Where a mortgage debt is not the personal debt of a testator, but of a previous owner of the estate by whom it was conveyed to the testator subject to the mortgage, such debt constitutes a primary charge on the land. But the burden of it will not be placed on the land, where the continuance of such charge would be repugnant to some of the provisions of the will or operate to defeat them. Whenever it appears to have been the intention of the testator that a devise of real estate, which is subject to a mortgage made by a third person, shall take effect so that the devisee shall receive and hold the same discharged of such mortgage, equity will require that the property of the testator shall be so marshalled as to carry such intention into effect, and the mortgage debt in such case will be held to form a proper charge upon the personalty. Cumberland v. Codrington, 3 Johns. Ch. 229, 257, 272. Rogers v. Rogers, 1 Paige, 188. Hewes v. Dehon, 3 Gray, 206, 208.
It seems to us that this case comes within the principle last stated, and that the continuance of the charge of the mortgage *494on the house and land devised in trust for the benefit of Mrs. Bishop and her daughter would tend essentially to impair if not entirely to defeat the trust declared in respect thereof in the third clause in the will. If a different construction of the will should prevail, and the mortgage be held to be a charge on the real estate, the cestuis que trust would not receive the benefit or enjoy the quantum of estate which the testator manifestly intended to give them. Mrs. Bishop could not occupy the house or have the use and benefit of it during her natural life, on payment of the taxes only; she would be obliged to pay in addition a large sum annually for interest on the mortgage debt, until the principal should become due; the whole of the property — the bank stock and the house — could not be held and managed as a trust fund for her benefit; if she continued to occupy the house, there would be no net income to pay over to her ; if she paid the principal of the mortgage debt, when it fell due, it would absorb nearly all the personal estate, which was given in trust for her benefit; if the debt was so paid out of the trust fund, it would be impossible to convey and deliver “ said real and personal estate ” to her daughter on the decease of the mother, and a like result would follow, if the mortgage was not paid and a foreclosure of it should take place. Such results would defeat the intent of the testator, which was to give to the cestuis que trust the beneficial use of the entire property devised in trust for their benefit.
This conclusion is fortified by the evidence, which shows that these objects of his bounty had for a long time constituted members of his household, and that he would naturally desire to continue to them the comfort of a home after his decease. These facts may be considered for the purpose of placing those who have occasion to interpret the will in the situation of the testator.
Great stress is placed by the learned counsel for the residuary legatees on the fact, that an express provision is made by the will for the payment of a debt for which the bank stock devised in trust was pledged by the testator in his lifetime, and that no similar provision is inserted for the payment of the mortgage on *495the house. But the cases are very different. The bank stock being pledged as collateral did not stand in the name of the testator, and would not be in his possession at the time of his death. It was, therefore, a matter of wise precaution to insert a special direction to his executor concerning its redemption. No such direction was needful concerning the real estate, the title to which stood in the name of the testator. Besides; if he had intended that bank stock should be used to pay off the mortgage debt, it is reasonable to suppose that he would give such direction, when he was making provision concerning the redemption of it from the pledge to which it was subject.