John Archer and John W. Stump, Executors of John Stump, Complainants and Appellants, vs. Mary Deneale, Widow and Executrix of George Deneale deceased, Charles T. Stuart and Ann Lucretia his Wife, Mary Catharine and Nancy P. Deneale, Children and Representatives of the said George Deneale, Defendants and Appellees

John Archer and John W. Stump, Executors of John Stump, Complainants and Appellants, vs. Mary Deneale, Widow and Executrix of George Deneale deceased, Charles T. Stuart and Ann Lucretia his Wife, Mary Catharine and Nancy P. Deneale, Children and Representatives of the said George Deneale, Defendants and Appellees. The testator, residing and owning real and personal estate in the county of Alexandria, District of Columbia, by his will gave “ all his estate, real and . persois.il, to his wife during her life, for the use and purpose of raising arid educating his children,” each child at the age of twenty-one to be entitled to an equal portion of his estate, real andpersonal; subject, each, to a deduction of one-third for the maintenance of Ins wife. He recommends his wife to sell the negroes <br a term of years, and directs “ an appraisement” only of “his estate” shall be made, that no sale of the furniture shall be made ; arid then states that he is indebted to no one, and proposes to continue' so,” that he is surety for his brother, for which he holds á deed of tost on his property, sufficient, he'-'ho'pes, to pay-the same, and directs that his ■ “ estate shall not be' sold to pay these debts; until the property so divided shall be sold,” when his “estate must be charged with any deficiency, and directs that his executors shall not give security, as his own estate did not require it.” This will does not charge the real estate of the testator with his debts. {588} The word “estate” is sufficiently comprehensive to embrace property of every description, and will charge lands with debts, if used with other words which indicate an intention "to charge them; but if used alone, without such intent, they will not have such operation. {589} under the laws of Virginia relative to the estate of deceased persons, lands are never appraised. {589} THIS was an appeal, by the. complainants, in a bill, filed in the Circuit Court for the county of Alexandria, - upon which a decree was rendered in favour of the defendants,” appellees in this Court. . The complainants by their bill sought to make the real estate of George Deneale'liable for the payment of their debt. They set.forth, that-they ,have,a subsisting judgment against the ex--eculrix of George Deneale; for' the sum of §7957'58,, besides interest and costs. ■ That, this judgment, was founded bn a contract between James Deneale and George Deneale, and the testator of the complainants. That §2913 65. of this judgment. was satisfied by á sale of the property of James- Deneale the principal,,leaving, a balance.due on the judgment pf §5000. The bill charges that George Deneale left a considerable estate real an,d personal. ' That the personal estate has been exhausted in the payment of the* debts of the said George -Deneale, in a regular course of administration, — and that there is •nothing left to pay their debt but the real estate, which the bill alleges is expressly charged by his will with the payment of it, in a certain event;-.which event'it is alleged has happened, to witr that-the property of James Deneale has been sold, and the deficiency of it to pay the debt ascertained. ■ The bill prays an account of the personal, estate and. of the balance due to the complainants'on their said judgment, ’and' that so much of the real estate of the said George Deneale as will be necessary to pay 'what”is due them, may be decreed in pursuance to his will, to be sold, and the proceeds applied to pay that balance, and for general relief.. Mary Deneale the executrix, in her answer admits the judgment-against the testator as security for James Deneale:'That the said. James Detieale had reduced the claim considerably below - what .is demanded by- the bill. That her testator died possessed of a large personal estate, consisting principally of bank and other stocks; .standing in' hi's name; which'have been claimed by-Conway Whittle and others', as-specifically belonging io them, by a suit depending in the Court of Alexandria county. She states, if the bank and other stock claimed as before stated shall be decided to belong -to the estate of her testator,, there will be personal estate sufficient to pay Ins debts. If they should be decided to belong to the said Whittle hind-others, then there will not be a sufficiency of .personal estate to pay- all his debts, if his estate is bound to pay this demand of the complainants. . She denies that the real estate of her testator is charged in any event with.the payment of the debt due to the complainants. That he. never intended to make any such charge .upon it — and that upon a fair construction of. the will no such'charge, is authorized by it. The defendant Nancy R> Deneale^ by.her guardian, ad litem* answers substantially as the executrix-has. To their answers is a general replication and issue'. The other defendants being non-residents,' there is an order of publication against them, and the'bill taken for confessed'. The commissioner made his report, iv-hich shows that lie has charged'the executrix with the appraised value of the.personal estate, including 'the stocks, instead of the actual value as. proved by the sale of all the personal .estate, ex.cept the stocks., which are claimed by others. It will appear from the-circumstances detailed by the commissioner; if the stocks are excluded, that- the executrix has- paid -more than the value of the personal estate, including' debts due to her'testator and received by her. ■ - The will, which is made an exhibit, is dated 13th of February. 1815, and is admitted.to record 11th July, 1818. By his will the testator gives to his wife;“ all his estate real and personal during her life for the use arid purpose of raising ' and educating his children until they respectively are twenty- , one.” He directs'that each child shall, at that «ge, become entitled to an equal portion of his estate both real and personal, “ subject each to a deduction of one-third of thé same” 'to he retained for the support and maintenance of his wife. He recommends to his wife to sell th&,'negroes for a term of years. He directs that an appraisement only of his ‘‘estate”- shall'be made; that no sale of furniture shall take place. He then states that he is indebted to “no one, and proposes to continue so.” He states that he is security for liis brother James for two sums, for which he has a deed-of trust pn his property, sufficient he hopes to pay the same.' He then directs that hisestate shall not be sold to pafthese debts until the property .so deeded shall be sold” — when ■ his ‘f estate must be charged with any deficiency. ” He directs that his executrix and executor should npt give security, alleging that his own debts did not require' it... He closes his¡ will by giving a gold ring of fifty dollars value to a friend, and a bank share to the Masonic Lodge. After a. hearing on the bill, answer,- the will of George De-neale, and the report of-- the commissioners; the Circuit Court dismissed tjie bid with costs. The’only question for the decision of the Supreme Court-was whether George Deneale had, by his will, charged his real estate with the-paymentof the debt due to the complainants below, the appellants in this Court. Mr. Swann-for the-appellants.— The testator charges his .estate with -the residue of the debt which may remain due to'the executor of Stump. The-words are— “ I-direct that my estate shall not be sold to pay these .debts until the property so deeded shall be sold,-when my estate must be charged with any deficiency. ” The term “ estate,'” includes real as well as personal property., and where'there is nothing to qualify the word “estate”it will carry real as well as personal property. 8 Vez. Jum 608. -Having then said his “ estate” must be charged, we must look into the will, and see whether there is any thing' there to qualify the term. The testator devises to his.-wife “all his estate,” both real and' personal, during hqr life., ’ The reversionary interest is left to take its legal.course. ■ He then directs “ that an appraisement only of my estate he made, and that no sale of furniture shall take place. ” The meaning of thig would depend upon extraneous circumstances. Estate here was intended to -be the personal estate. Then comes the clause, “ my estate must be charged with the deficiency.” What.was his meaning? The term estate is . competent to effect this intent. In making a construction, the .Court will, make a man do what is morally just. 3 Vez. 551. Whenever a testator wills that his debts shall be paid-, that rides ■ over every disposition, whether-against heir or'devisee. S Vez.' 379. Mr. Lee for the appellees.— -. The first question is, what was the-real intention of the testator? That intention must prevail." 3d. It is alleged that the direction — that on a certain contingency his “ estate must be charged with any deficiency,” was to pay the particular debt of the plaintiff; and that the word “estate” included, his real estate. It is true that there are many cases' in which the -word “ estate” in a will,.has been held to convey “ real estate” even in. fee simple. But these words, and every form of expression, whereby a testator declares his will in respect to the disposition of.his property, must submit to the rule,- which'requires.a will to be construed agreeably to the intention of the testator, where ■ • it can be collected from'the whole will. 2 Roper on Wills, 619. The case of Woolman vs. Kemvorthy, 9 Viz. 137, is very analogous to the present case.' The general principle decided in that case, was, that under the general word “estate” in a will, real- estate will pass, unless restrained as was in that instance- by the intention collected from the whole will. Then construe the will of Mr.' Dcneale by this rule, and by these cases; it is plain that he has not charged his real estate, in any event, with the payment of this debt- .Cited also Shaw vs. Bull, 12 Mod. Reports. [MAJORITY — Mr. Chief Justice Marshall. delivered the opinion of the Court:—] Mr. Chief Justice Marshall. delivered the opinion of the Court:— This suit was brought in the Circuit Court for the District of Columbia, sitting in the county of Alexandria, to subject the lands of George Deneale to the payment of a debt for which he. was surety. The sole question arises on the construction of his will. The'complainants contend, that it charges his lands with his debts. By his will, the testator gives to his wife “ all his estate real and personal, during .her life, for the use and purpose of raising and educating his children,' until they respectively are twenty-one.” He directs, that each child shall, at that age, become entitled to an equal portion of his estate, both real 'and personal, '“subject each to a deduction of one-third of the same,” to be retained for the support and maintenance of his wife. Jle recommends, to his wife, to sell the negroes for a term of years. He directs that an appraisement only of his estate “ shall be made, that no sale óf furniture' shall take place.”. He then states, that he is indebted to no'oné, and purposes to continue so. He states, that lie is Surety for his 'brother- James, for two sums, for which lie has a deed of trust on his property, sufficient, he-hopes,-to pay-the same. He then directs that his estate shall not be sold to páy these debts, until-the property so, deeded shall be sold, when -his estate-must be charged with any deficiency.' He directs that his executor and , executrix should not give security, as.his own debts did'not' requireit., That the word “ estate” is sufficiently' comprehensive to, embrace property of every description, and will charge, lands with' debts, if used with other words which indicate an intention to charge them, is a proposition which cannot be" contro-. ver.ted. As little.is it to be'denied, that the word alone, -if not used with an intent to subject the lands of the testator to the payment of his debts, cannot- have that effect. In the will under consideration, thé t-éstator alludes in-two instances to his property, generally; in both hfe uses the-words “estate,” both “real and pérsonal.” In the next instance, the word estate is introduced alone,.in the clause which follows: “ item, I do hereby direct,-that an appraisement only of my estate be made, and that no sale of furniture shall take .place.” In Virginia, lands are nevér appraised, and the law directs a sale of all perishable, articles. When, therefore, the testator directs that an appraisement only of his estate be made, and that no. sale of furniture shall take plaoe, he obviously applies • the .term, exclusively, to that kind of property, the appraisement of which is directed by law, and is usual; and, by adding the word “ only,” restrains his executors from selling, that property which is directed by law to be sold. In this clause', the word estate is plainly confined to' personalty. He then -speaks of the debts for which he is- surety for Kis brother James, and directs that his “estate” shall not be sold to pay .these debts, until the property conveyed to,'him in trust shall be -exhausted. This direction is obviously restrictive. It restrains the executors from using a power'.they'possess under the'law. That power is to sell the personal estate for the payment of debts, but it does not extend to the sale of lands; con-sequently, the word estate, in this' place, also designates only personal estate. After this prohibition to sell his estate; until the trust property should bé all applied to the object, he adds, “ when my estate must -be charged with any deficiency.” There is no foundation for the Opinion, that the testator has used the word estate, in this part of the sentence, in a.different sense from that in which it was used in the sume' sentence immediately before, while treating of the same subject. The. same estate, the sale'of which he had just forbidden until a particular event should take' place, must, he says,, be sold wheh that evént shall take place. He means only, his personal estate* .Jt would, we think, be1 an entire perversion of the language used by the testator, to.construe these words a charge upon his'estate. He does not intend to create any liability, which thé law had not created. - When the trust property shall be exhausted, his estate, he says,' “must be charged with the deficiency.” He can no longer prevent its sale.' We think- there is no error in. the decree, which declares* that-the will of George Deneale does not chárge his real estate with -his debts, and that the. bill of the complainants- be dis-, missed, with Costs, 'and that the said decree be affirmed.