The court delivered their opinions seriatim.
M‘Kean C. J.minutely stated the will and case at large, and then proceeded thus :
In case of an intestacy, the rule of law is clear, that simple contract debts, bonds, mortgages and specialties of every sort, must be paid by the administrators out of the personal estate, this being the natural fund for debts, though the younger children should be thereby left destitute; but where there is a will, the testator can substitute other funds in the place of the personal estate. What .has Job Ruston willed in this particular ? is the question.
The intention of the testator shall 'govern in the construction of a will in all cases, except where the rule of law overrules the intention, and this is reducible to four instances. 1. Where the devise would make a perpetuity. 2. Where it would put the freehold in abeyance. 3. Where chattels are limited as inheritances. And 4. Where a fee is limited on a fee. Sel. Oa. in Cha. 31. And this intention must be collected from the whole of the will, or writing itself. 3 Burr. 1541,1581, 1662. 2 Burr. 771, 1106. 1 Vez. 231, and many other boobs.
What then was the intention of the testator, as expressed in his will ? The value of the real estate devised to the defendant, the quantum of his debts, and the amount of his personal estate at his death, would give considerable light in this matter. These have not been satisfactorily ascertained to us. However, we have been told that the debts, specific and pecuniary legacies, with the charges of administration, will amount to 3849/. 9s. 3and that the personal estate only produced 588/. 13s. 9d. so that if the defendant had paid the 3000/. there would have been a deficiency of 260/. 15s. 6fo?. and nothing left for the residuary legatees.
*61The counsel for the defendant insist that he shall hold the remainder of the real estate unsold, exempt from the payment not only of the legacies, but also of the debts, unless the personal estate and the produce of the lands shall prove insufficient for the discharge of the debts ; because, they say the 3000/. was no legacy to the executors; it was no charge on the lands, for they were all devised to the heirs at law ; it was no condition, there being no remedy in case of failure ; and it was no limitation, there being no devise over.
The defendant took possession of the lands so devised to him. This evidences his assent to pay the 3000/.; and the intention of the testator that he should pay it to the executors, is too plain to hear an argument. What rale of law or reason is there to prevent the executors from recovering it ? Suppose the devise to the defendant had been subject to the payment of his debts, instead of a certain sum of money, viz. 3000/., as in this case, the lands would he assets at law. The testator has subjected the gift to the payment of this sum, and it must pass cum onere.
I therefore consider the 3000/. as an equitable if not a legal charge, or as a trust and condition, which affects and binds the real estate devised to Thomas Buston, the eldest son, and which it was the manifest intention of the testator he should pay at all events. The defendant could not he considered in this case as heir at law in Pennsylvania, where, if at that time a person had died intestate, leaving divers children, his real estate would have descended to all his children equally, the ■ eldest son having only a double portion or share, and therefore the devise may even be considered asa condition. Forrest. 271. 1 Atky. 383. 3 Wms. 325. The same judgment was given by all the then justices of the Supreme Court, above five years ago, between the same parties, on a case stated on this very point, which I deem conclusive.
But the second question, respecting the payment of the mortgage on the 218J acres, is new.
It appears to have been the intention of testator, that the legacies, specific and pecuniary, should he paid, as well as that the devise of the real estate should take effect; and, if practicable, the assets should he so marshalled, that the testator’s intention in the whole should ho carried into execution. The testator seems to have thought the 300/. would have been sufficient to have discharged all his debts, and also the particular pecuniary legacies, (by which I mean those given to his widow and children in full of their respective shares of his real estate,) hut in this he has been mistaken.
A mortgage is a debt; it arises on a loan, and there is usually *62a convenant to pay the money; it is a specialty debt. Thomas Ruston is hmres factus of the whole real estate, on his payment of 30001., and if that sum had béen more than sufficient to pay off all the particular pecuniary legacies, I would be of opinion that the mortgage should be paid out of the residue of that sum, as much as any other debt, and that he should not take the estate with this additional incumbrance. It appears no where in the will that the testator meant the defendant should take the lands with this lien upon them.
It is the constant practice in chancery, to allow to children the same favor as creditors. Forrest. 275. I therefore think that the specific and particular pecuniary legacies, bequeathed to the children, ought not to be brought in ease of the particular lands mortgaged; but it seems to me that the devise of the residuary part of the personal estate should give way to the devise of the real estate subjected to the mortgage, and be applied as far as it will go in discharge of the mortgage. For the devisee of the real estate must take it cum onere, that is, subject to the mortgage, unless the residue of the personal estate will be sufficient to discharge it. Yid. Grilb. Equ. Rep. 72. Forrest, 202. 2 Atky. 280. 1 P. Wms. 694, 730. Prec. Cha. 578.