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arising, in the first place to pay the same; and then gave the overplus remaining in her trustees hands, after all such debts, legacies, funeral and other expences whatsoever should be paid and discharged, to the appellant upon the terms therein-mentioned; but if he did not comply with those terins, then he should not have the whole overplus-money, but only a fourth part thereof, "remaining after sale of the said estate, and payment of her debts, legacies, funeral and other expences, as aforesaid:" by all which [510] repeated expressions, it was conceived the testatrix had fully declared her intention, that all her debts, etc. should be paid out of the money arising by sale of her real estate. That the testatrix's debts and legacies amounted to abundantly more than the value of the whole personal estate, which remained over and above the specific legacies; and therefore the testatrix knew, at the time of making her will, that if such personal estate was, in the first place, to be applied in payment of her debts and legacies, no surplus would remain to satisfy the bequest of the residuum to the appellant, which was a strong evidence of the intention of the testatrix, that the money arising by sale of the trust estate should, in the first place, be so applied, and her personal estate discharged therefrom, unless the trust estate should, by any means, prove deficient for that purpose; and, in that case only, the personal estate should be applied to make good such deficiency. And that although the bequest to the appellant was made by the description of the rest and residue of her goods, chattels, and personal estate, yet those words were sufficiently answered and satisfied by the specific legacies before given, being first taken out, without making the whole personal estate applicable to the debts and legacies, in exoneration of the trust estate, expressly devised for that purpose, which, in the present case, appeared to be contrary to the testatrix's intention.

On the other side it was argued (C. Talbot, N. Fazakerly), that the personal estate being by law the immediate fund for payment of debts and legacies, the testatrix making her real estate likewise liable to the payment thereof, did not exempt the personal estate from being first applied for that purpose. That the words of the devise of the residuum of the personal estate, viz. "All the rest and residue of my goods, chattels, money, plate, and personal estate whatsoever, not herein-before given away nor disposed of, my debts, legacies, funeral and other expences being first paid and discharged, I give unto my nephew James Noke, etc." plainly demonstrated, that the testatrix intended her debts and legacies should be paid out of her personal estate, before the residuary legatee should take any benefit by that bequest. Besides, the trustees were not, by the will, obliged to sell the trust estate until two years after the testatrix's death; and it would be very unreasonable and absurd, that the debts, legacies, and funeral expences should remain unsatisfied until sale of the trust estate, and the personal estate, which was subjected to the payment thereof, remain untouched and not applied for that purpose. It was therefore hoped, that the decree and the affirmance thereof, would appear to be just and agreeable to the rules of equity; and that the appeal would be dismissed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree and affirmance therein complained of, affirmed. (Jour. vol. 23. p. 101.)

Sarah, Dutchess-dowager of Somerset, by her will, dated the 17th of May 1686, devised her manor of Cherington, in the county of Wilts, to the respondent's late