Page:Harvard Law Review Volume 5.djvu/154

138 138 HARVARD LAW REVIEW. cies as it has decided ought to be so applied, and in such order as it has decided that they ought to be applied. 1 It often happens, however, that the court goes beyond the limits just indicated. For example, the testator gives specific and pecuniary legacies, and leaves land to descend to his heir, and leaves debts sufficient to exhaust his entire personal estate ; but if the specialty debts be all thrown upon the land, the personal estate, not specifically bequeathed, will be sufficient to pay the simple contract debts and the pecuniary legacies. In such a case, the court by its decree will direct that in case the specialty creditors exhaust any part of the personal estate, the simple contract creditors first, and then the pecuniary legatees, shall stand in the place of such specialty creditors, and receive payment pro tanto out of the land. 2 The argument, of course, is that the testator must have intended that his legacies should be paid if he left property sufficient to pay them, and that his heir should take only what was left after debts and legacies were paid. The answer is, that legacies are not by law payable out of land any more than debts by simple contract are, unless they are charged upon the land by the testator. It will be admitted that the court cannot make the land liable directly for the payment of legacies, any more than of simple contract debts; and, therefore, it cannot do so indirectly. There seems to be no differ- ence between the case of pecuniary legacies and that of simple contract debts, except in the object which the court seeks to ac- complish, the object being, in the one case, to carry out the inten- tion of the testator, in the other, to do justice to simple contract creditors, both undoubtedly worthy objects, but yet not sufficient to justify the court in violating the law. C. C. Langdell. [To be continued.] 1 Haslewood v. Pope, 3 P. Wms. 322; Arnold v. Chapman, 1 Ves. 108; Daven- hill». Fletcher, 1 Madd. Ch. Pr. (3d ed.), p. 768. 2 Seton on Decrees (1st ed.), pp. 93-4, 96-7; Davenhill v. Fletcher, supra.