27 Ala. 351 | Ala. | 1855
The will, after making certain specific bequests and devises, and making a special appropriation "of real and personal property for the payment of debts, proceeds thus, — “ All the negroes not before bequeathed, and what surplus of money may be left after the payment of my debts, I will, give, and bequeath to the children of my brother Harrison Lightfoot, to be equally divided among them, and given off to them when they attain the age of twenty-ono years, or marry.” The will was made in 1842, and, subsequently to its execution the testator acquired other lands. The specific fund appropriated to the payment of the debts is not sufficient ; and the sole' question is, whether the deficiency is to be supplied out of the slaves given to the children of Harrison Lightfoot, or upon the after-acquired land.
This question, then, is governed by the rules of law which obtain as to the marshalling of assets between the legatee and heir, — whether the debts of the estate shall be charged against the legacy to the children of Harrison Lightfoot, or against the real estate descended.
By the law of England, the personal estate is the primary fund for the payment of the debts ; and the simple contract creditor, until the statute 3d and 4th Wm. IY, c. 104, could
This is the whole doctrine of marshalling the assets as between the legatee and heir, and the decisions of the courts of equity in England fully sustain it. Thus, in 1619, in an anonymous case, reported in 2 Chan. Cases, 4, the real estate descended to the heir was made to pay the mortgage; the chancellor said, — ‘ Where the heir is indebted by mortgage made by his father, or by any other means as heir to his ancestor, the personal estate in the hands of the executor shall be employed to pay that debt in ease of the heir ; but if there be not other assets to pay other creditors, or other end of testator on his legacies, the heir shall not turn this charge on the personal estate. In this case, here was sufficient to pay the debt, &c., and the legacy out of the personal estate, and when both can be satisfied, both shall be satisfied; and the contrivance to make the personal estate liable to the legacy towards satisfaction of the mortgage looks like a fraud, and shall not prejudice the legatee, but she shall have recompense against or upon the mortgage, though originally not liable to her.” To the same effect is Culpepper v. Aston, 2 Ch. Cas. 114; Herne v. Meyrick, 1 Pr. Wms. 201; Hanby v. Roberts, Amb. 127; Aldrich v. Cooper, 8 Ves. 396.
In the oases we have cited, the legacies were, it is true,
By the law of this State, although the personalty is, as in England, the primary fund for the payment of debts, yet the
It follows from what we have said, that the decree of the chancellor was erroneous, and the same must be reversed, and the cause remanded, to be proceeded with in conformity with this opinion; the appellee paying the costs of this court.