The master commissioner, (A. Moore,) in his report, has referred to the court the claim of Thomas Hammond, in right of his wife, to 1/23 of the residuum of General Washington’s estate. In the fifth article of his will he desires that all the residue of his estate, real and personal, may be sold by his executors, (if it cannot be equally and satisfactorily divided,) and the money divided into twenty-three equal parts, of which Mrs. Hammond was entitled to 1/231 and Burdett Ashton to % of 1/23. A share was $5,179.05. Burdett Ashton had purchased at the Sale to the amount of $9.410.20, and was entitled to a credit of his % of 1/23, which was not then ascertained, but afterwards appeared to amount to $3.452.70. He gave a mortgage on the 12th of March, 1S05, for the whole amount of his purchase, $9,410.20; which, after deducting from it his % of 1/23, was supposed to be more than sufficient to pay Mrs. Hammond’s share. The executors, on the 11th of March, 1806, assigned to Hammond, Burdett Ashton’s debt and mortgage; and, on the same day, took from Hammond a mortgage to refund to the executors the surplus, after deducting Hammond’s share from the balance of Ashton’s debt, thus assigned to Hammond.
Upon or under the assignment of Ashton’s mortgage was written a memorandum, that the executors were not to be made personally liable in any respect, or on any pretence whatever, for or by reason of that assignment; and that Burdett Ashton was to have credit for his proportion of $5.179.05, (being the share of each legatee,) as well as for his sister’s proportion; and one of the conditions of Hammond’s mortgage was, that he should indemnify and save harmless the executors, against all claims, demands, or damages whatsoever, on account or by reason of the assignment and transfer of the aforesaid debt to him, the said Thomas Hammond, and to refund in case he should be liable so to do. He covenanted, also, to the same effect. The property mortgaged by Ashton. *359was sold under a decree, and produced only $3,908.40.
The debt of Ashton was. $9,410 20
He had a right to retain. 3,452 70
The real amount of Ashton’s debt was $5^957 50’
Hammond's claim was. 5,179 05
The amount secured to the executors by Hammond’s mortgage was. $ 778 45
This sum of $778.45 then was, by the terms of the mortgage, to be absolutely paid by Hammond to the executors, whether Ashton became insolvent or not, or whether the land produced more or less than Hammond’s claim. Such was his covenant. We therefore think that he could not have had recourse to the executors, even if he had not expressly exonerated them.
But it is said that the estate is not exonerated, although the executors are; and that the estate is liable, as assignor of Ash-ton’s debt, under the equity of the 41st section of the statute of Virginia, of December 13, 1792, (P. & P. Rev. Code, 165,) which compels the distributees £o take the specific bonds of purchasers of the personal estate, when sold because perishable; in which ease, if the bonds are not good, they are to be made good out of the .estate. It is admitted that the present case is not within the letter of the statute, and we think it is not within its spirit; for here the debt of Ashton was voluntarily received in payment. Hammond was not obliged to receive it. We think that General Washington’s estate is not bound to make it good, and that the executors may recover from Hammond the difference between Ashton’s debt and Hammond’s share of the estate.