In this case the testator devises nearly all his estate to Ann Carney, his wife, after payment of his debts, but gives no directions as to the fund out of which they were to be paid; nor would that omission at all affect her interest if there had been another subscribing witness to the will, so as that the real as well as the personal estate would have thereby passed to her. But as there is only one subscribing witness, she thereby acquires an interest only in the personal estate. And therefore it is that this bill is brought to subject the real estate to the payment of debts in exoneration of the personal.
We should feel no regret in aiding her in this attempt (as she seems to have been the principal object of the testator's bounty) if authorities were not opposed to us. It seems from consulting them to be laid down in cases where both real and personal estate pass by the will, that as the personal estate both in law and equity, is the lawful and proper fund for the payment of debts, it cannot be exempted therefrom except by express words used by the testator for that purpose, or from a clear intention that it should be, collected from the whole tenor of the will; nor can the pretensions of the widow of the testator be strengthened from the peculiar circumstances of this case, namely, that only personal estate passes by the law; because the rights of the heirs at law to whom the lands have descended are as much, at least, to be regarded as those of devisees, to whom, other than the widow, the lands might have been devised.
If, indeed, the testator had, in express terms, directed that his lands should be subject to the payment of his debts, it would have given rise to the question (one probably of no great difficulty) (141) *Page 112 whether such a will could, in any respect, affect the rights of the heirs at law. But as he has been silent upon the subject, replying upon the grounds we have first taken, we think we have no authority to interfere, and that the bill should be dismissed.
* 1 Wils., 82; 3 Ves., Jr., 111.
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