of the Exor. unadministered, for non constat from the evidence in this cause, but that there are sufficient assets in the hands of the Exor. to pay off both the debts & the specific legacy.
True it is asserted in the bill, which is not on oath and by no means admitted by the answer, the situation of the defendants, (being slaves) and the peculiar nature of the case placed it beyond their power to give a direct denial to the allegations in the bill, they however pray a settlement of the Exors. account in order to ascertain that fact.
I concur in the suggestion made by the counsel for the complainant in his notes that the English courts of Chancery by their decisions throw but little light on this question, and that we must be governed on this case by our own statutary provisions and the great cardinal rule in the construction of the will to wit: the intention of the testator. There is nothing in any clause of the will from which it can be inferred, that it was the intention of the testator, in case the personal property after deducting the legacy to Miss Mary Conn should be insufficient for the payment of the debts, to render the slaves liable, and permit the legacy to Miss Mary Conn to remain undisturbed.
Tis true that where there is a total failure of other personal property, that slaves may be sold for the payment of debts, and when they are emancipated by the will may be hired out to raise assitts to discharge the debts - but even when they are not emancipated by the will the law gives them a preference over other personal property.
A reference to the 5th clause in the will, will shew the great particularity & interest displayed by the testator in the emancipation of his slaves - & the 6th clause merely provides for the payment of the debts after deducting the specific legacy to Miss Mary Conn, the testator clearly presuming that then the