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intention, put the construction on his will which was now contended for; and accordingly paid off the mortgage in question, among his other debts, out of his personal estate; and caused a re-conveyance to be made of the mortgaged premises to Henry Hudson, to the uses in the will mentioned, within six months after the testator’s death, and near ten years before filing the present bill.

As to the legacy of $100 given by the testator’s will to Winefred Collingwood, it was conceived, that where a legacy is by a will charged on land only, yet the personal estate of the testator shall be first applied, unless there is an express clause of exemption in the will, or the personal estate is so disposed of that it cannot be presumed to have been the intention of the testator that the legacy should be paid out of it. In the present case there was no such express clause of exemption, and nothing from which such an intention could be presumed. On the contrary, the testator had, by the general words used in the beginning of his will, expressly made all his legacies payable out of his personal estate. A doubt could only arise in consequence of the subsequent direction, that this legacy should be paid out of his freehold and copyhold estates. The reason of that direction was obvious; the testator had little or no personal estate at the time of making his will, and if he had died at that time, this legacy must in all probability have been paid out of his real estate, whatever construction might have been given to the will; but as he had before charged his personal estate [432] with the payment of all his legacies, as well as his debts and funeral expences, and had directed the deficiency only of his personal estate for such purposes, to be made good by sale or mortgage of his real estate ; the particular direction, respecting this legacy, did not seem a sufficient ground for contending, that the testator did not mean that this legacy should be paid out of his personal estate, in case that fund should be sufficient for the purpose: especially, as it could not be contended that the testator meant to burthen his real estate in ease of his personal; for he made no disposition of the residue of his personal estate; and the respondent took it only as executrix, in pursuance of the determination in her favour in the other cause. It was further remarkable, that this legacy of £100 was the only pecuniary legacy given by this will, except legacies of 20s. to each of the testator's servants, which immediately follow the legacy in question; so that by making this legacy a charge on the real estate only, the testator's declaration in the former part of his will, that all his personal estate, except what was specifically given, should be applied in payment of his legacies, was necessarily treated as nugatory, and without any object, except the twenty shillings given to each of his servants. By such a construction too, the testator was supposed to have conceived an intention for which no reason appeared; for as he did not think the residue of his personal estate, after payment of the charges made upon it, an object worthy of his attention in the disposition of his property, there appeared no reason whatsoever for his charging his real estate with this legacy, in exoneration of his personal estate; on the contrary, the testator having limited the real estate in strict settlement, there was a strong reason for his wishing to exonerate that estate from all charges which his personal estate would extend to pay. And if the construction which the decree had put upon the will, with respect to this legacy, was the true construction; then, in case the will had not been executed according to the statute for preventing frauds and perjuries, the legacy would not have been payable, notwithstanding the testator in the beginning of the will charged his personal estate with all his legacies.

On the other side it was said (J. Mansfield, J. Scott) to be perfectly clear, that, by the established rules of equity, the personal estate of a testator, whose will does not require such application of it, is not to be applied in favour of those who claim his real estate, for the purpose of exonerating it from debts not originally contracted by such testator. Courts of Equity distinguish between the debts of a testator, and the debts of his estate. If the testator has received the money for which his real estate is pledged, his personal estate, having received the benefit of the charge made upon the real estate, is equitably liable to disincumber the real estate. But if the testator's ancestor created the charge, the testator's personal estate receives no augmentation at the expence of the real estate, and cannot, in such case, be considered as debtor to it. This holds equally, whether the testator was seised in fee simple, or for a less estate in [433] the lands charged. And it seems too to be the true principle of all the determinations upon this subject. The circumstance of the testator's having been personally