We see no reason for reversing the decree of the court of probate.
The share given to Mrs. Bell is, we are satisfied, a pecuniary legacy. It is to be paid to her, by the executor, in money, after an appraisal of the estate, and after paying out of the one-eighth given to Mrs. Bell, certain sums due from Andrew Bell to Stephen Raymond. The executor cannot make a settlement of the estate, without first ascertaining what, is due to Mrs. Bell, as aforesaid, and raising the money, by sale, to pay her. This he has attempted; and has obtained an order from probate to raise the necessary funds. He could not have done otherwise.
The next question is, whether Mrs. Bell's one-eighth, is one-eighth of the gross estate, or of the net estate. We are satisfied it is the latter, The will should be read as if the testatrix had said, " after nt debts are paid, I give one-eight &c., to my daughter, Betsey Bell ;" for the will has to do with disposable property, and not at all with that which is lIrst paid *342out jo settling the estate, That is not disposable. True, she might have charged her debts, legacies and the expenses, upon specific parts of the estate, to the exclusion of all the rest; but this she has not done. In the absence of such a charge, the court can make no discrimination, but apply the general principle that the gross estate stands charged entirely, first, with that which is personal, and then that which is real, so far as the real estate is chargeable at all. This case is like Briggs v. Hosford, 22 Pick. 288. and Irenes v. Johnson, 4 fes. 588. Spaulding v. Spaulding, 2 Root 271. is not to the contrary. In that case, the testator charged his whole reat estate with the payment of a specific sum of money.
It is further said, that the allowance to be made Stephen Raymond, for certain debts, and certain future disbursements by him to Andrew Bell, is against the policy of the law, and void ; and that as the payment is subsequent to the vesting in Mrs, Bell of her one-eighth, the condition must be rejected, and her said share held discharged therefrom.
We do not assent to these propositions. The charge doe3 not, on its face, (and we see nothing else,) appear to be for an improper or forbidden purpose. Nor is the deduction of said debts and disbursements, of the nature of a subsequent condition. We cannot know but this provision was highly proper. Mrs. Raymond might wish to indemnify her son Stephen from all injury or loss, which he had or might experience, from the conduct of said Bell. She may have given him a deed of the property with covenants, and therefore be bound to save him harmless. She may have been the principal, and her son the agent, in what was done, out of which the controversy has arisen.
Nor do we feel the objection, that this provision may tempt to illegal and violent acts, or unnecessary litigation: the will shows nothing of this. The struggle may have been bona fide; and we are not at liberty to assume what does not appear, in order to disappoint the testatrix in this apparently just and reasonable indemnity.
Besides, this is not a subsequent condition. The share of Mrs. Bell is not to become hers until the said sums to be allowed as aforesaid, are first deducted and retained. If Mrs. Bell claims under the devise, she must take according to the *343terms of the devise ; and therefore, she cannot object to the testatrix’s first deducting what she pleases from the one-, eighth, and giving her the remainder.
Nor is there any objection to the amount allowed to Stephen. It was ascertained, in the first place, according to the will, by the executor, and after that, approved by the court of probate. The will expressly directs the executor to allow what Stephen shall attest by oath. This is the rule. If there were fraud or mistake in this proceeding, the court would give relief; but the court itself has allowed the amount; and having the requisite jurisdiction, we must hold that judgment proper and conclusive.
We advise that the decree of probate be affirmed. ¡
In this opinion the other Judges concurred.Decree affirmed.