The opinion of the court was delivered by
Lowrie, C. J.There is a very obvious distinction between that class of cases where a devise is charged by the will with legacies, and that where the land is resorted to as a means of paying legacies not reached by the personal estate; and we need the distinction in this case. Land may be contingently liable for the latter purpose, though the testator had no thought of such an event; for the former purpose his will must show that he intended it. In one case, it is a question of charge in the strict sense of the term; in the other, it is a question of contribution among legatees and devisees; and when devisees take land by will, they hold it subject to this contingency, as they do subject to debts.
True, it was decided in Brookhart v. Small, 7 W. & S. 229, that a legacy, made payable out of the estate, did not include the real estate; but that was because it appeared in the will that the personal estate only was meant. Primd facie a general legacy comes out of the residuary estate, real and personal: 12 Harris 22, and the cases there cited.
*293Here the residuary estate is the personal chattels and the land which, after the widow’s death; were given to William. The pecuniary legacies were made payable “.out of his estate,” that is, of course, out of his residuary estate; for clearly, both real and personal estate are so chargeable, when both are given in fact as residue. The devisee took the land subject to he called on to pay the legacies, if the residuary or unbequeathed personal estate should be deficient; and now that it is sold by the sheriff for his debts, the legatees are entitled to come in on the proceeds.
Decree reversed at the costs of the appellee, and the cause is remitted to the District Court, with directions to allow the legatees of William Riley, Sr., to be first paid out of the proceeds of the sheriff’s sale.