The will, after making certain specific bequests and devises, and making a special appropriation "of real and personal property for the payment of debts, proceeds thus, — “ All the negroes not before bequeathed, and what surplus of money may be left after the payment of my debts, I will, give, and bequeath to the children of my brother Harrison Lightfoot, to be equally divided among them, and given off to them when they attain the age of twenty-ono years, or marry.” The will was made in 1842, and, subsequently to its execution the testator acquired other lands. The specific fund appropriated to the payment of the debts is not sufficient ; and the sole' question is, whether the deficiency is to be supplied out of the slaves given to the children of Harrison Lightfoot, or upon the after-acquired land.
This question, then, is governed by the rules of law which obtain as to the marshalling of assets between the legatee and heir, — whether the debts of the estate shall be charged against the legacy to the children of Harrison Lightfoot, or against the real estate descended.
By the law of England, the personal estate is the primary fund for the payment of the debts ; and the simple contract creditor, until the statute 3d and 4th Wm. IY, c. 104, could *357not in any way have subjected the lands descended to the payment of Ms debt. The testator, however, by virtue of the right of control which he possesses over his own property, might, by express direction, or by plain implication; devote his real assets to the payment of his debts instead of his personal property ; and whenever this is done, courts give effect to the intention of the testator. To carry out these principles, courts of equity marshall the assets of estates, consistently with the claims and equities of parties interested in their administration; and acting upon the presumption, whenever debts are chai-geable on land, and the testator gives his personalty either pecuniarily or specifically, that it is a clear indication of his intention, unless the contrary appears from the will, that it is to be given to his legatee instead of being appropriated to these debts, for which another portion of his estate is bound, courts of equity will marshall the assets, so as to throw the debts on the fund out of which the testator intended they should be paid.
This is the whole doctrine of marshalling the assets as between the legatee and heir, and the decisions of the courts of equity in England fully sustain it. Thus, in 1619, in an anonymous case, reported in 2 Chan. Cases, 4, the real estate descended to the heir was made to pay the mortgage; the chancellor said, — ‘ Where the heir is indebted by mortgage made by his father, or by any other means as heir to his ancestor, the personal estate in the hands of the executor shall be employed to pay that debt in ease of the heir ; but if there be not other assets to pay other creditors, or other end of testator on his legacies, the heir shall not turn this charge on the personal estate. In this case, here was sufficient to pay the debt, &c., and the legacy out of the personal estate, and when both can be satisfied, both shall be satisfied; and the contrivance to make the personal estate liable to the legacy towards satisfaction of the mortgage looks like a fraud, and shall not prejudice the legatee, but she shall have recompense against or upon the mortgage, though originally not liable to her.” To the same effect is Culpepper v. Aston, 2 Ch. Cas. 114; Herne v. Meyrick, 1 Pr. Wms. 201; Hanby v. Roberts, Amb. 127; Aldrich v. Cooper, 8 Ves. 396.
In the oases we have cited, the legacies were, it is true, *358pecuniary legacies ; but they were general — that is, no specific fund or money was bequeathed; and the same principle which applies to legacies of this character, also obtains where any portion or all the personal estate is given as a whole, and not as a residuary bequest. The giving in that way is then held as demonstrative of the intention of the testator to exempt the legacy from charges to which the general personal estate is primarily liable. Thus, in Blount v. Hopkins, 7 Sim. 43, where the testator gave to his wife M, all his household goods, plate, linen, china, pictures, farming stock, ready money, personal estate, and effects of every description which he should happen to die possessed of, except certain articles which he bequeathed to another person, and charged his debts on real estate devised to trustees; the personal estate was held to be exonerated from the payment of his debts. Bearing in mind, that the fact of. making provision for the payment of debts out of the real estate does not, of itself, indicate any intention to discharge the personalty (2 Jarm. on Wills, 565, and cases there cited), the case referred to is strongly in point, as it shows that the personalty was exonerated on the ground that it was, in effect, a specific legacy. Here the gift amounts to a bequest of all the slaves the testator had at the time of his death, which he had not bequeathed to others. Viewed in this aspect, the two eases are identical in principle, and the rule which was applied in Blount v. Hopkins, supra, is too well settled upon authority, to be shaken. — Jones v. Bruce, 11 Sim. 221 ; Greene v. Greene, 4 Madd. 148 ; Mitchell v. Mitchell, 5 ib. 69 Driver v. Ferrand, 1 Russ. & M. 681 ; Fontaine v. Tyler, 9 Price, 37 ; Bethune v. Kennedy, 1 My. & Cr. 114; Stephenson v. Dawson, 3 Beav. 342 ; Queen’s College v. Sutton, 12 Sim. 521 ; Everett v. Lane, 2 Ired. Eq. 548 ; 2 Jar. on Wills, 580-589. The cases, as wo have already said, regard the gift of all the property which the testator possesses of a specified kind, when not given as a residuary bequest, as a specific legacy (Bethune v. Kennedy, supra) ; and as being such, it is indicative of his intention that the legatee shall receive it free from all debts which are chargeable on the land.
By the law of this State, although the personalty is, as in England, the primary fund for the payment of debts, yet the *359real estate is bound.for them; and no matter what may be the character of the debt, it with ns binds the lands to the same extent that recognizances and debts by specialty bound the real assets in England ; and consequently, the same rules which, in courts of equity there, regulated the charge of those debts upon the lands descended to the heir, apply here to all classes of debts; and hence the result in the present case would be, to throw the debts upon the undevised real estate which they bound, in exoneration of the legacy to the children of Harrison Lightfoot.
It follows from what we have said, that the decree of the chancellor was erroneous, and the same must be reversed, and the cause remanded, to be proceeded with in conformity with this opinion; the appellee paying the costs of this court.