Comegys, C. J.,
delivered the following opinion: The controversy between the parties in this case arose out of the will of William Gooch (the husband of the appellant’s testatrix) which is in these words :
“ In the name of God, Amen. I, William Gooch, of Pencador Hundred, New Castle County, and State of Delaware, being of sound and disposing mind and memory, do make and declare this to be my last will and testament, hereby revoking all former wills heretofore made by me.
“ Item 1st. It is my desire and wish that my executor hereafter named shall pay all my just debts and funeral expenses as soon after my decease as possible.
“Item 2d. I give, devise, and bequeath to my beloved wife Tamar all my personal property and three thousand five hundred dollars in cash out of my real estate, as soon as sold by my executor.
“ Item 3d. I devise, give, and bequeath to Dillon Hutchison the sum of five hundred dollars.
“ Item 4th. I devise, give, and bequeath to my brothers, Zebulon H. Gooch and Levi G. Gooch, the balance of my estate to be divided between them, share and share alike.
“It is my desire and wish that my executor hereinafter named shall sell all my real estate at public sale within one year after my decease, and convey to the purchaser or purchasers thereof a good and lawful deed or deeds for the same.
“ I do hereby nominate and appoint my brother, Levi G. Gooch, to be my executor of this my last will and testament.
“ In witness whereof,” etc.
The appellant conceived his testatrix to be entitled under this will to all the personal estate of her husband without any deduction therefrom whatsoever; and the respondents not admitting such claim, the bill which forms part of the record before us was brought to determine that question. The case presented by it having been so conducted on both sides as to require of the chancellor a decision of the matter in controversy, he made it on the 21st day of February last, denying the claim of the complainant in his court. From that decision this appeal was taken, and we have been favored by the chancellor, in the opinion expressed by him in the cause, and now read to us, with the reason or grounds upon which he based his decree. Such reasons are full and lucid • and we proceed to give our views of the law by which this court is to decide whether they are sufficient or notin our judgment.
There are certain well-established and reasonable rules which serve as a sure guide to courts in the decision of such questions as that presented by the record in this case, and which are by no means new, but are so old as to have become venerable landmarks of equity decisions in cases of this nature under wills. They are those for the administration of the estates of all testators, and have so long prevailed as to be entitled to the appellation of maxims. They are as follows :
1st. The personal estate of a testator is the primary fund for the payment of his debts and of such legacies as he may choose to give. 2d. In the payment of legacies those of a specific nature are to be paid before general ones. 3d. The real estate is not liable for the payment of either debts or legacies, unless the testator has unequivocally so declared in his will."
With respect to this rule we may now say, as we shall repeat hereafter, that in this State all the property of a testator is subject to the payment of his debts, but the real is only to be resorted to for that purpose, even in the case of liens upon it, after and not until the personal estate has been exhausted, which still preserves the rule that the personal estate is the primary fund for the payment of a testator’s debts. Of course, we are not to be understood as speaking of liens which the creditor proceeds to enforce.
We did not understand the learned solicitor for Tamar Gooch’s executor to make any contention with the respondents upon this view of the law, but he did insist, and exhibited his usual industry in collecting and citing authorities to sustain his view, that according to the true legal construction of the will of her husband, her executor is entitled to the whole personal estate of the testator, and that, by force of the terms used by him, all his debts, funeral charges, and expenses of administration are thrown upon the proceeds of the sale of the real estate, which is substituted in lieu of the personal for the payment and discharge of them ; and he founds or places his argument or contention upon the express words of the second item of the testator’s will: “ I give, devise, and bequeath to my beloved wife Tamar all my personal property, and three thousand five hundred dollars in cash out of my real estate as soon as sold by my executor.”
If the question presented by the solicitor for the appellant had never been decided, we might possibly take the view of it submitted by him and conclude that the chancellor erred, and that the appellant could claim the whole personalty of the testator, and that such claim should be allowed; but such question has been passed upon and determined over and over again by courts of equity, whose concern it is chiefly to interpret wills; and never in cases having no special features more than this case has, has it been decided otherwise than that the personal estate must first be applied to the payment of debts before resort can be had to the real estate. The very words used in this case, “ all my personal estate,” have, in the numerous instances produced by the learned solicitor for the appellees in his forcible argument in their behalf, undergone the most critical and exhaustive examination that minds of the highest order of legal acumen could give to them, and they have always (where there were no expressions in the will that required a different construction) been held to mean simply, the balance of the personal estate that should be left after the payment of the debts of the testator and other legal charges, such as those of burial and of administration. We are not aware of any cases in contravention of this view, or that would justify us, as a court of review, in departing from the old accustomed pathway of the law. In looking through this whole case, with the will of William Gooch and all its provisions or clauses in our mind, we do not see how we can do otherwise than confirm and establish the chancellor’s decree.
A case in some respects similar to the present (though there were many different circumstances or facts in it) came before this court and was decided at the June term, 1872. It was that of Morris et at. v. Morris’ Executor, iv. Houston 414, involving the construction of Elijah Morris’ will. While the expression in it is not the same exactly as that in Gooch’s will, yet the question was so much the same that the court felt called upon and properly to express its opinion in language involving the very considerations this case requires. His Honor, Judge Wootten, in the judgment of the court then declared, and speaking- the sense of all its members, said the import of the words “ balance of my whole estate, after deducting the aforesaid legacies,” being in question, “ this cannot mean the whole original estate, but it is the residue remaining after the payment of the debts ; that residue is what constitutes a man’s estate; and when we speak of our own or another’s estate, we mean that which remains clear for distribution after the payment of debts. Whatever is necessary for the payment of a deceased man’s debts belongs to his creditors and cannot properly be considered any part of his estate for distribution, and especially when we apply the act of distribution, for no matter how much property he may have in possession, if it is not more than sufficient to pay his debts he has no distributive estate. This is true not only in a common sense view but in legal contemplation.” We not only feel ourselves bound by the words of the court spoken by its organ for that case, but independently we decide that there is nothing in the will of William Gooch that would justify us in reversing the decree of the chancellor, which, to say nothing of its sufficient reasoning, is strictly in accord with the law as we take it to be.
In this case there is no question between legatees; it is simply one between the devisees in effect of the real estate and the legatee of the personal; and we have been unable to find any case, nor has the learned solicitor for the appellant furnished us with any, which decides that the words, all my personal estate, in a will like that before us, have been held to cast the payment of debts, expenses of administration, and legacies upon the realty. Much stress was laid by him upon the fact (which he assumed) that the bequest to the widow was specific, but we do not agree with him that it was specific in any legal sense although it was of all, etc. A legacy is only specific when it designates a particular thing or things by specific description, as my bay mare, my gold watch, my shares of stock in such a bank, or the like; or mentions some place where the thing itself can be found, as my bank notes in a certain drawer ■ or indicates some part of the personal estate consisting of various articles which can be easily distinguished and set apart from the residue, as all my personal property in a certain room, house, hundred, county, etc. Cases of a similar kind will be found referred to in Part II of Redfield on Wills, at page 475; where will also be found authority for the principle that a bequest of all a man’s personal property is not a specific legacy. Where it is of all merely, indicating no locality or more particular specification, it is general, the same as is imported by the words rest and residue, because such word - means what every testatator must be taken to know—the balance after payment of debts, etc.—the law being that the personal estate must first be exhausted before resort can be had for such payment to the realty. Every testator is presumed to know the law with respect to the liability of his estate for his debts, and, consequently, to make disposition of it in accordance with such knowledge. Therefore it is that where a testator even uses such sweeping and apparently conclusive words in disposing of his personalty as all my personal estate, the law still holds that he only meant such portion of it as should be left after taking from it all that it was liable to, either as matter of legal responsibility for debts, funeral expenses, and charges of administration, or on account of some further deduction which the provisions of his will requires—for example, a specific legacy. The authorities are abundant upon this point, and were fully laid before us in the argument in June last: it is unnecessary to .recite them here. And further, there is in our opinion no warrant for the position assumed by the learned solicitor for the appellant that this bequest is specific. We have before given examples of specific legacies ; we now refer to- authorities in like cases of specification. Sayer v. Sayer, 2 Vern. 688 ; Prec. Ch. 392; 8. C., 5 Ves. 150, 156 ; Green v. Symonds, 1 Bro. C. C. 159, in notes; Moore v. Moore, Ibid. 127; Gayre v. Gayre, 2 Vern. 538 ; Shaftsbury v. Shaftsbury, Ibid. 747 ; Laud v. Devaynes, 4 Bro. C. C. 537; Clark v. Butler, 1 Mer. 304. The principle is the severance of the particular property from the great body of the estate and the specific gift of it to the legatee. 1 Roper on Leg. 243. Where there are no such restrictive expressions a legacy of personal estate generally will be general and not specific; and even the circumstance that the real and personal estates are blended together will make no difference, although as to the former the devise must necessarily be specific. Ibid.; 2 Wms, on Exrs. 849.
But, of course, the case is different when a testator exonerates his personal estate from the payment of his debts and casts that burden upon his realty. Whenever that occurs, the primary liability is transferred from the personal and thrown upon the real, and the latter is the source to which the executor must first apply. There is no doubt of that. When the intention of a testator to create a new fund for the payment of his debts appears plain, that fund must first be resorted to if he has so expressed himself. But before that is taken as a fact there must be no doubt left upon the face of the will; it must plainly appear by it that the testator so meant. This is not to be settled by conjecture or mere inference, but is to- be shown by unequivocal language or expressions contained in the paper itself. There must be something the courts will recognize as sufficient for that purpose to justify them in departing from the old established certain rule that the primary fund for payment of debts is a testator’s personal estate. And our system of settlement of estates under which all a man’s property, as well real as personal, is responsible for his debts, does not affect the rule; for the primary liability is still on the latter, and there remains until it is exhausted. In England the real estate was not liable for simple contract debts at all unless made so by a testator ; but here it has always been otherwise, and the law as uniform as it is now. But notwithstanding the difference, the first fund to be taken has always-been the personal, the real being merely auxiliary or secondary.
Now, in looking through the will that forms part of the record before us, we do not find any clause, word, or expression that would allow us to depart (if we were inclined to do so) from the established line of decisions upon questions such as are by that record presented to us. There is certainly nothing said about exempting the personal estate from the payment of - the testator’s debts, nor is any language used that can fairly be construed as favoring the notion of such an intent. There is not even any charge of the real estate with them, though that by itself would mean nothing more than that they should be paid at all events. Nor does the testator direct that, to insure the payment of his debts, his real estate should be turned into money and made part of the personal. If he had gone as far as that even, still the first fund to be taken would be personalty; as, by a well-known rule, the residue of such real estate after such charge upon or with respect to it had been liquidated would descend to the heir or pass to the devisee qua realty, he having the right to redeem it from sale and take it as heir or devisee, according as it may have been undevised or devised.
But, in reality, the will itself negatives the idea that the land of William Cooch was devoted by him as the first fund for the payment of his debts. The language of the first item is that the executor shall pay all the just debts and funeral expenses of the testator as soon after his -decease as possible; and in the second paragraph of the fourth item he expresses his desire and wish that his real estate shall be sold within ayear from the time of his death, thus allowing the executor a full year to find an advantageous period to offer his land for sale. If anything could be wanting to furnish us with assurance that the conclusion we are about to announce is the correct one, these clauses would be sufficient to do it. The testator evidently contemplated that his personal estate should be at once, in the usual course, converted into money to satisfy his creditors, and his land in a reasonable time to raise the money to be paid out of it.
The question is: Did William Cooch by his will intend that his real estate should be resorted to before his personal in the settlement of his estate ? As we do not find in that will any language that requires of us to say that he did, the bequest to his wife being a general and not a specific legacy, and that bequest alone being the source to which we have been referred and must resort for such a conclusion, and the two clauses of the will we have just referred to being, as we think, at variance with the idea of substitution, we are of opinion and decide that the decree of the chancellor in the court below was right and should be affirmed.
Wales, J.:
The general rule is well settled that in the absence of express words or manifest intent of the testator, his personal estate is primarily liable for the payment of his debts. Duke of Ancaster v. Mayer, 1 Bro. C. C. 454; Samwell v. Wake, Ibid. 145 ; Walker v. Jackson, 2 Atk. 625; Tait v. Lord Northwick, 4 Ves. 824. The doctrine is clearly stated by Sir William Grant in Hancox v. Abbey, 11 Ves. 186, as being perfectly established, that in order to exonerate the personal estate there must be either express words or a plain intention. Precise and specific words of exemption are not necessary, but it is sufficient if the intention can be collected from the whole will to give the personal estate exemption from the debts. Mr. Jarman, in his treatise on wills, after a full discussion of the authorities, remarks : “ These cases seem to authorize the proposition that whenever the personal estate is bequeathed in terms as a whole, and not as a residue, and the debts, funeral, and testamentary charges are thrown on the real estate, this constitutes the primary fund for their liquidation.” 2 Jarman 586. This rule and the principles on which it is founded have been fully recognized and accepted by the courts in this country. 1 Story’s Eq. Jur., sec. 572-3; Lupton v. Lupton, 2 Johns. Ch. 623 ; Walker’s Estate, 3 Rawle 229. In England real estate is not liable for the payment of simple contract debts. Here that estate is subject to the demands of all the creditors of the deceased, but not until the personal estate has been exhausted, when it becomes the auxiliary fund for the payment of debts. Hence the doctrine of the English courts of equity has been adopted, that not only must the testator charge his lands with the payment of his debts, but must also show his intention to exempt the personalty. If the personal estate has been specifically bequeathed, and the lands directed to be sold for the payment of debts, the personal is held to be exempted by necessary implication. But the testator is always presumed to act upon the legal doctrine that the personal. estate is the natural and primary fund for the payment of all debts until he shows some other distinct or unequivocal intention. In Lupton v. Lupton, Chancellor Kent states the rule broadly and as not admitting of dispute, that the real .estate is not as of course charged with payment of legacies. It is never charged unless the testator intended it should be, and .that intention must be either expressly declared or fairly and satisfactorily inferred from the language and dispositions of the will. It is not sufficient that debts or legacies are directed to be paid—that alone does not create the charge—but they must be directed to be first or previously paid, or the devise declared to be made after they are paid. Where there is an express bequest of all the testator’s personal estate (with or without an enumeration of particular articles) and the will also contains a charge of debts upon the real estate, these facts have sometimes been held to favor the exemption of the personalty. But the position is nowhere sustained that a specific bequest of the personal estate, without a charge on the lands for the payment of debts, will exonerate the former. Hill on Trustees 352; 1 L. C. in Eq. 918.
Applying these rules of construction to the interpretation of Mr. Gooch’s will, in which are no express words of exemption, resort must be had to the intention of the testator in order to ascertain what was his wish in respect to the payment of his debts. The first item contains the general and usual direction to his executor to pay his debts and funeral expenses. By the second he bequeaths to his wife “ all my personal property and three thousand five hundred dollars in cash out of my real estate as soon as sold by my executor.” By the third he gives to D. Hutchison five hundred dollars. By the fourth he gives to his brothers “ the balance of my estate to be divided between them, share and share alike.” Finally, he empowers his executor to sell his real estate at public sale within one year after his decease. The question is, What does the testator mean by “ the balance of my estate”? Do these words signify what may remain or be left after all the personal property has been given to the wife, and the debts and legacy to Hutchison have been paid out of the proceeds of the sale of the land ? And is the inference plain from the context of the whole will that the intention is to cast the burden of the debts upon the real estate? It would be begging the question to say that the inquiry suggests a doubt, and there is therefore no plain declaration or manifest intent to change the legal order of payment. It cannot be denied that in the expressions and terms of this will there is room for conjecture that the testator may have desired to leave to his wife all his personal property free and discharged from the payment of his debts, but there is no plain declaration or manifest intent to that effect. He neither discharges the personal nor charges the real estate, and he is, in the language of Judge Story, presumed to act upon the legal doctrine that his personal estate is the natural and primary fund for the payment of his debts until some other distinct and unequivocal intention be shown. The object in selling the real estate appears to have been to secure the cash payment of thirty-five hundred dollars to his wife, and the division of “the balance” of the proceeds of such sale between his two brothers. This was the purpose of the conversion of the real estate, and in this respect it differs from the case of Sharpley v. Foxwood’s Ex’s, 4 Harr. 336, where the court held that if there be no direction as to the object of the conversion, and the land is directed to be sold, it is a change, out and out, of the realty. Here there is a special direction to pay the wife thirty-five hundred dollars out of the real fund and to divide the balance between the brothers. There is, then, no fair or satisfactory inference to be drawn from the context that Mr. Gooch intended to exonerate his personal estate. As was said by the master of the rolls in Brydges v. Phillips, 6 Ves. 570, it is only a probable conjecture. There is no certainty, no clear, unambiguous intention to be collected from the whole will, that he meant that. There is no ground upon which to judicially collect a settled intention. The word “ all ” prefixed to “ my personal estate ” is not sufficient to make a specific legacy, which is of a particular and individual character, precisely described and limited as to its nature, value, or the place where it may be found. But admitting the legacy to the wife to be a specific one, the debts must still be paid out of the personalty, unless there is at the same time an express charge on the realty for that purpose, or an evident intention to make the charge. A testator must comply with the rules of construction and the settled principles of law which have been established as well to carry out his intention, where it is consistent with them, as to administer the estates of deceased persons according to a fixed and regular order. Looking at the will alone, and extracting its meaning by intrinsic evidence, there is wanting that clear, unequivocal, and manifest intent which is required to exempt the natural and primary fund, and to throw the burden upon the real estate.
Wootten and Houston, Judges, concurred.