Page:Federal Reporter, 1st Series, Volume 10.djvu/51

 PTJLLIAM V. PULLIAM, 39 �property, real and personal, in exoneration of the legacies given to the plaintiff; and the defendants concede that as to any pl-operty remaining after the payment of the debts owed by the testator at his death, the plaintif? can be eubrogated to the rights of creditera who have been paid with her money, and may now subject such other property to the payment of her legacies. Alexander v. Miller, 1 Heisk. 65. And they say this is all the equity she has under this will. She claims it was the duty of the execvtor to execute this will by selling the lands to raise a fund to pay the debts, and, not having done se, he has committed a fraudaient breach of trust, and is now liable to her absolutely for the value of her legacies, and she asks for a Personal decree against him to satisfy her claim, and this without reference to the value of the lands. The executor insists that the will does not give him any power to sell the real estate in Tennessee or Arkansas, either expressly or impliedly, and that he had only the ordinary remedy of an executor to sell lands where the estate is in- solvent or the personal assets insufficient under our act of 1827. Tenn. Code, 2267, 2326, 2362.' In Alexander v. Miller, 7 Heisk. 65, 77, the supreme court of Tennessee holds that where there is no power or authority conferred by the will to sell real estate the executor can sell uo portion of it, nor apply it to the payment of debts ; and, while the general rule is that the personal estate is primarily liable to the payment of debts, if it is exonerated by the express terms of the will, or by implication, a different rule applies. The policy of the law is to give effect to all the prcivisions of the will — those in favor of leg- atees as well as those in favor of devisees; and where the real estate is charged with neither debts nor legacies by the will, but descends to the heir at law, a court of equity will marshal the assets in favor of specifie legacies of personalty and substitute the legatee in place of the crediter. But it is plain from this case that where the will, by express terms or impliedly, confers power on the executor to sell the lands for the exoneration of the legatees, it is not necessary to resort to this equity of subrogation, for in such case the executor may do, under the powers of the will, what otherwise could only be done by a resort to this equity of subrogation. In Diinn v. Keeling, 2 Dev. L. 283, it was held that the words "after all my just debts are dis- charged," attached to a devise of real estate, do not oonfer a power on the executor to sell. But this will goes further than that, and does not depend for the implication of a power to sell upon such barren words as those above quoted. The words here are : "Every- thing I have named and given to my wife she is to have and do as ��� �