374 HAMMOND v. HAMMOND.—2 BLAND.

139, note, or where a judgment had been obtained against the
surety on a bond, such surety, before he had paid any part of the
debt, was permitted to file a bill against the representatives of the
deceased, and to have the realty sold for the satisfaction of his
principal's debt to save himself harmless. Howard v. Harris, 1
Vern. 193; Antrobus v. Davidson, 3 Merival. 570; Arthur v. The
Attorney-General, ante, 246.

*In the case under consideration, it is clear, that the cred-
389 itors of the late Philip Harnmond could only obtain satisfac-
tion from his real estate in the manner in which his will directs; and
that they could only enforce payment in that mode by a bill to which
the heirs, devisees, and executors, were parties: because, by the
will a sufficiency of assets for the payment of all the debts of the
testator have been lawfully passed into their hands. But the de-
visees and legatees, under the wilt of Philip Hammond, deceased,
take an estate or interest which they have a right to have disen-
cumbered and protected from the charge imposed upon it, either
by means of the funds placed in the hands of his executors for
that purpose, or that the incumbrance should be adjusted and
reduced to its proper proportions, and lowest amount, by a contri-
bution from all the devisees charged with contribution. In this
respect, these devisees stand in the condition of junior mort-
gagees, or simple contract creditors, who have a right to redeem,
or to have all superior incumbrances satisfied and removed, so as
to give them the full benefit of the surplus. But, from the manner
in which they take and hold, they have no means of ascertaining
whether there are, in fact, any creditors or not; or if there are
any, who they are, and the amount due to each, which has been
left unpaid out of the fund set apart by the testator for their sat-
isfaction. Unless they are permitted to have their complaint for
all these purposes considered and treated as a creditor's suit, and
the creditors of the testator notified to come in, establish their
claims, and receive satisfaction, they can, in no way, disengage
their respective portions from the incumbrance charged upon it,
the cloud that has been thus suspended over them may long re-
main, or, at some future day, burst upon: them to their ruin.

The next difficulty is, as to the proportions in which these devi-
sees are to contribute. It has been contended, that the testator
having given to each one of them what he, at least, considered as
portions of equal value, must therefore have intended that they
should contribute share and share alike. But I understand the
testator differently.

As I have before remarked, it is perfectly evident that the tes-
tator had adjusted the divisions and distribution of his estate with
great deliberation and care; and by the very act of setting apart
a separate fund for the payment of his debts, he strongly indi-
cated an intention, that the relative value of the divisions he had