Curia
ner Savage, Ch. J.Two questions are presented to ft, for their decision :
1. W nether an action at law lies for a legacy charged upon land ?
2. Whether, from the whole will, it was clearly the intention of the testator to discharge his personal estate from the payment of the legacy in question, and charge it upon the realty ?
The first question was not directly raised on the argument, though we were referred to several English cases, which question the plaintiff’s right to a remedy at law. It has been settled, that without a promise to pay a legacy charged upon the realty, an action does not lie; and, that it will lie for any general legacy, even when there has been a promise, the English author!ties.are not uniform. The first case appearing in our own reports, is Beecker v. Beecker, (7 John. Rep. 99.) That was an action for an annuity charged on land devised to the defendant, in which there was an express promise to pay. Kent, Ch. J. reviewed the English cases, and decided in favour of the legatee, on the authority of Atkins v. Hill, (Cowp. 284) Hawkes v. Saunders, (id. 289) and Doe v. Guy, (3 East, 120) and distinguished the case from that of Deeks v. Strutt, (5 T. R. 690.) The next case is Van Orden v. Van Orden, (10 John. 30.) In this case there was no express promise to pay, but the defendants had paid part, the estate left by the testator being suEcient to pay all the debts and legacies. The case was admitted not to be within that of Beecker v. Beecker, but it was precisely within the case of Deeks v. Strutt. The Court considered the payments made by the defendants to the plaintiff as conclusive evidence of an express promise to pay, so as to entitle the plaintiff" to recover. The case of Deeks v. Strutt is, therefore, overruled, and with it all the corresponding class of cases.
In the present case there was no direct evidence of an express promise to pay, but payments have been made from time to time, from which, according to the case last quoted, an *145express promise may be inferred. The plaintiffs in the Court below were, therefore, entitled to recover, unless, from an examination of the will, it appears that the legacy in question was to have been paid out of the personal estate. The rule for marshalling assets towards the payment of debts is correctly laid down by Chancellor Kent, in Livingston v. Newkirk, (3 John. Ch. Rep. 312.) He there says, “It is too well settled to be questioned, that the personal estate is to be first applied to the payment of debts and legacies, and that a mere charge on the land will not exonerate the personal estate, nor any thing short of express words, or a plain intent in the will of the testator.”
In Ancaster v. Mayer, (1 Br. Ch. Cas. 462) Lord Thur-low says, “ Where there is a declaration plain, that shall stand in lieu of express words.'1'1 Again : “ If there be a declaration plain, or manifestation clear, so that it is apparent upon the face of the will that there is such a plain intention, the rule then is, not to disappoint, but to carry such intent into execution.” What, then, was the intention of the testator ?
1. He first directs his debts to be paid out of his personal estate.
2. He gives his wife, Lucretia, all his personal estate, after payment of his debts, and a legacy tp one of his daughters, and goes on to make other provision for his wife upon his homestead farm.
3. After his wife’s death, what remains of the personal property is to be divided equally among his children-
4. The following clause : “I also will, devise and bequeath, to my son, Nathaniel Kelsey, all my real estate, to him and his heirs forever, excepting such rights and privileges as have heretofore or shall hereafter be granted by me respecting the premises : and my will and desire is, and I do hereby order and direct, that my son, Nathaniel Kelsey, or his heirs, pay the following legacies :” Then follow the legacies, of £100 each, to his three daughters, one of whom, (Jul ia) was a plaintiff in this cause below. He adds, “ One half of each of the above legacies to be paid within two years after *146my decease, and the other half to be paid in two years after flje decease of my wife, without interest.” He next directs a certain sum, if to be paid at all, after the death of Daniel Kelsey, to be paid out of the real estate ; and makes his wife executrix, and Nathaniel Kelsey and his son-in-law, Moses Woolsey, his executors. Did the testator intend that these legacies should be paid from his personal estate ? or was it his intention that Nathaniel Kelsey should pay to each of his sisters £t00, as their right in the farm which was devised to him ? It is to be observed, that the personal estate was all given to the widow during her life. She might have lived 20 years ; and yet one half the legacies was to be paid in two years after the testator’s death. Out of what fund ? The personal property ? That was in the hands of the widow. What other fund had Nathaniel l The farm. Again; by whom were these legacies to be paid ? By the executors ? No: by Nathaniel Kelsey—not as executor. If the legacies were to be paid out of the personalty, we must suppose that the testator, in his last moments, was mocking his wife with the appearance of making provision for her, by giving her all his personal property, when, in fact, he intended to give her none of it. It has been well remarked by Lord Thurlow, I think, that such a construction should be given to wills as will make the testator’s intentions honest. Would it Ije honest for a husband thus to deceive his wife ? Again : one legacy is given to the wife of one of the executors, Why is the legacy to be paid by N. Kelsey? If the legacy were good, and to be paid out of the personal estate, the husband of Abigail Woolsey might retain the money in his own hands, as executor, to pay his wife’s legacy. The only part of the will calculated to create any doubt is the last clause ; and even that may admit of a construction, that all the payments by Nathaniel Kelsey are to be made out of the real estate. But admitting it to apply to the sum contingently spoken of, it is not sufficient, in my judgment, to change the whole complexion of the will.
I am, therefore, of opinion, that the legacy to the plaintiff, Julia, was a charge on the real estate devised to the plaintiff in error ; and that, by paying part, he gave conclusive evi*147tience of a promise to pay the whole; and, consequently, that the judgment of the Common Pleas should be affirmed.
Judgment affirmed.