—
I concur in affirming the decree of the chancellor, because, the language employed in the will, when construed with respect to the existing law of the land, creates no trust which, under the circumstances of this case, the court of ehaucery has jurisdiction to enforce.
I do not propose to enter into a discussion in support of the views I entertain, which do not accord with some of the conclusions attained in the opinion of the Chief Justice ; but will content myself by briefly stating them, so that my position may not be misunderstood, should similar questions again come before the court.
By the statute law of this State, “lands stand chargable with all the debts of the deceased, over and above what the personal estate shall be sufficient to pay,” (Digest, 191, § 1,) and the mode is pointed out how a sale is to be effected, in cases where the will does not authorize a sale by the executor. Ib. 224, <§> 16, et seq. He may rent the real estate until final settlement. Ib. 199, <§> 36. And unless the executor or administrator apply for leave to sell the real estate within three months after the estate is declared insolvent, he is guilty of a devastavit. Ib. 198, § 27. County courts may, when the estate would be less injured by a sale of land than of slaves, order the former to be sold. Ib. 195, § 18. In the granting of letters testamentary or of administration, the judge of the orphans’ court is required to take the land into the estimated value of the estate, and to require bond in double the value of the whole estate. Digest, 229, § 44. These various enactments, with others which might be referred to, show the design of the legislature in vesting in the *638orphans’ court plenary powers for the subjecting of real estate to the payment of the debts of the deceased, and that it is the policy of our law to subject the estate, both real and personal, of decedents, to the payment of his debts, in the most summary, expeditious, and Least expensive mode which could well be adopted.
At the common law, real estate of deceased persons was not liable to the payment of their simple contract debts, unless such estate was charged by will, and as this provision sometimes operated very harshly, the chancery courts of England, as was said to prevent men’s sinning in their graves, very eagerly sought and seized upon any expression in a will, in cases where the personal estate was insufficient for the payment of the debts, from which to educe the conclusion, that the testator intended to charge his land with the payment of his debts. Hence these courts, from an early period, endeavored to give effect to a general direction by a testator for the payment of all his debts, by construing it into a trust for their discharge out of his real estate. 1 Roper on Leg. 573; 6 Cruis. Dig. Tit. 31; ch. 16, § 7. Thus commenced a series of judicial decisions which has been continued down to the present time, settling and establishing beyond controversy the English doctrine to be, that a general introductory, or prefatory direction by a testator for the payment of debts, followed by a disposition of his estate both real and personal, will, if necessary amount to a trust for the payment of his debts out of the real estate. Troth v. Vernon, Prec. Ch. 430; 2 Vern. 690; Ib. 709; 1 Bro. C. C. 273; 3 Ib. 157; 2 Ves. Jr. 328; 3 Ib. 545; 2 M. & Cr. 695.
But it is said, in such cases the trust is raised by implication only, as being necessarily intended by the testator, and that it may be rebutted if other parts of the will are inconsistent with an intention on the part of the testator to create such a trust. Palmer v. Graves, 1 Keen, 550; Price v. North, Phill. 86; Hill on Trustees, 345. Now the reason, which in my opinion lies at the foundation of this series of English authorities, does not apply .in this State, where, as I have shown, such ample provision is made by law for charging the real estate with the payment of all the debts of the *639testator, both those which are simple contract debts, and those which are not. It is true, the same doctrine is held by the courts of England, since the statute of 3 and 4 Will. IV., c. 104, which makes freehold and copyhold estates assets for the payment of simple contract debts, &c., but it will be observed, that this statute is confined to those estates which the decedent “shall not by his last will have charged with, or devised subject to the payment of his debts." 12 Sim. 274. Also, Bell v. Harris, 4 M. & Cr. 369. The case of Darrington, et al. v. Borland, 3 Por. Rep. 9, favors the English doctrine, and it is there held, that a will containing these words, “I will that all my just debts should be paid previous to any distribution of my estate,” &c., and by a subsequent clause bequeaths all his estate to be equally divided between six devisees, created a trust on behalf of creditors which a court of equity would enforce, notwithstanding the personal estate which had been wasted, was sufficient to have paid the debts. This decision, so far as it respects the construction given by it to the act of 1806, subjecting lands to the payment of debts, no matter how devised, was sanctioned by this court in The Heirs and Adm’r of Hitchcock v. The U. S. Bank of Pen’a, 7 Ala. R. 441, and thus far, it meets my approbation. But that a specific lien upon the land was created by virtue of the will, or that a trust was created by the will which a court of equity will enforce, irrespective of the personal estate made by law primarily liable, does not accord with my view of the law. Why is it that all the courts agree that in the construction of wills the intention of the testator is to be* the true guide, and yet that intention is so often thwarted,, by raising implied trusts, which were evidently never contemplated by the testator ? Now in respect to the terms, “rents and profits,” these words are often, by a strained, technical, artificial construction, -«extended quite beyond any meaning which the testator intended them to have, and to raise a sum by “rents and profits,” is held the same as raising it by sale. 1 Ch. Cases, 173; 3 Ib. 205; 1 P. Wms.. 415; 1 Atk. Rep. 505; 6 Johns. Ch. Rep. 70; 1 Ves. 41. And yet Lord Hardwick observed, that there was not one-case in ten where the court had decreed a sale on the words rents and profits, that it had been agreeable to the testator’s *640intention. I do not wish to be understood as holding that there may not becases where, it being impossible to carry out the intention of the testator, the court may effect as near as may be, the end, by a resort to other means than those contemplated in the will; but the principle for which I contend,, and which applies to this case is, that the court of chancery should never imply a trust in the absence of all necessity,- and merely for the purpose of attaching jurisdiction. 2 Story’s Eq. § 1195. This would be the effect of such implication in the present case. The personal estate is amply sufficient for the payment of the debts — this estate is made by the law first liable to their satisfaction, unless the orphans’ court shall deem it more for the benefit of the estate to sell the lands. The mode pointed out by the statutes for the appropriation of the estate to the payment of the debts is plain and expeditious. Now is it reasonable to conclude from the general expressions used in this will in regard to the payment of debts, that the testator intended to' withdraw his real estate without the pale of the law, and the guards which are by law thrown around it ? That he intended to waive for his estate the statutes of limitation and of non-claim, (for in my opinion, if a trust is created, such as the will assumes, both are waived,) and to make his executor1 a special trustee ? Does it not better accord with the established rules of interpretation, which require that the intention of the testator, to be gathered from the whole will, should be carried out, to conclude, that these general expressions relied upon by the plaintiff in error to raise a trust,were but recognitions of the law as it existed, and to the requisitions of which, as it respects the charging of lands for the payment of debts on failure of personal assets', the will must give place, regardless of its provisions ? But I am departing from my design, which was merely to state my conclusions. In my opinion, it is competent for a testator to1 charge his real estate with the payment of debts by express' provisions in his will, and that a court of chancery will enforce the lien thus created, if it can be done without a violation of the law, in behalf of creditors. That in the en*641forcement of such trusts in equity, neither the statute of limitations, which had not perfected a bar when the trust attached, nor the statute of non-claim, can be available as a defence to the trustee j and that although, in a proper case, a trust may be raised by implication, still this should never be done- in the absence of all necessity, and in eases where-the law more effectually carries out the object to be accomplished.
I confess, that upon the argument of this cause, my mind was strongly inclined to yield to the weight of the English authorities, which have been followed in many of the States,, but upon more thorough investigation, I am satisfied they are opposed to the spirit and policy of our statutes, and the proper and expeditious administration of estates, and that the-reason which in my judgment lies at their source no longer exists*