#### JOHN C. ATKINS, EXECUTOR OF HENRY DELAMOTHE vs. FRANCIS J. KRON AND OTHERS.

Where a testator devised all his estate, real and personal, to certain persons, chargeable with the payment of a number of pecuniary legacies, and, owing to their being aliens, they were incapable of holding the real estate, but this was decreed to belong to other devisees, in the devise to whom both the real and personal estate were still charged with the payment of the legacies; Held, Dahteu, J. dissentiente, that the real and personal estate constituted a mixed fund, out of which the legacies, except- those to aliens, must be paid pro rata.

Held, further, that the pecuniary legacies to the aliens could not be charged at all upon the real estate, but must be paid exclusively out of the personal.

This case was before the court at December Term, 1841, when all the questions presented, except one, were decided. The facts will be found at large in this volume of the Re *426ports, ante, p. 58. The only facts, necessary to state in re-to the question reserved and now determined, are these. Henry Delamothe, a naturalized citizen and resident of this State, being seized and possessed of a large real and personal estate in this State, died in 183S, having first made his last will and testament, in which, after bequeathing many pecuniary legacies, he devised as follows: “ I give the balance or residue of my property to my executor in trust for the benefit of my sister Quenet’s grand-children by the name of Forestier, to be paid to any one oí them who should apply for the same, subject, however, to the payment of the legacies made in this will, and moreover obligatory to them to tire payment of $100 yearly, to their grand-mother Q,ue-net during her life,' and after her decease, the same sum of $100 to be paid to their own' mother, yearly, also during her life. But should no one of my sister Quenet’s grandchildren or any one duly authorized legally to receive the above property in their behalf apply within two years from the time of my decease, then the above property to revert unto Mary C. Kron’s children and to be distributed equally among them, subject, however, to the legacies herein mentioned.” The executor filed this bill for the advice and direction of the court in the execution oí his trust. The court decided that the trusts in favor of the Forestiers were void as- regarded the lands, they being aliens, but were good as to the personal estate; and the question now arose, out of what fund the pecuniary legacies were to be paid, the personal property being amply sufficient for that purpose.

The case was argued at the last term, by Strange for the Forestiers and Winston for Kron’s children, and the court, having taken an advisari, now delivered their opinion.

Buff in, C. J.

When this case was formerly before the court, 2 Ired. Eq. 58, a question was stated to have arisen, whether the land, taken, under the construction given to the will, by the children of Mr. and Mrs. Kron, was to bear any portion of the legacies with the personalty. That question has been since argued, and the subject deliberately consider*427ed by each member of the court, and the result of our deliberation and consultation is, that in the opinion of a majority of the court, the different parts of the fund, given or attempted to be given to the Forestiers, must contribute towards the pecuniary legacies, (except those given to aliens,) in proportion to the values of the real and personal parts respectively.

The natural justice of that rule seems to be obvious; and we believe the authorities are not in opposition .to it. The testator gives the whole residue of his estate, of every kind, to certain favorite relations, and upon a particular event he gives the same residue to others of his relations, declaring however that the fund, in the hands of each class of tbe'do-nees, should be subject to his pecuniary legacies. It has happened, that neither disposition has taken effect as the testator intended, and, doubtless, expected, for the primary do-nees take the personal portion of the fund, but as they could not hold the real portion of it, that goes to the substituted class of donees. It would be shocking, if the primary objects oí the testator’s bounty should not only lose that part of the fund, which the law, upon a principle of policy, will not allow them to hold, but should also, in effect, be deprived of that part, of which the gift was valid, by having thrown on it all that was charged upon the whole fund. Upon that ground it was contended on behalf of the alien donees, that, as the favorites of the testator, they should keep the personalty, exempt from legacies, until the land should be exhausted.

But we are not at liberty to go that length, although it can hardly be doubted, if the testator had been asked, how the legacies should be raised in the event which happened, that he would have said,. “ out of the land, for I did not mean the Kronsto take any thing which the Forestiers could, but that the latter should have all my estate except the sums of money I have given away in the previous parts of my will.” But it must be admitted, that intention, however naturally to be inferred from the circumstances, cannot be carried into effect, for the want of words from the testator himself, ma*428king the land the primary fund for this purpose. Neither can this be done by marshalling, that is to say, by throwing the legacies on the realty ; for that would be to give the aliens indirectly the benefit of a devise of the land, which they could not take directly, or, at least, hold. That is the rule in England with respect to a bequest to a charity of money charged on both real and personal estate. The court do not marshall by throwing the debts on the land and leaving the personalty for the charity. Mogg v Hodges, 2 Ves. 52. Makeham v Hooper, 4 Bro. C. C. 152. The same principle must apply to a gift of the like kind to an alien.— But although the realty is not, as far as it will go, to bear .the whole charge, yet it does not follow, that it shall not answer for some part, and if so, then it is to bo enquired, what part? .'It has been contended for those that get the land, that it is to pay nothing, because the personal estate is the primary fund for the payment oí legacies, and a mere charge on the land, however explicit, will not place the land in front of the personalty, nor subject it to contribution. Neither branch of the proposition is controverted, but each is fully admitted. On the other hand, it is undeniable, that it is in the power.of a testator to make those different portions of his estate pay his legacies in any order or proportions,which ■to him may seem meet. The question upon each will is, whether that testator intended to charge the realty in aid of the personalty, or before it, or as contributory. Oases of both the former kinds are frequent in the books, where the one kind of estate goes to one set of persons and the other to another set, and though they are not all reconcilable, yet at this day it is not difficult in mosteases to determine whether the land is charged as the primary or the subsidiary fund.— But we do not find many cases, in which the two kinds of estate have been held to contribute. Some such there are, however, and they seem to turn, not so much upon the actual intention of the testator, that there should be contribution between the realty and personalty, as such, as upon the application of a principle of natural justice and a rule of equity to a case which was not foreseen by the testator, ancl *429about which he had, therefore, no particular or precise intention, but only a general intention, which, to be carried into effect, requires contribution.

Such a general intention is to be respected as governing the construction of the will, and to it a particular inconsistent intention must yield. Much more must the general interest govern, when there is no particular intent, one way or the other. When the personalty and realty are given to different persons, and the latter is charged, and merely charged with legacies, it is as clear that the two funds do not contribute towards the legacies, as that the real is not the primary fund for their payment. In such cases there are not only two funds, in the sense that the estates composing them are different in their nature, but also in the sense that they are not given together, but severally and to different persons, and severally charged. In every mode of speaking of them they are two funds, as well for the purposes of raising a charge as any other. But when realty, or the proceeds of realty, and personalty are given together to the same person or persons charged with legacies, the several parts have been held liable to the charge pro rata according to their respective values. In Roberts v Walker. 1 Russ. & Myl, 752, the master of the rolls said, that when a testator creates a mixed and general fund from real and personal estate, and directs that fund to be applied to the payment of debts and legacies, the realty and personalty must contribute pro rata, and as in that case there was no disposition of the fund after the payment of the debts and legacies, the next of kin took what was left of the personalty,' and the heir did the same with respect to the realty. It seems not to have been always so understood, Howze v Chapman, 4 Ves. 452.— Paice v The Archbishop of Canterbury, 14 Ves. 364. For, as was observed in Roberts v Walker, the attention of the court was not before distinctly called to it in any of the numerous cases, in which the facts would have raised the question. But this rule of contribution has been established, and is now considered perfectly settled in reference to the gift to a charity of a mixed fund, charged with legacies. — , *430 Attorney General v The Earl of Winchelsea 3 Bro. C. C. 381. Croslin v Mayor of Liverpool, 1 Russ & M. 761.— West v Shuttleworth, Shuford on Mortmain), 237. And precjseiy the same rule has beon applied to a devise of reaL and personal estate to an alien. Fousdrien v Gowdey, 3 M. & K. 408. In those cases the gifts to the charity and to the alien failed, so far as they consisted of realty, and the heir of course took that part, but he took subject to his just ratio of the incumbrance. It is true, there were directions there to sell the real estate, and the proceeds were given and blended with the personalty, so as to make one fund, and it has thence been thought that the decisions turned on that circumstance. It is probable, that a case of that kind, as the more striking, would be more likely to give rise to the rule than a gift of realty, specifically, in conjunction with personalty, and unconverted to any purpose except so far as the charge itself might have that effect. A direction for a sale, though it be but a conversion to the extent of the purposes to which the money is legitimately applicable, denotes, that, as to those purposes, the money arising from the realty, being mingled with the personalty, was intended to be applied with the personalty, and therefore to be liable with it. But that does not seem in reason to flow from the direction, singly, to sell the realty as thereby making it and the personalty one fund, for they are in truth not one fund, in the sense of the real estate being turned into personal estate, for then it would not come back to the heir, whereas the cases cited and many others shew, that the heir takes the money as land not disposed of. That is only one example of the mode of creating such a mixed and single fund. The real ground of the rule must be, that the testator gives the whole, whether consisting of the produce of realty or personalty, or of the realty itself and personalty, as one fund, charged with the legacies, and, as the charge is upon that one fund, if it should chance afterwards to become severed, neither portion becomes exonerated of the charge, but each must bear its aliquot share. But is a sale of the realty necessary to the composition of this one fund, as it is called, in reference to the charg*431ing of legacies on it ? We see not, why that denomination may not as truly be given to it, when the reaity and personalty are charged togeaher with the legacies, and also given together to the same person or persons, and' yet more, when they are given over, or rather in the alternative, together once more. Such is our case. When personalty and realty are given separately to different persons, a charge upon the realty does not change its liability; for theye is no intention presumable that the'two'should bear the burden pari passu, or in any manner different from the order in which the law makes personal and real estate liable. But when the testator gives to the same person realty and personalty in mass, as the residue ol his estate of both kinds together, expressly charged with legacies, can a reason be conceived, one at least founded on sense and principle, why he should intend, that either estate should be applied to the charge, first or last? To the donee of the fund it cannot be material, out of which part of it the money is to be raised ; therefore, his interest is not at all concerned to produce an intention either way in the breast of the testator. On the’ other hand there is a reason, why he, for whose benefit the charge was created, should not be restricted to this or that part of the fund, but allowed to raise it out of any part which he can most conveniently get at. The reason is, that he cannot know the state of the different parts of the fund, while the other party is in possession of perfect knowledge upon those points, and has the control of the whole, andean pay out of any part he chooses ; and it is his duty to pay promptly out of the one or the other, and not to embarrass the legatee as to the source from which he is to receive his money. Intending him to be thus paid at all events, the testator charged the whole fund, though consisting of several things, and, the whole being in the same hands, the inference is very strong, that the testator charged it as a whole, or, at least, each and every part of it alike. Had the gift to the Forestiers proved good throughout, would not a bill have laid for the satisfaction of the legacies, without taking an account of the two estates separately? Would they have been permitted to interpose such *432an impediment to the speedy redress of the legatees? We should have said to them, to what purpose; cid. bono — is such an account to be taken under the directions of the court? The legatee is entitled to his legacy at all events; and from you, in respect of the gift to you of the property charged therewith, The whole fund is in your hands, and if, as you say, there be personalty applicable to the legacy, there is nothing to hinder you from applying it to that purpose; and, if you will not, the money shall be raised from the land which is visible and accessible, and likewise charged. As the court would act in such a case, so the testator thought in making the disposition. He did not contemplate the donation, as comprising different things, to be liable to the charge in succession or in different proportions. He could have no motive for framing a scheme of that sort. He, in fact, meant the donees of the things charged to pay the legacy, and as a security therefor, he charged the combined fund as a whole, inasmuch as it all belonged to the same persons. In this sense the fund may be called a “ mixed fund,” or “one fund,” as appropriately as if it were compounded of the proceeds of realty and personalty. In the case of Beach v Biles, those terms were applicable to a fund of this character. The testator there gave all his real and personal estates to his wife for life, and after her death gave various legacies, and all the residue and remainder of his real and personal estates to his nephews. The question was, whether the legacies were charged on the'real estate 7 In deciding it, Sir John Leach said, “ It is truly stated, that legacies form no charge on the real estate, to affect the heir or devisee, unless the testator has shewn a manifest intention to that effect. The testator here gives all his real and personal estate to his wife for life, blending them together for her use. And he plainly continues, after her death, to treat them as one fund, the rest, residue and remainder of which, after payment of legacies, is to go to the nephews.” And the decree'was, as prayed for. It is true the question there was, whether the land was charged, as to which, the case at bar admits of no doubt, as the will is express in two places. But the reason *433why the court then held the land to be charged is the point material to us at present. That was, that although the proceeds of land were not given, but the land itself, vet it and ° , „ , t . the personalty formed “one iund/J because they were given together to the same persons, subject -to one and the same charge. There was no question raised, as to the order in which the land should be liable at all, because, as we suppose, the point was immaterial. Hence, without enquiring whether the personal estate was exhausted, there was a declaration at once, that the legacy was charged on the land as well as the personal estate, and, no doubt, a decree that it should be raised forthwith out of either or both, for the reason,, that the two estates were “blended” by the testator, who, in so doing, treated them as “ one fund.” Similar phrases, “ lands combined, mixed up and treated as one fund with personalty,” are applied to similar cases, and for the like purposes in Edgell v Haywood, 3 Atk. 352, and Cole v Turner, 4 Russ. 374. If, then, the gift of the realty to the For-estiers had been good as well as that of the personalty, there would have been, in a suit against them, no distinction between the different parts of the fund as to the order of liability,'but the legacies would have been 'raised as well out of the one part as the other. Upon the failing, however, of the gift of the realty to them and its going to another, is it to become discharged, or is the order or extent of its liability to be altered? Why should that be? There is certainly no intention of the testator to that effect discoverable. Indeed he cannot be supposed to have had in view the failure of hisgift.to any extent, fora testator always conceives his dispositions to be effectual, however he may be mistaken.— He had, then, no intention applicable to the case which has happened, as to the order or proportions in which the different parts of this fund should answer the common charge upon the whole. Consequently the charge, which was once well constituted, continues, and the heir, who would take if there were no gift substituted in the will for that which did not lake effect, would take cum onerc. But as the two parts of the fund, though not contemplated by the testator, are *434thus to go into different hands, there arises an equity among those several owners, as between themselves, upon which the burden must be apportioned, since it is not just that either, by the contrivance of the other, or the caprice of the creditor, should have the whole sum raised out of his part of what was once, the common or consolidated fund. That equity is equality, which apportions the charge according to the relative value of the respective parts. Such was the rule in the cases of the charities and the alien before quoted¡ in which the heir or the sovereign as standing in the place of the heir, took the fund' illegally given. But this case is, it possible, stronger than that of an heir. The gift here is of the whole residue, expressly declared to be composed of realty and personalty, to the Forestiers in the first instance, upon the condition of their applying for it, and upon the contingency of their not doing so, then there is a gift of fhe very same corpus to the relations in this country, “ subject however,” the testator carefully repeats, “to the legacies herein mentioned.” The substituted donees are thus, according to the views entertained by the testator, to succeed to the whole fund precisely as those would, who were to take first, and subject to' the same charges. It turns out, that each class of the donees get a part and only a part of their donations, and if the testator' can be supposed to have had any intention respecting such a case, it must be presumed that he did not mean the substitutes to defeat the primary objects of his bounty, by ‘keeping to themselves their part free of charge, and throwing the whole burden on what was left to those who were intended to be preferred before them. But it is the more probable conjecture, that the testator did not foresee any such partial efficacy and' partial failure of his dispositions, and therefore that he had no precise intention respecting this question, but only the general intention, that all the fund and every part of it should be chargeable to the legatees, thus imposing the duty on the court of apportioning the charge, according to the actual state of the fund, amongst its disjointed members. That duty is performed, according to the maxim of the court, by *435an apportionment pro rata, according to their relative value. But when charges on the joint fund are thus apportioned, it must be understood only of those, which may lawfully be charged on the land. A legacy to a charity or an alien, chárged on land, is void as a charge on the land, and sinks for the benefit of the heir or devisee, and enures for that oí the sovereign who takes by escheat. Jackson v Sutton & Hurlock, Amb. 487. Wright v Role, l Bro. C. C. CO.— Fourdrin v Gowdry, 3 M. & K. 408. Consequently the annuity to Mrs. Quenet and Mrs. Forestier, which will continue during their joint lives and the life of the survivor, and that to Francis Augustus De l,a Mothe also, if he was not qualified to hold real estate at the death of the testator, are in effect, exclusive charges on the personalty, and therefore there must be an enquiry as to the condition in that respect of F. A. De la Mothe. But the legacies, except those to the aliens, with the charges' of administration and the costs of this suit, are to be borne ratably by the real estate and personal estate, as a charge on the whole thereof as one fund, and the master will apportion the said.charges and legacies between the real and personal estates, forming the residue devised by the testator, in proportion to their respective values, for which purpose he will take an account of each of the said estates and their respective produce since the testator’s death, and set a value on each, reserving, however, the consideration, how the proportion to be borne by the real estate shall be raised and to whom it shall be paid.

Daniel, 3.

Dissentiente. The testator devised the remainder of his property, consisting of real and personal estate, to the plaintiff, as his executor, and trustee, to pay certain legacies and annuities, (which are but legacies,) and some of these legatees are aliens. There is no direction to the trustee in the will to sell the land and convert it into personal estate, for the aforesaid purposes.

The funds are therefore not mixed, but consist of two species, one of real, and the other of personal estate. The personal estate is, therefore, the primary and natural fund to *436pay these legacies and annuities, and the real estate'is but charged, and only to be resorted to in aid of the personal estate, when that fund becomes exhausted. Even if the testator had directed his executor to sell or mortgage his real estate for the payment of his debts and legacies, that alone would not be evidence of his intention, that the personal estate should be exempt from its primary liability, and it would amount only to a declaration, that the real estate should be applied to the extent in which the personal estate, which by law is the primary fund, should be deficient for those purposes. Rhodes v Rudge, 1. Simons Rep. 84, 85. Williams on Exec’rs. 1048. if the testator had given the land in trust to pay debts and legacies by the sale of it, or the creating a term of years out of it for that purpose, still the personal estate would have to be first applied. For the land would not be directed by the court to be sold, or the term raised, if the personal estate could discharge the debts and legacies, as the produce of the sale of the land had not been directed by the will to be converted into personal estate for those purposes, Inchiquin v French, 1 Cox. 1 Amb. 33. Hancock v Abbey, 11 Ves. 186. Tower v Rouse, 18 Ves. 32. Legacies to aliens, charged on land, or payable out of land, are void, so far as relates to the charge on, or interest in the land, although the land ‘was directed by the will to be sold and converted into money for the special object of paying debts and legacies. Aliens can no more take an interest in land, which this would be, than the land itself Foudrien v Gowdey, 9 Cond. Chan. Rep. 95. In the aforesaid case, the testator directed by his will all his property to be sold and converted into money, and placed with his personal estate, and after charging this mixed fund, with his debts and legacies, gave the residue to aliens resident abroad; held that the rule which is applicable to charitable bequests, was now applicable in respect to the alien legatees. In England, an alien friend, ora charity, can take a legacy only of pure personal estate. But neither of them can take a legacy arising from the produce of land, or from any interest arising out of land. But if the fund is a mixed fund, *437arising from a direction in the will to sell the land and mix the produce of the sale of the land with the personal estate to pay the debts and legacies, and some of the legacies are given to a charity or to an alien, then'a particular rule is to be followed, as to the payment of the debts and all those legacies, which are not charitable or alien legacies. It is called the rule of equity in charity cases. '.What is that rule? Shelford on Mortmain and Charities, 217, says, that when a testator directs his real and personal estate to be converted into money, and . the mixed fund to be applied to certain stated purposes, and some of .those purposes fail by lapse or otherwise, questions have arisen, whether the remaining purposes, which are in their nature primary charges upon the personal estate, are to be satisfied out of that estate as far as it will extend, in exoneration of that portion of the mixed fund, composed of the produce of real estate,- for the benefit of the heir, or whether the remaining purposes are to be satisfied out of the real and personal parts of the said mixed fund pro rata. That debts and ordinary legacies are to be paid" out of the said mixed fund, in the proportion of the amount of the real and personal estate, which has contributéd to make up the said mixed fund, is now the established'rule of the Court of Equity, and is the rule in charity cases before referred to. It is to prevent the whole personal fund being exhausted in favor oi the heir, to the prejudice of the right, which the charity or alien legatees had in the pure-personal estate, to satisfy their legacies. The testator could nothave.intended that the heir, should be so far favored as that this part of the mixed fund, which was made up of pure personal estate, should bear the entire burthen qf all the debts and all the legacies, to its entire extinction, before the other fund, made ol the sales of the land, or which was directed by the will to be converted into personalty for specified objects, should be called in to the assistance of paying the debts of the testator and the other legacies. It will be seen that the testator-does not mean in such cases to convert his land out and out into personalty, but he means to- convert it into person*438alty for specified objects only; if, therefore, any of the objects fail, the heir oí the testator shall have so ranch of the produce of the land by way of resulting trust as. would have gone to that object had it not failed. But of a mixed fund, before he shall have any of the money as land, the fund shall pay debts and ordinary legacies of the testator, in proportion to the respective values of the land and personal estate, which made up that mixed fund. The court can well see that such is at least the intention of the testator. Hill v Cock, 1 Ves. & B. 174, 175. Green v Jackson, 5 Russ. 38. Shelford, 205, 214. The master values the respective portions of the said fund, and after debts and ordinary legacies are paid out of it pro rata, the heir will take the residue arising from the land, and the charity legatee, alien or next of kin, will take the residue arising from that portion of the said mixed fund, which was raised out of the personal estate. Curtis v Halton, 14 Ves. 437. Mogg v Hodges, 1 Cox 9. Foudrin v Gowdy, 9 Cond. Eng. C. C. 95.— Roberts v Walken, 1 Russ. & M. 752. Dunk v Fenner, 13. Eng. Cond. C. Rep. 170. Croslie v Mayor of Liverpool, 1 Russ. & M. 761. Shelford, 238. A direction by a testator, that his land shall be sold, and the produce converted into personal estate for a particular object, or out and out, is considered in a Court of Equity, as done: what is ordered to be done, is in Equity considered as done. The only question that came up for the decision of the court in the two cases of Bench v Biles, 4 Madd. 187 ; and Cole v Turner, 4 Russ. 376, was whether by the words of the will there stated, the real estate was even charged, by implication, with the payment of legacies. The question as to the rate of contribution from two parts of one mixed fund, was not in issue in either of the said two cases. Therefore any words which fell from the court in those cases, as to what was meant by a mixed fund, are not to be regarded, when we are really speaking as to what is to be considered a mixed fund, within the rule of contribution from such a fund in charity cases. Shelford who has recently written a treatise on mortmain and charities, has not referred us to a single *439case, where the rule in cases of charities has ever been applied, except where the land was directed by the will to be sold and converted. I admit that it is said to be a question of intention of the testator, whether the mixed fund was to contribute pro rata or-not. But it seems to me that a mere charge on land, in- aid of the personal estate in the payment of debts and legacies, is not a mixed fund at all, .so as to call for an enquiry by the court as to what was the intention of the testator. The intention on the part of the testator must be so expressed in the will ,as to convince a judicial mind, that the fund then created was meant to pay the legacies pro rata. In the case before us, that intention cannot be looked for, in that manner, as it seems to me. I am therefore of the opinion that as the lands in the hands of the trustee are not directed by the testator in his will to be sold and converted, they are only charged in aid' of the personal estate to pay the North Carolina legacies, and that the lands are not to be considered as even charged, in aid of the personal estate, to pay the legacies of the alien legatees, as aliens are not permitted to take legacies made up of the produce of lands in any manner.

Per Curiam. Decree according to the opinion of the majority of the Court.