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80 HIGH COURT Of CHANCERY. Court, appear to have been equally the objects of the testator's bounty, and it does not appear to have been his intention to encumber his lands in the hands of hisf devisee with the pay- ment of the legacies. The question, in the case now under consideration, ia a very different one. Here, James D. Mitchell became indebted to his sister, the complainant, by accepting the devises in his favor in his father's will, and by omitting (if he did omit) to do that which his father said he should do, or pay bis sister five thousand dollars, which sum he charged upon the property devised to his son. There was no primary responsibility on the part of the son to pay the money. He became a debtor, no doubt, by accepting the devises to him, and failing or refusing to "do what was required of him (if such be the fact), bat still he became a debtor only in respect to the property devised to him,-and even his personal contract to pay the money; will not make his per- sonal estate liable in the first instance, in exoneration; of the property in respect to which only he became the-debtor. The case of Mattheson vs. Hardwicke, already referred to, is con- clusive of the point, unless its authority can be shakes, Which I do not find anywhere even attempted. There can be no doubt, and the principle is not disputed, that the personal estate is the natural and primary fund for the payment of debts and legacies, even where they are charged upon the real estate descended or devised, and that the real is only an auxiliary fund after the personalty is exhausted. Such is the language of the Court of Appeals in Stevens vs. Gregg. But the question still recurs, whether, with regard to this debt, there was any original primary responsibility resting upon James D. Mitchell to pay it ? whether the personal obligation does not result from the devise to him, and his acceptance of the devise, and whether he did not become liable only in re- spect to the land devised ? If so, as we have seen, even his personal contract to pay the money would sot, in the case of his death, shift the primary liability from the real to the per- sonal estate. The assent of Mr. Chancellor Kent to the doc- |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
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