delivered the opinion of the court.
It appears by the record in this case, that one Anthony Glass died in the county of Warren, in this state, in November, 1834, having first made and published his last will and testament; by which he devised all his real and personal estate to his wife, (who afterwards intermarried with the complainant Peck) for her life, remainder to defendants. The devise to her is in the following words: “I give and bequeath unto my dear wife Helen, all, and all manner of my property real and personal, during her natural life, and for that period to hold, possess and enjoy the same, as fully and entirely as the same can be held and enjoyed.” In a subsequent, part of the will he gives the property, after the death of his wife, to the defendants.
The sixth item of his will is as follows: “I will and devise that all my just debts shall be paid as soon as possible, out of such funds as my executrix may be able to appropriate to that purpose.”
The debts with which the estate was incumbered, as is shown by the report of the executrix to the probate court of Warren county, were about the sum of forty thousand dollars. It is true that a considerable portion of that indebtedness was produced by defending the estate against unjust claims with which it was sought to be incumbered; and which if not resisted must have visited the estate with insolvency and ruin. Mrs. Helen Peck *212occupied the relation of tenant for life, and executrix to the estate. As executrix she was bound to defend it against unjust claims; and as tenant for life, from a due regard to her own interest and the interest of the remaindermen, she was no less bound.
The debts outstanding, at the death of Anthony Glass, were legal incumbrances, which the estate itself was liable to discharge, and the whole estate might have been at once sold, to pay the debts, which were charges against it, at least so much as would have been necessary for that purpose.
This duty was imposed upon Mrs. Helen Glass, both as executrix and as tenant for life. It is shown by the record, that she performed this duty, as also the manner of her performing it.
At the death of Anthony Glass there was a growing crop, which was afterwards sold for about the sum of eighteen thousand dollars; and which was as much a portion of the legal assets of the estate, as the land and negroes. This sum was applied as far as it would go, to the payment of the debts; and was an appropriation of the assets of the estate to that extent.
It is however contended, that it was the intention of the testator, that no portion of the assets should be applied to the extinguishment of the incumbrances; but that the incumbrances were to have been paid off, by the tenant for life, out of the rents and profits of the estate. If that position be true, then the eighteen thousand dollars, being assets, were improperly applied, and is a charge against the tenants for life to that extent, and although this is the natural inference to be drawn from the proposition assumed, yet it has not been seriously contended for, by counsel in the argument submitted. The truth is, the intention of the testator could have been nothing more than the law made it, and that is, that the assets of the estate should pay the debts, and the rents and profits should go to the tenants for life absolutely.
It then being conceded, that the estate was chargeable with the debts outstanding against it, what was the duty of the tenant for life? It assuredly was, to sell so much of the property, at the earliest period, as was necessary to discharge the debts and keep down the interest.
Suppose she had done so, would it not have injured the remainderman in proportion to his interest in the estate, to the same *213extent that it would have injured the interest of the tenant for life? Most assuredly it would. The law however gave the tenant for life, the power to extinguish the debts out of her individual means, and she of course upon doing so would become a creditor to the estate, for the amount paid; compelling her at the same time, to keep down the interest of the debts. This she seems to have done, for the residue of the debts left unpaid, after exhausting the eighteen thousand dollars of assets. Could the remainderman complain of this? What injustice was done him by the tenant for life advancing the means necessary to extinguish the incumbrances? We think none. The tenant for life, and the remainderman might certainly have imited in taking up the liabilities outstanding, in proportion to their relative interests, and have freed the estate from incumbrances; or the remainderman might have extinguished the debts, and have called upon the tenant for life to refund a proportion equal to the value of her interest in the estate, or required so much of the estate to be sold as would have satisfied such proportion.
Upon this principle, the tenant for life has equal right to demand of the remainderman the payment of his proportion, or have so much of the property sold as would be sufficient to discharge the proportion of the remainderman. Suppose the property of the estate had been sold, the interest of the tenant for life alone would not have been affected, but also that of the remainderman. The charge upon each interest would have been in their proper relative proportions, and so must be their respective contributions.
We are of opinion that no inquiry, in relation to the value of the rents and profits is necessary to be gone into, in this case. They belong absolutely to the tenant for life. It is immaterial, from what source the money was drawn, with which the tenant for life paid the debts; the inquiry is only as to the amount actually paid by tenant for life, out of her individual means, for keeping down the interest upon the incumbrances. In ascertaining the amount paid by the tenant for life, necessary expenses, in protecting the estate from unjust demands, such as attorneys’ fees, and the like, ought to be allowed.
Upon ascertaining, then, the amount actually paid, it will be necessary to find the proper proportions to be borne by the tenant *214for life, and the remainderman. This inquiry is to be governed by circumstances. We are first to look to the fact, that the tenant for life in this case, in order that the wishes of her deceased husband might be carried out, surrendered her dowry interest, necessarily large, in an estate like the present. We are again to look to the length of time, from the natural course of things, which the tenant for life may enjoy the estate. If she is very old, or of infirm health, her proportion should be less. If she is not so old or infirm, then she should be required to pay a larger proportion. In no event, in this case, should the tenant for life be required to pay more than one third of the incumbrances, but may be less.
We direct, that a commissioner be appointed to ascertain the facts, and that the probate court of Warren county decree accordingly; and that so much of the property be sold as will be sufficient to pay the tenant for life the amount that she may have advanced for the interest of the remainderman, selling first the personal property, and if not sufficient, then the real estate, unless the remainderman shall pay her the amount that shall be ascertained to be due.
The judgment of the court below must be reversed, and this cause remanded with instructions to proceed according to this opinion.
Judge Sharkey gave no opinion.