HAMMOND v. HAMMOND. 389

In the case under consideration, it is clear, that the creditors of
the late Philip Hammond could only obtain satisfaction 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 tes-
tator have been lawfully passed into their hands. But the devi-
sees and legatees, under the will 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 mortgagees,
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 satis-
faction. 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 dike. But I understand the
testator differently.

As I have before remarked, it is perfectly evident that the testa-
tor 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 indicated
an intention, that the relative value of the divisions he had made,
should not be disturbed. The language used in the codicils, giv-
50 v.2