considered as having bought the estate, subject to the charge and with the burthen upon it, to which his covenant has relation as to its principal, and indeed he takes upon himself no more by such covenant than would have been without it laid upon him by a court of equity. By the majority of the cases, it would appear, that when the debt was originally the debt of the testator his personal assets will not be exempted, except by declaration plain, or necessary implication, contained in, or arising from the will; and that mere parol or extrinsic evidence cannot be admitted in opposition to the above rule. It is agreed that a testator may, if he please, bequeath his personal estate, as against his heir or devisee, clear of debts, but it is left by the cases somewhat uncertain what mode of expression will suffice for this purpose. However, it is settled, that merely charging the real estate or even creating a term for payment of debts is not an exemp. tion of the personal. Upon the whole the personal estate may be said to be first subject. 2. The estates devised for the payment of debts. 3. The estates descended, and this though the estates devised are subject to a general charge for payment of debts. 4. Real estates specifically devised, subject to and generally charged with the payment of debts, The Reader will find all the authorities on this sub The court cannot see the in tention of the testator with re is afterwards withdrawn, the rule of accessorium se- any It seems that the effect of the statute of frauds is to prevent the court from seeing the intention of spect to his real the testator to dispose of the real estatę (3), if, in truth, he has not done it with the solemnities enjoincuted according ed by the statute; for in Sheddon v. Goodrich, the property, unless he expresses it by a will, exe to the statute. ject in Mr. Coxe's note to Evelyn v. Evelyn, 2 P. Wms, 659, and the note of Mr. Sanders to Galton v. Hancock, 2 Atk. 438, to which may be added the cases of Hamilton v. Worley, 2 Vez. Jun. 62. Woods v. Huntingford, 3 Vez. Jun. 120. Buller v. Buller, 5 Vez. Jun. 517. Waring v. Ward, 5 Vez. Jun. 670. 7 Vez. Jun. 332. (3) Thus in Buckeridge v. Ingram, 2 Vez. Jun. 652. the Mas ter of the Rolls (the late Lord Alvanley) observed, " that he could not read the will without the word real,' in it; but he could say, codicil declared an intention to make a new disposition of the real as well as the personal; but as it could only have the effect for want of execution, of revoking the charge of the personal, the land was construed, notwithstanding the contrary intention expressed, to remain onerated, upon the principle of the distinction above attempted to be stated, between the case where legacies are charged upon a mixed fund, and where they are wholly issuable out of the personal in the first place, the real being meant only to come in aid as a supplemental and secondary resource. And this a testator will be construed to mean, unless he plainly expresses or indicates a contrary intention'. In the case, however, of Buckridge v. Ingram, where a testator, by a will duly executed, gave an annuity to his daughter, charged on all his estates, both real and personal, and by codicil not attested, gave his real and personal estate to his mother for life, the personal estate only was held by this new disposition to be discharged from the annuity, or in other words, the annuity was revoked as to the per : Vide Ancaster v. Mayer, 1 Bro. C. R. 454. * 2 Vez. Jun. 652. for the statute enabled him, and he was bound to say, that if a man, by a will unattested, gives both real and personal estate, he never meant to give the real at all." In Sheddon v. Goodrich, Lord Eldon noticed the accuracy with which Lord Alvanley expressed himself as to that point. |