The opinion of the court was delivered by
Mr. Chief Justice Simpson.This case involves the construction of the will of James B. Floyd, late of Newberry County, and the precise question presented is, whether certain portions of the real estate of the testator, devised in the third clause of the will, shall be held chargeable for debts prior to another portion devised in the second clause. In other words, whether both devises are specific and therefore liable for the debts pro rata, or whether the latter devise is general and therefore first liable — -the first devise being admitted to be specific. The two clauses in question are as follows:
*1062nd clause. “I will to my wife, Drucilla Ann Floyd, and my son, James Barney Floyd, my dwelling house in which 1 now reside and the out-buildings, and (150) one hundred and fifty acres of land around the same, to be laid off to them by commissioners appointed for that purpose, for the support and maintenance of my said wife and son for their joint lives, and after the death of my wife to become the absolute property of my said son, James Barney Floyd.”
3rd clause. “The remainder of my home place, after deducting the 150 acres above mentioned, shall be divided into 5 equal parts with reference to value, and shall go as follows : one share to my son, Charles J. Floyd; one share to my son, John Yancy Floyd; one share to my daughter, Eula Clara Floyd; one share to my grandchildren, the children of my deceased daughter, Mary Ann Margaret Floyd, and the other share to my grandchildren, the children of my deceased daughter, Amelia Rebecca Burton.”
The probate judge, before whom the case was first heard, held that the devises in both clauses were specific, and therefore liable for the-debts pro rata. Upon appeal to the Circuit Court, his honor, Judge Wallace, reversed the ruling of the Probate Court, and ordered that said decree be modified so as to exempt the land devised in the 2nd clause of the will from contribution towards payment of the debts, until the other property and assets of testator were exhausted. ' All the other assets of the estate, including the proceeds of a certain tract of land, directed in the 1st clause to be sold for payment of debts, had been exhausted, so that the controversy is over the lands devised in the two clauses of the will above.
Before the passage of the act of 1858 (12 Stat., 700), inasmuch as subsequently acquired lands did not pass under the will, all devises of real estate in possession were held to be specific, because being in the possession of the testator, identified, and usually marked and described by names and boundaries, such devises had all the indicia of specific devises. The act of 1858, however, making subsequently acquired real estate pass under the will, has been urged as making a change in the law in the matter of devises of lands in residuary clauses of wills, so that since said act such devises should be held general and not spe*107cific, as formerly, thereby subjecting them to contribution for the payment of debts, in advance of other lands devised specifically.
It seems in England, where the rule on this subject was originally as in this country before the act of 1858, that since Statute I. Viet., c. 26 (an act similar to our act of 1858), the doctrine fluctuated, but finally, as stated in Jarman on Wills (3 vol., page 451, note), the old rule was regarded as unchanged, and a devise of real estate has been still held to be a specific devise, even in residuary clauses. In this State we have no decision directly on the point. The intimation in Laurens v. Read (14 Rich. Eq., 256), was outside of the case, nor was the precise question passed upon in Moore v. Davidson, 22 S. C., 101. In fact, in this last case, the question of the effect of the act of 1858 was passed over as not involved. Judge Hudson, however, in the Circuit decree in that case, expressed a very decided opinion that the act of 1858 had not changed the old rule.
The theory why lands devised in the possession of the testator were held to be specific devises, was because they were in existence and referred to and designated in the will, and we can see no reason why, as to such lands, the act of 1858 should have any effect; but as to lands subsequently acquired, there being no special reference made thereto in the will, no description as to location, quantity, or otherwise, and devised simply by virtue of a general residuary clause in the will, which, by operation of the act of 1858, is made to extend to such lands, we can see no reason why they should be regarded as specific. We think the. act of 1858 simply brings such lands under the residuary clause of the will, which clause, for the reason stated above, becomes a general devise; but as to lands previously acquired, and devised by special reference thereto, what foundation is there for saying that the old rule has been changed ? If, under the law as it stood before the act of 1858, such a devise was specific, why should it not be so since the act ?
In the case before the court, the land in which the defendants were given shares, is as much described and identified as that given to the widow and -son, James Barney Floyd. The shares of all of the parties come out of the same tract referred to as the *108“home place” — the widow and son James to take the dwelling house and outbuildings with one hundred and fifty acres around the same, to be laid off, &c., and then the remainder of said home place, after deducting the said 150 acres, to be divided into five etpal parts for the children. If the devise to the widow and son is specific, why not also that to the children ?
The argument of the Circuit Judge is, that it was evidently the intention of the testator that his widow and son James should have a particular portion of the home place, pointed out as the dwelling house, out-buildings, and 150 acres around, and, if possible, this was more specific than the other devises, even admitting that they were specific also ; and that such being the intention, it should be carried out. This is a strong view. But the law makes no distinction between specific devises as to their liability to contribute to the payment of debts. They all stand upon the same platform, and if made liable at all, they must contribute pro rata, and such must be supposed to have been the intention,of the testator when he gave to the devises the character of specific.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that this judgment be certified to the Probate Court for Newberry County, so that the cause may be determined and settled in accordance with the principles herein-above.