delivered the opinion of this court.
We are of opinion the court properly refused the prayer of the petition of the appellant. It is clear from the language of the will of his testator, that he intended to set free all his slaves, which he did, so far as he could do so, by unequivocal language. The substance of the averments of the petition may be thus given: that the personal estate of the deceased, other than the negroes, was inadequate to the payment of its debts; that some of the creditors had prosecuted their claims to judgment, and that all the other property of the testator had been specifically bequeathed, and that the negroes were the primary fund out of which the debts were to be paid. There had been no marshalling of the assets of the estate, so as to show what was the deficiency of personalty, nor any adjustment of the proportions in which the several legatees, if bound to do so at all, were to contribute to the payment of the debts of the estate. Until these facts were established, the orphans court properly refused the prayer of the executor. Had it been granted, the rights of the negroes would have been concluded, when, under the law of this State, they had the right to have them passed upon by a court of equity, prior to the determination of their petition for freedom.
Order affirmed with costs.