dissented. He remarked as follows. There are certain well known principles applicable to cases of this character, which cannot be mistaken, and will not be disputed. 1. if there be no controuling direction in a will, personal property shall be expended in the payment of debts and legacies, before real estate can be taken. 2. If personal estate be specifically bequeathed, and real estate be devised generally, or has descended to the heir at law as intestate estate, such real estate shall be taken for the payment of debts, to the relief of the specific legacies. 3. If both personal and real estate be specifically devised, the personal estate shall be first exhausted.
By a specific legacy or devise, it is not meant merely, that the property given is particularly described; but also, that the testator intended to separate it from the mass of his estate, for the benefit of the legatee or devisee.
The bank stock, bequeathed, by this will, to Miss Brainerd, the appellant, as we have heretofore decided, was a specific legacy. Ante, 1. 6, 7. And the question now is, whether the executor of Mr. Champion has a right to appropriate this legacy to the payment of the debts, before he resorts to the real estate, which, by a subsequent provision of the will, is devised to Mrs. Cowdrey and her son?
It is very evident, that the testator intended that his debts should be paid from the avails of his cotton goods, if they proved sufficient for that purpose. But he foresaw the possibility that this fund would fail.
After having, in the first place, given directions for the payment of his debts, he goes on to make a disposition of certain articles of personal estate. Then, by a codicil, dated July 3d, 1841, he gives to Miss Brainerd the bank stock in question, in payment and discharge of his indebtedness to her, and the use of the balance of it, if any, for her life. But he had yet other property, both real and personal, of which he had made no disposition. And as to this, remembering, as he had before suggested, that his cotton goods might not prove of sufficient value to pay all his debts, he charges this property, which he is now about to dispose of, with the payment of the debts which might remain, by this language, viz. “All the rest of my property, both real and personal, not necessary or *504taken to pay my lawful debts, I give and dispose of to Mrs. Sarah Cowdrey and her son Loren, &c.” I think this is a clear direction that the specific legacies, before given, should not be incumbered with debts; but that this residuum, thus given to Mrs. Cowdrey and her son, should constitute the fund from which they should be paid.
But it is said, that this real estate was specifically devised; and therefore, according to one of the principles before suggested, that the bank stock, though a specific legacy, is first to be taken for the payment of these debts. I think this is a mistaken view of the will. Aside from the fact before stated, that this residuum is directly charged with the payment of the remaining debts, and therefore, is to come to the relief of the specific legacies, I feel very clear, that here is no specific devise to Mrs. Cowdrey and her son. It is a general and undefined disposition of the remainder of the estate, both real and personal—that residuum of which the testator spoke, when bequeathing the remainder of the bank stock, after the death of the legatee. It is true, the testator supposed, that the real estate belonging to this residuum, or some part of it, would yet remain, after all his debts were satisfied, which he had charged upon it; and this he distributed between his residuary devisees, by directing that the mother should have the dwelling-house, and the son the factory estate, after her death; but this direction does not constitute this devise, specific.
It is also said, because the testator directed, that the notes secured upon the bank stock should be paid, by his executors, so far as might be, consistently with his will, that this in some way shows, that the bank stock was not to be protected from the charge of paying the debts. I cannot comprehend how this can be. These notes were debts, which, consistently with the will, could and ought as well be paid from the avails of the cotton goods, or from the residuum of the estate, as any other debts. Indeed, I think the testator, by this arrangement, still more clearly intended, that the bank stock should not be taken for the payment of debts, and that the legatee should be certain to have it, unembarrassed by any such call. Livingston v. Newkirk, 3 Johns. Ch. R. 312. Rogers v. Rogers, 1 Paige, 188.
*505I think the decree of probate should be reversed.
Storrs, J. was of the same opinion. Waite, J. having been concerned in the settlement of the estate, gave no opinion.Decree of probate affirmed.