Boon v. . Rea

Daniel, Judge, after stating the case as above, proceeded as follows: There is no dispute but that the debts of the testator were properly paid by the administrator, out of the bonds, &c., left by him. And we are of the opinion, that the property mentioned in the ninth clause of the will, was directed to be converted into money, for the benefit of Elizabeth Leak, after the satisfaction of the general legacies. There is nothing in the phraseology of this ninth clause, to induce us to say that the general legacies were intended to be paid exclusively out of the produce of the sales of the property mentioned in it. But it is said, for the plaintiffs, that the codicil shews that was the testator’s intention. We do not think feo. By the codicil, the testator directs the slaves before mentioned in the ninth clause, to be sold for “ cash dozen” The codicil then proceeds thus: “ and as soon as the money that is raised out of my estate, to be paid over to the legatees, as soon as collected.” The ready money to be raised by sale of the slaves, is not expressly directed immediately to be paid over to the legatees, but the money that is to be raised out of his “ estate;” and that, as soon as collected. The codicil, instead of restricting and fixing the property mentioned in the ninth clause of the will, as the only and exclusive fund for the payment of the general legacies, shews that the general legacies were to be paid out of his estate generally, viz. out of all such of his personal estate as had not been specifically given away by the will. The testator knew that his bonds, notes, &c. would not be sufficient to pay his debts, expenses of administering on his estate, and his general legacies; therefore, he charged the fund mentioned in the 9th clause, in aid to effect the payment of the *73 legacies, and the remainder of that fund which should not be exhausted in aid, &c., was to go to Elizabeth Leak. We are of the opinion that the bill must be dismissed. Per Curiam. Bill dismissed.