or mention of realty would certainly be a new feature; though, considering the strong tendency of the recent cases in favor of such charges, it seems unlikely that any distinction of this nature will be established. So long ago as Shallcross v. Finden (c) we have a dictum of Sir R. P. Arden which seems to bear upon the point under consideration: "I am very clearly of opinion," said this able judge, "that whenever a testator says that his debts shall be paid, that will ride over every disposition, either against his heir-at-law or devisee." The rule, however, seems to be subject to two material exceptions. First, where the testator, after generally directing his debts to be paid, has provided a specific fund for the pur- the general pose. Exceptions to rule. Where testator has approspecific fund priated a to pay the debts, &c. Thus, in Thomas v. Britnell, (d) where the testator first ordered all his debts to be honorably paid immediately after his decease; and in a subsequent part of his will devised certain hereditaments, excepting H. and R., to trustees, upon trust out of the money arising by the sale to pay and discharge his debts, funeral expenses and all legacies given by that will or any other writing under his hand. He afterwards directed that H. and R. should be in the first place for payment of the legacies mentioned in his will. Sir J. Strange, M. were not subject to the payment of debts. he said, the court might take the whole real debts, yet as there was no express lien on the real by these general words, and afterwards the testator appropriated certain part of his real for debts (and legacies,) and other part for legacies, it was too much to lay hold of the general words to say *that the whole should be charged with payment of debts. It could be done only by implication on the general words, which might be explained afterwards, and that implication destroyed. R., held that H. and R. Though on the first part, estate to be charged with So, in Palmer v. Graves, (e) where the testator commenced his will The doctrine must be applied to the property as it turned out to be" Rodman, J., in Little v. Hager, 67 N. C. 135, 139. See to same effect, Mitchener v. Atkinson, 63 N. C. 585; Ex parte Crocker, Id. 652. It was held in the case of Bank, &c., v. Beverly, 1 How. (U. S.) 134, that a disposition of the personal property for other purpose than the payment of debts with the assent of creditors, was in itself a (e) 1 Kee. 545. [See also Douce v. Lady Torrington, 2 My. & K. 600, ante p. *589; Legh v. Earl of Warrington, 1 B. P. C. Toml. 511, cit. 2 Ves. 272, and Belt's Suppl. 361. with the following words: "In the first place I direct my just debts, funeral expenses and the charges of proving this my will to be duly paid;" and then proceeded to dispose specifically of certain freehold and leasehold property. The testator gave to his son A, his heirs, executors, administrators and assigns, all the residue of his real and personal estate, with the rents and profits of his freehold and leasehold hereditaments up to the quarter day next ensuing after his decease, which rents and profits he charged with the payment of his debts, funeral expenses, and the charges of proving his will; and the testator appointed A executor. Lord Langdale, M. R., held that the real estate was not charged by the introductory words, as the general charge by implication was controlled by the specific charge in the subsequent part of the will. [And in Corser v. Cartwright, (f) where a testator first devised all his debts, funeral and testamentary expenses to be paid as soon as conveniently might be; then made numerous bequests and specific devises; and as to certain freehold estates therein mentioned, including the B estate, and all the residue of his real and personal estate, subject to and chargeable with his just debts, funeral and testamentary expenses and legacies, he devised the same to J., and appointed J. and S. his executors; it was held by James and Mellish, L.JJ., that the implied charge was inconsistent with and must give way to the specific charge, according to the maxim expressum facit cessare tacitum, and consequently that J., the devisee of the specifically charged estates and one of the executors was the proper person to raise money to pay the debts, and not the two executors under the implied charge.] However; it is clear that a charge created by general introductory words is not controlled by a subsequent passage furnishing conjecture only of a contrary intention, and not actually inconsistent with such charge. As where (g) a testator, *after willing all his just debts, funeral expenses and the charges of proving his will to be paid, devised real estate, and gave some legacies, and then proceeded to bequeath all the residue of his personal estate, after and subject to the payment of all his just debts, funeral and testamentary expenses and the legacies thereinbefore bequeathed. Lord Lyndhurst, C., held that the latter words were not incon Not affected by express charge on residuary personal estate, f) L. R., 8 Ch. 971. Affirmed in D. P. on independent grounds, L. R., 7 H. L. 731. Note that Lord Cairns there (740) says the estates not specifically charged were devised apparently in strict settlement.] (g) Price v. North, 1 Phil. 85, [reversing 4 Y. & C. 509. "The direction as to sistent with an intention to charge the real estate as an auxiliary fund; observing, that courts of equity had always been desirous of sustaining such charges for the benefit of creditors; and the presumption in favor of them was not to be repelled by anything short of a clear and manifest evidence of a contrary intention. -nor by charge of speeither on par cific sums ticular lands, the real Whether express particular charge controls pre vious general And Sir L. Shadwell, V. C., came to a similar conclusion on a special and very inaccurately framed will in Graves v. Graves. (h) [Again, in Taylor v. Taylor, (i) Sir L. Shadwell decided that a direction that all the testator's just debts and funeral expenses should be fully paid and satisfied, was not cut down by a subsequent charge of specific sums on particular estates. And in Foster v. Thompson, (k) it was held that no such result followed from a subsequent charge of a specific debt on a specified estate which appeared in fact to be the or on all testator's only real estate. And in Jones v. Williams, () where a testator began by directing his debts, funeral and testamentary expenses to be paid, and provided that in aid thereof the purchase money of an estate which he had lately sold and a debt due to him from A should be applied for that purpose; and he vised his property called T. to his wife and her heirs, in trust to sell and apply the proceeds in further aid and discharge of his debts, and then specifically devised other lands and personalty to his wife and daughter, and directed certain articles to be kept as heir-looms; Sir J. K. Bruce said that, without intimating either assent or dissent as to the cases of Douce v. Lady Torrington and Palmer v. Graves, he was of opinion upon that will that there was at the commencement of it, plainly expressed, an intention to charge all the property with all the debts, and that the following parts of the will did not contain any sufficient indication of a contrary intention; and therefore that, whatever might be the order of *precedence in which the testator considered the property chargeable, all the property was charged. The point, however, was not open to his decision.] And here, it should be observed, that the doctrine of the preceding the personal estate, which is by law liable to those burdens, is mere redundancy, affording no inference of any definite purpose:" Per Plumer, V. C., Noel v. Weston, 2 Ves. & B. 272.] (h) 8 Sim. 43. de charge dewhole tenor pends on the of will. [(i) 6 Sim. 246. See also Clifford v. Lewis, 6 Mad. 33, ante p. *587. (1) 4 D. & War. 303; see also Cross v. Kennington, 9 Beav. 150; Dormay v. Borradaile, 10 Beav. 263. () 1 Coll. 156, 8 Jur. 373.] First exception inapplicable to express charge. exception extends only to charges on real estate created by general and ambiguous expressions; for, of course, a clear and explicit charge on real estate is not liable to be controlled by an express appropriation of particular lands to the purpose, (m) or a qualified charge of the real estate in the same will. (n) Second exception, where the payment The second exception to the general rule under discussion occurs where the debts are directed to be paid by executors, in which case, unless land be devised to them, it will be presumed that payment is to be made exclusively out of funds which, by law, devolve to the executors in their representative character. 8 is to be made by the executors. Thus, in Brydges v. Landen, (o) where the testator commenced his will as follows:-" Imprimis, that all my debts and funeral charges and expenses be, in the first place, paid by my executrix hereinafter named: then as to my real and personal estate, I dispose of as follows;" and, after making such disposition, he charged and made liable all his real and personal estate with two sums of £150 to each of his daughters. All the cases were considered by Lord Thurlow, who was clearly of opinion that the real estate was not charged. It is remarkable that this decision did not in some degree abate the confidence with which Sir R. P. Arden and Lord Loughborough, the former in Kightley v. Kightley (p) and Shallcross v. Finden, (q) and the latter in Williams v. Chitty, (r) insisted that a general direction that debts should be paid charged the real estate, inasmuch as it seems (m) Ellison v. Airey, 2 Ves. 568; Coxe v. Bassett, 3 Ves. 155; [Noel v. Weston, 2 Ves. & B. 269; Wrigley v. Sykes, 21 Beav. 337.] (n) Crallan v. Oulton, 3 Beav. 1. 8. "If the testator directs a particular person to pay, he is presumed in the absence of all other circumstances, to intend him to pay out of the funds with which he is intrusted, and not out of the funds over which he has no control. If the executor is pointed out as the person to pay, that excludes the presumption that other persons, not named, are required to pay. The distinction seems very nice; but it is intelligible in theory, however difficult it may be in its application to particular cases", 2 Story's Eq. Jur., 1247. Mitchener v. Atkinson, 63 N. C. 585. A direction that executors pay debts followed by certain legacies and then a devise of real property to A "and also all my personal estate after paying the legacies in my will mentioned" does not charge the legacies on the land devised, Gilder v. Gilder, 1 Del. Ch. 331. (0) [3 Russ. 346, n.,] cited 3 Ves. 550, [where it is said that the circumstance that the debts were to be paid by the executrix was considered very important.] (p) Ante p. *587. (q) Ibid. (r) Ibid. to have been decided by Lord Thurlow without allusion to the circumstance that the direction to pay was to the executors. The case was afterwards followed, however (but with the same apparent disregard of this peculiarity), by Sir R. P. Arden himself. Direction to executors to pay debts held Thus, in Keeling v. Brown, (8) the words were, "Imprimis, I will and direct that all my just debts and funeral expenses be paid and discharged as soon as conveniently may be after my *decease by my executrix and executors hereinafter named. Item, I give devise and bequeath unto J. all that my messuage," &c.; and, after other devises, and giving his wife an estate for life in part of the real estate, the testator appointed his wife and two other persons (who took no interest in the real estate) executrix and executors. Sir R. P. Arden, M. R., said he could not, with all the disposition he always felt to give such a construction to wills as should make testators honest, construe this into a charge upon the real estate; it would be a violence to all language, and making a will for the testator. not to charge real estate. Again, in Powell v. Robins, (t) where a testator first devised that all his just debts and funeral expenses might be satisfied and paid by his executors therein named as soon after his decease as might be, and then gave certain leasehold premises to his wife, and afterwards devised a freehold estate to his son D., and appointed W. and G. executors. Sir W. Grant, M. R., upon the authority of Brydges v. Landen, (u) Williams v. Chitty, (x) and Keeling v. Brown, (y) held that this estate was not charged, inasmuch as no real estate passed to the executors who were directed to pay. Again, in Willan v. Lancaster, (2) where a testator directed that his debts should be paid by his executors, and "then" devised his lands, it was contended that the word "then" was equivalent to after payment of the debts; (a) but Sir J. S. Copley, M. R., held that it was merely (8) 5 Ves. 359. (t) 7 Ves. 209. (u) Ante p. *594. (1) Ante p. *587. But this was a determination the other way, the direction being general, and not expressly to the executors. Lord Loughborough's arguments at the hearing, indeed, pointed to the conclusion that it was not a charge; but he afterwards decided the contrary, upon the authorities. (y) Ante p. *594. (z) At the Rolls, 14th Nov., 1826, MS., 3 Russ. 108. See also Braithwaite v. Britain, 1 Kee. 206; (but where it is observable that the direction to the executors to pay the debts, on which Lord Langdale relied in his judgment, does not occur in the will, as reported:) [and Wisden v. Wisden, 2 Sm. & Gif. 396.] (a) As to this expression, see ante p. *587, and vol. I., p. *820. The argument |