Morris's Executors versus M'Connaughy

Morris’s Executors versus M'Connaughy. JAMES M'CONNAUGHY mortgaged to the plaintiff's Testator, a certain plantation in Chester County; and then devised all his estate, consisting of many other tracts of land, to his mother Jannet. Jannet afterwards died, having devised the the tract in mortgage to her niece Mrs. Darlington, and the residue of her estate to her Executors. The plaintiff having obtained judgment on the bond which accompanied the mortgage, a motion was made that the sum due should be levied on the land mortgaged; and residue of the estate should be discharged. After argument several times, the Court-now delivered their opinion as follows : [MAJORITY — By the Court:] By the Court: —We are of opinion that all the lands which were the property of James M'Connaughy, deceased, (upon which we understand the sheriff has already levied) shall contribute, according to the value of the several tracts, to pay off and discharge the debt, interest, and costs in this action. We consider real property in Pennsylvania as assets for the payment of debts ; and it is always, in case of the deficiency of personal property, to be applied to discharge such debts. It does not appear from the Will of Jannet M’Connaughy that her intention was, that Mrs. Darlington should take the land devised to her cum onere. It is, however, equally subjected to the payment of a proportion of the debt with the other lands of James M'Connaughy, remaining undisposed of Mrs. Darlington claims as a specific devisee ; the residuary legatees cannot be considered as such. To charge the lands devised to them with a rateable part of the debts, would not disappoint the true intention of either of the Wills ; but to charge the lands devised to Mrs. Darlington would evidently produce that effect. We are, therefore, of opinion, that all the real estate of James M'Connaughy should rateably contribute. Bradford, Justice, having been of counsel in this cause, took no part in its decision.