We are of opinion that the assessor decided rightly that the legacies which the testator directed to be paid by his sons John and Henry were intended to be paid one half by each • and that, in charging the payment upon his real estate, it was intended to charge one half upon the lands devised to each, if sufficient therefor, without regard to the proportion of value of the two devises. The fact that one devise was specific and the other residuary tends to strengthen this inference from the language directing the payment.
*146The charge is upon the land, and not upon the limited interest which Henry took under the will. The land devised to Henry and his wife and children being of more than sufficient value to satisfy one half of the legacies, the other half only was treated as chargeable to John’s interest. The assessor has in no other way included the property devised to Henry in his estimates. The exceptions to his report in this particular must therefore be overruled.
It is contended that, by the charge upon the real estate, the personal property was exempted from liability for payment of the legacies, and therefore that the real estate was properly sold for their payment. If this were so, it would not justify any sale beyond what was necessary for payment of the legacies. All the debts should have been paid from the personal assets ; and if the note had been properly accounted for, those would have been more than sufficient. The greater part of the amount of liability, for which the second sale was authorized, was improperly made up,' even if tjiis position of the defendant is sustained.
But we are of opinion that the charge of the legacies upon the real estate did not, of itself, require the executor to sell land devised to John, while he held personal assets that were embraced in the same residuary bequest to him; much less did it justify him in doing so while retaining those assets in his own hands without accounting for them. A general charge by a testator upon his lands does not change the order in which the assets are to be applied, unless there is something further to indicate his purpose that the personal estate, or some specific portion of his property, shall be exempt from liability for the debt or legacy so charged. It is the direction that Henry should pay, in addition to the charge on the land, that shows the intention that the residue of the estate should be relieved of liability for one half of the legacies. But no such inference arises in regard to the separate portions of the residue bequeathed to John. The charge upon the real estate gives to the legatee a lien for payment of the legacy, and a priority in case that fund should be resorted to. But neither that general charge, nor the direction that John should pay, shows that he or the executor was required to pay from the real estate for the exemption of the personal property given to John himself, and furnishes no justification for the fail *147are of the executor to account for all the personal assets before proceeding to sell the realty.
The defendant insists that Mary M. Titus has no claim, for damages under the first sale, because her father, John Titus, Jr., was living at that time, so that the damages were due to him, and belonged to his estate as personal assets at his death, and did not descend with the realty. This position we think must be sustained. Moore v. Boston, 8 Cush. 274. If any damage resulted from that sale, the execution therefor must be applied for and issue to the administrator of John Titus, Jr. The point was not decided, and was not specially considered in the former judgment.
In this aspect of the case, the exclusion by the master of certain evidence offered to prove additional debts of John Titus, Sen., paid by the executor, to the amount of $150, becomes immaterial.
In determining the value of the interest of Mary M. Titus in the lands sold, which is the measure of her damages, the assessor was obliged to estimate the effect of the incumbrance of a mortgage given by John Titus, Jr., covering all his property, real and personal. The mortgage had been foreclosed. The mortgage debt was less than the value of the whole property, but exceeded the value of all that was not sold by the executor. Of course, the sale defeated the redemption by destroying the value of the right to redeem. The damages for this loss are less than the value of the lands sold, by just so much as would have been required to be paid, beyond the value of that which the mortgagee holds by his foreclosure, in order to have redeemed the whole. The assessor proceeded upon this principle ; and his mode of estimating the damages in this particular was entirely correct. The heirs could not have redeemed any part without paying the entire mortgage debt. It would be unjust, therefore, in this proceeding, to estimate the value of their rights in each separate part by apportioning the mortgage pro rata. The mortgage debt is in fact paid, to the extent of the value of the property upon which the foreclosure has been operative.
The only other question requiring our decision is that in relation to the claim for interest. It is not a case where funds have been used by an executor that ought to have been invested; or *148Income withheld that ought to have been paid over or reinvested. The conduct of the executor was wrongful, but it was waste merely. Mary M. Titus might have brought her suit at any time, if she had chosen to do so. The facts were patent. She is not entitled to impose upon the defendant, as the consequence of her own delay, any penalty beyond simple interest.
Execution is therefore awarded for the use of Mary M. Titus, for the amount reported by the assessor as her damages occasioned by the second sale, with simple interest from the date of the sale, and costs of the suit.