Speaker v. Van Alstyne , 1 Lock. Rev. Cas. 134 ( 1799 )

On a writ of error to the Court of Errors, the judgment was reversed, and that court held as follows:

Where a testator devised lands to two of his sons, without words of perpetuity, but directed them to pay all his debts; disposed of all his household goods and moveable effects to his wife, and created no estate in remainder as to the property devised to his sons ; and where, from the tenor of the instrument, it was manifest that the testator intended to dispose of his whole estate. It was held that the charge upon the sons was personal, and that by necessary implication, they took a fee in the premises devised to them, although in other devises in the same will, words of perpetuity were used.

“It is manifestly the intention of the testator that the devisee shall pay debts or other charges, in respect to the lands devised to him, and not merely that he shall pay such debts or charges out of the income or pnfits of the land devised, the charge is personal upon the devisee, and he takes a fee by implication, although the devise be without words of perpetuity.

“ Personal property, specifically bequeathed, and not as a mere residuum, is not the primary fund for the payment of debts, if by the same will, lands are given to the sons of the testator, who are directed to pay his debts; to exonerate the personal property in such a case, it is not necessary that there should be express words of exoneration.”

21 for reversal, none for affirmance.