Burwell v. Ogilby , 2 Va. Col. Dec. 99 ( 1753 )

One Ogilby by his Will devised as follows “ As to what relates “ to my temporal Estate I appoint as my whole & sole Ex’or “ myv beloved Wife Item I desire all my lawful Debts be paid “ after my funeral Charges Item I leave all Estate at the dis- “ cretion of my Ex’x to be equally divided among my Children “ born in Virg’a And that my Wife shall possess the House & “ Lots during Widowhood but if she marries the House & Lots “to be sold & equally divided among all my said Children” There being a deficiency of p’sonal Assets to pay the Tes’tors debts The Cred’rs by simple Contract brought this Bill ag’st the Ex’trix & Children to subject the House & Lots devised above to the paiment of their debts

Barradall fr Pits. The Lands & Tenem’ts of a person dece’d are not subject by the Common Law to the paiment of debts by simple contract tho’ they are to debts by specialty But as there is no foundation in natural Justice for this distinction And the Civil Law makes no difference between debts of the one sort & the other Nor even a Court of Equity in Cases of Bankrupcy & Meer Equity as Trusts &c. Therefore Equity is always ready to assist simple contract Cred’rs to subject the Lands to a satisfaction of their debts where the p’sonal Assets are deficient

If an Ex’or pays debts by Specialty out of the p’sonal Assets Equity will relieve the simple contract cred’rs & charge the Lands to the value of the Debts by Specialty paid by the Ex’or And so in Case of a Will the most liberal construction will be made to subject the Lands And this seems founded both in Charity & Justice for we ought charitably to suppose every Man intends to pay his Debts & tis certainly just & right that they should be paid

The words of the Will are “As to what relates to my temporal Estate I appoint my wife Ex’or Item I desire all my Debts may be paid after my funeral charges”

[100] The words temporal Estate include real & p’sonal Then immediately speaking of his debts is a plain indication he intended they should be paid out of his whole Estate He designed to provide for them in the first place.

Talb. 284. Tanner & Morse.

Then the Will goes on “ I leave all my Estate to the discre- “ tion of my Ex’trix to be equally divided among my Children & “ that my wife shall possess the House & Lots during her “ Widowhood but if she marries to be sold &c.”

This Clause shews he intended his wife & Ex’trix should dispose of his Whole Estate & having provided for the paiment of his debts first it must be intended out of the Estate given to his Extrix

The very making a proviso for paim’t of his debts imports an intent to subject his real Estate because p’sonal would be subject without

Cases of this sort frequent

Cloudsly & Pelham 1. Vern. 411. Devise of Lands to B. in tail Then reciting that he owed B. money devised to him all his p’sonal Estate willing him to pay his Debts Tho’ the Clause as to paiment of Debts seemed only to relate to p’sonal Estate & the Lands were intailed Yet held that Lands were liable Alcock & Sparhawk 2. Vern. 228. A devises his Land to his Brother & Heir & makes him Ex’or & desires him to see his Will performed Lands held liable to debts

Beachcroft & Beachcroft 2. Vern. 690. I do by this my Will dispose of such Worldly Estate &c. first I will that all my Debts be paid

Trott & Vernon Abr. E. 198. 6. I will & devise that all my debts Legacies & funerals be paid & discharged in the first place

Prec. Ch. 430. S. C. Hallon & Nicholl Talb. 110. s. p.

Lord Warrington & Lee Rep. Ch. & K. B. 39. As to all my worldly Estate &c. I give & dispose in manner following

Imprimis I will that all my Debts be discharged & paid

Harris & Ingleden cited in Case ult And as touching such Worldly Estate & my Debts being first yaid & satisfied I will & devise &c.

Bowdler & Smith Prec. Chanc. 264. In point

In all which Cases it was decreed that the Lands were liable to the paiment of the Testor’s debts

The number of these Cases shew the concurr’d Opinion of many great men

The 2. first Cases turn upon all the Estate being devised to the Ex’or And then there is an implied Trust

[101] The latter 3 turn all upon this expression in the beginning “ as to all my Worldly Estate ” providing for his debts in the first place

We have the reasons of all these Cases 1. Tes’tor has given all to his Wife & Ex’trix, 2 he begins As to my temporal Estate 3. he provides for his debts in the first place.

In this Case it was decreed fr tot cur prater Randolph & Custis that the House & Lots should be sold to satisfie the Pits. Debts. And that the Sherif of the County should sell to the highest bidder & the Ex’trix & Heir make a Conveiance to the Purchasor