Page:United States Reports, Volume 2.djvu/251

 Serum: Coun or Pauyyhioaioi 24; The defendant tool: poifellion of the lands fo devifed to him; 1796. thisevidences his all'ent to pay the £ 3000, and the intention of ~fv* the tellator that he {hould pay it to his executors, is too plain to bear argument. What rule of law or reafon is there, to pre- vent the executors from recovering it? Suppofe the devife to the defendant had been fubjeét to the payment y hi: 4:5::, in- {tead of a certain fum of money, viz. £3ooo, as in this cafe, the lands would be all`ets at law. The tellator has fubjefted the Tit to the payment of the [3000, and it mult pafs cum onere. E therefore, conlider the [gone, on the qucllcion, as an mquitahle, if not a legal, charge, or as a tru}? or conditiuywhich af— feels and binds the real eltate, devifed to the eldeft fon 7`lvovna: Raglan, and which it was the manifelt intention of the teitaeor he lhould pay at all events. Thoma: could not be conlidered ih this cafe as heir at law in Pcmwlvamk; where, if at that time s perfon died inteliate, leaving divers children, his real eliate de- fcended to all his children equally, the eldeii {on having orily a double portion, or {hare ; and, therefore, the devife may be con- lidered even cr conditim. Cqfc: in Eg.tcnr). Ihlht 27 1. IA!}. 383. 3  325. . _ _ _ The fame ju gment was given by all the then julhces of the Supreme Court, live years ago, between the _/hm: parnh, on n cafe {lated on this vcrypoint; which I deem conclulive. · But the fccond queltion, rel`pe&ing the payment of the mort- gage on the 2l8 acres is new. » It appears to have been the intention of the tellator, that the legacies pccyfc aud pecuniary {hould he paid, as well as that the devife of the real ellate {hould take chin'}; and if praéticable the all`ets ihould bc lb marlhalled, that the teliator’s intention in the whole lhould be carried into execution. The tellator feems to have thought the £ 3000 _would have been fullicient to have difcharged all his debts, and alfo the particular pecuniary legacies; but in this he has been miiiaken. A mortgage is a debt; it arifes on a loan, and there is acovmanr no pay the money: It is a fpccialiy debt. Thoma: Ru/lon is an ha·re:_fb8u: of the whole real eliate, on his pa ment of the { 3000; and if that fum had been more than fdécient to pa _ off all the particular pecuniary lcgaciu, by which I mean tholh given to his widow and children in full of their rypeflive _/harnf it rcal glare, I would be of opinion that the mortgage lhould be paid out of the relidue of that fum, as much as any other debt, and that he lhould not take the eliate with this additional in- cumberance, as it does no where appear in the will, that the tellator meant he {hould take it with this lien upon it. lt is the conllant pra€tice in Chanc, to allow children the fame favor as creditor:. Talbot 275. Ftherefore think, that the jmryic and particular pecuniary lcgacic: bequeathed to the childrant

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