The opinion
Sanderson, J., concurring specially:
Sections fifteen and twenty-two of the Act concerning wills, and sections one hundred and fourteen, one hundred and fifteen, one hundred and sixty-three, one hundred and seventy-six, one hundred and seventy-seven, one hundred and eighty, and one hundred and eighty-one of the Act concerning the settlement of the estates of deceased persons, supply the law applicable to the general subject, and section twenty-two of the former and one hundred and eighty of the latter Act prescribe the rules applicable to the special facts of the present case. By section twenty-two of the Act concerning wills, lands acquired subsequent to the publication of the will may be devised in this State, and, by reason of this provision, devises of real estate are put upon the same level with devises of personal estate, with respect to the question whether they are to be deemed specific or general, when the legal effect and operation of a given will comes to be determined.
By the one hundred and eightieth section of the Act regulating the settlement of the estates of deceased persons, it is provided that specific devises or legacies shall be exonerated from the payment of debts, if the remainder of the estate is sufficient for that purpose. A testator may in terms charge a portion of his estate with the payment of his debts, or he may *617 in terms exonerate a portion, leaving the remainder to be used for that purpose. In such a case the provisions of the will furnish the rule of administration, and are to be observed so far as the exigencies of the case will permit. (Sec. 177.) In view of these provisions of the statute, the questions presented by a case like the present are : First, does the will in terms make any provisions for the payment of the debts ? and second, are there any specific devises or legacies which are to be exonerated from the payment of the debts if the exigencies of the case will permit ?
It is clear, on inspection, that the will in this case makes no provision for the payment of debts in terms, for nothing is said upon that subject. It is also obvious that it contains no specific devises of personal or real estate. The will disposes of the entire estate, real and' personal, of which the testator may be possessed at the time of his death. Ho part of it is distinguished in any manner except by the terms real and personal. The latter, whatever it may chance to be at the date of the testator’s death, is devised in general terms to his brother Selim. One half of the former, whatever it may chance to be, is also in general terms devised to Selim, and the remaining half to the other parties named, share and share alike. To hold that these or either of them are specific devises within the meaning of the one hundred and eightieth section, and therefore exonerated from the payment of debts, would be to hold that every devise is specific unless accompanied by an explanatory statement that it is not so intended. Such being the true interpretation of the will, it follows that the debts are to be paid in the mode provided by the statute where such are the conditions.
By the one hundred and fifteenth section of the Act regulating the settlement of the estates of deceased persons, it is provided that the personal estate shall be first chargeable with the payment of the debts, expenses of administration and allowances to the family of the deceased, and, if the personal property is insufficient for that purpose, that the real estate, *618 or so much thereof as may be necessary, may be sold in the manner provided by law. To this end the possession of the entire estate, both real and personal, and the accruing rents and profits of the former, is given to the executor or administrator until the final settlement of the estate, or until the estate has been delivered to the heirs or devisees by order of the Court, which may be done before final settlement, as provided in sections two hundred and fifty to two hundred and fifty-seven, both inclusive. (Sec. 114.) Such is the general rule, and it indicates the general policy and intent of the statute. This general rule is subsequently modified to suit special conditions. If any part of the real estate has to be sold, and a portion of it has been devised and not specially charged with the payment of debts, and a portion has not been devised, the latter is to be first sold. (Sec. 163.) So the order in which the estate is to be applied in the payment of debts, under the statute, is : First, personal estate ; second, land specially charged with the payment of debts ; third, land which has not been devised and is taken by the heirs; and fourth, land devised.
The claim of the respondent in this connection, that the rents and profits of the real estate, coming in subsequent to the death of the testator, are personal property, in the hands of the executor or administrator, within the meaning of the foregoing provisions of the statute, is without foundation. Under the Statute of Descents, and under the will, if there is-one, if not otherwise provided, the entire estate, both real and personal, with all accretions, vests in the heirs and devisees immediately on the death of the testator or intestate, subject only to the lien of the executor or administrator for the purposes of administration, and hence, if not required for that purpose, the subsequent rents and profits go to the party who takes the land from which they issue. Undoubtedly, after ithe personalty, the rents and profits must be exhausted before the land can be sold; for although, so far as I have been able to discover, the statute contains no express provision to that effect, yet an intent not to sell the lands, except as a last *619 resort, is shown by the whole tenor of the Act. This intent is especially shown by the provisions of sections two hundred and fifty to two hundred and fifty-seven, both inclusive, where it is provided that the heirs, devisees and legatees may be put in the possession of their respective shares upon their giving bonds for the payment of their proportion of the debts, in which event, of course, the executor or administrator ceases to be entitled to the possession of the land or its rents, and thereafter each heir, devisee or legatee comes into the perception of the.rents which issue from his share.
Where, as in the present case, the entire estate, both real and .personal, has been devised without any provision in the will as to the payment of debts, the course to be pursued is described in the one hundred and eightieth section. It is there provided that: “The estate, real and personal, given by will to any legatees or devisees shall be held liable to the payment of debts, expenses of administration and family expenses, in proportion to the value or amount of the several devises or legacies, except that specific devises or legacies may be exempted, if it shall appear to the Court necessary to carry into effect the intention of the testator, if there shall be other sufficient estate.” As we have already seen, the will contains no specific devises or legacies, and it results that the devisees under the will, or rather their respective shares, must contribute to the payment of the debts and expenses in proportion to their value.
For these reasons I concur in the judgment.