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But where the
But where the charges, as , his debts upon his whole estate , real and , the remains
Latest revision as of 20:23, 13 January 2020
But where the testator charges, as Willson does, his debts upon his whole Estate, real and personal, the personal still remains the primary fund and the ordinary order of administration must be observed. The whole personal property must be exhausted, specific bequests and all before recourse can be had to the realty. See Powell on 'Devises 2nd vol old eddition page 680, new edition 364. “The next branch of our inquiry is as to what will exempt the personal estate from its primary liability to debts and other charges, for which the testator has provided another fund, a question which it will be seen has been a prolific subject of litigation. That the making a provision for debts or legacies out of the real estate does not discharge the personalty is implied in the very terms of this inquiry. There must be an intention not only to onerate the realty, but to exonerate the personalty; not merely to supply another fund, but to substitute that fund for the property antecedently liable. Thus in numerous cases it has been held that neither a charge of debts on the testator’s lands generally, or a specific portion of them, nor a devise upon trust for sale, however formally or anxiously framed, nor a term created for the purpose, will discharge the personalty.” Again see Williams an Exors. vol. 2nd page 1047. “ with respect to the exoneration of the real estate from legacies, the general rule is equally clear as it is with respect to debts that the personal estate is the natural fund for the payment of them and the real estate is only to be resorted in aid of the personal: Therefore even in cases where there is no doubt as to debts and legacies being effectually charged by the testator in the real estate, yet the personal estate remains undischarged from its primary liability to those claims.” It is manifest the exor. was right in selling Jarrel before resorting to the land. There are other specific legatees besides Jarrel - those to whom certain
[slaves?] are given after the wife’s death. Had they too the right to require the sale of the land to save their legacies? The court will observe the consequences of the actions contended for by the plaintiffs’ counsel. Under the Act of Assembly of March 17th 1842 all debts evidenced by writing are declared to be chargeable on land. Now is it to be presumed that this law reverses the relation of real and personal property in the administration of the assets of an estate? That it makes land the primary fund out of which debts shall be paid so as to protect in case of deficiency of personal assets not specifically bequeathed, the specific legatee? It is impossible that this can be the construction to be placed on the Act, and if it be not the construction, then no such effect as is contended for could be given to a general charge in a will prior to the passage of the law. Chaffin (defdt.) has at this Term of the Court (Oct. 1845) filed his answer asking relief against the Exor. in the event of a decree in the plaintiffs favour. He is entitled to no such relief - certainly to none thro. the medium of this cause. He knew that he was buying the slave under the will of Willson or from the Exor. acting under his will. It was his duty to examine the will and judge for himself as to the right of Jarrel to his freedom. He does not charge that he the Exor. warranted the title to the negro or that he made any false representations about him. The Exor. practised no fraud. Chaffin has held him (if free) in his own wrong and this court will not relieve him from the consequences of his own wrong. Moreover the bills and profits of the plaintiff during the time he has held him have nearly if not quite repaid him the purchase money. If then Chaffin shall be considered as entitled to recourse against the Exor.