SPAFFORD & AL. vs. DODGE & AL.

alone must contribute to the general average. If the ship and cargo had been condemned at Gibraltar, the plaintiffs would have lost their whole freight for that voyage; they would have received nothing for the hire of the ship, after she left St. Ubes. And although the sum for which they are now to contribute is less than the actual amount of the hire in this case, yet that arises from the special contract which they made; and the result would be the same, if by that contract they should eventually have received nothing.

[*82 ]

*The defendants had no interest in the freight. If the voyage had been lost by a condemnation at Gibraltar, they would have lost nothing but their cargo. They ought therefore to contribute only for the value of the cargo. They had at that time paid nothing towards the freight of their goods from St. Ubes to Boston, and were not liable to pay any thing, if the property had all been lost at Gibraltar. And as they were not the actual owners of the ship, they would not have suffered if she had carried nothing on that voyage.

We are aware that this manner of apportioning the general average on the freight, and charging the whole of it on the plaintiffs, differs from that which was proposed by this Court in the case of Douglas vs. Moody & Al. (12) But in that case, as no general average was recoverable, the point was not necessarily involved in the determination of the cause, and probably might not receive so much consideration as if the facts had required the application of the principle. The eventual profit to the hirer, on the arrival of the ship at her port of destination, may be considered in some view as freight. But it is, in truth, only the fund out of which he pays the freight; and all that he earns above that sum is the mercantile profit upon his adventure. And as to the sum paid as freight, he pays only after he has received it by the safe arrival of the ship; and if she never performs the voyage, he pays nothing; so that in this particular he risks nothing. It is true that the hire or freight, to be paid to the ship-owner on the arrival of the ship, may be considered in some views as his profits on the adventure, and as resembling the expected profits on the cargo; and it is for this reason that, in some commercial codes, the freight is not considered as a vested interest or property, nor as the subject of insurance. But by our law, the freight is always treated as a distinct property, which, at the commencement of the voyage, is put into the common stock with the ship and the cargo. It is exposed to the like perils, is [*83] insurable like them; and the owner of it is interested, *in

(12, 9 Mass Rep. 48.

SPAFFORD & AL. vs. DODGE & AI.

proportion to its amount, in the successful termination of the voyage. He ought therefore to contribute, in that proportion, to all the expenses and losses incurred for the common benefit

EBENEZER SEAVER, Appellant, versus JAMES LEWIS AND WIFE.

Doubtful words in a will are not to operate the exemption of the testator's personal property from the payment of debts, and charging them on the real estate. Where the testator directed his debts to be paid, and, to enable his executors to discharge the same, if possible, without disposing of his stock on the farm, ordered certain unimproved lands to be sold, and the surplus arising from the sale, after all his debts were paid, to be equally divided between his four children, and gave all his houses, lands, wearing apparel, stock, and other personal estate, except what was otherwise disposed of in his will, to his two sons; — - held, that the personal estate, except the stock on the farm, was not exonerated from the liability of being first applied in payment of the testator's debts. — ED.]

THIS was an appeal from an order or decree of the judge of probate for this county. The facts in the case were as follows:

Ebenezer Seaver, deceased, made his last will on the 24th of December, 1784, appointing his wife and his son Ebenezer, the appellant, executors. After declaring it to be a disposition of his whole estate, he directs all his just debts and funeral charges to be paid by his executors, and then adds: "And to enable them to discharge the same, if possible, without disposing of the stock on the farm. I do hereby will and empower my said executors to make sale of all my lots of wild and unimproved land in the county of Hampshire, and to give and execute a good deed or deeds thereof in the law." He then devises to his two sons, Ebenezer and Joshua in fee, all his houses and lands in Roxbury, and all his wearing apparel, stock, and other personal estate, except what is otherwise disposed of in the will, to be equally divided between them. And after giving to his two daughters, Hannah and Mar garet, one hundred pounds lawful money each, he adds this pro vision: "And my will further is, that, in case there should be a surplusage of money arising from the sale of my unimproved lands in the county of Hampshire, after all my debts are paid, such surplusage shall be equally divided between my four children, Ebenezer, Joshua, Hannah, and Margaret."

Upon an administration account rendered by the said Ebenezer,

SEAVER, Appellant, vs. LEWIS & Ux.

and allowed by the judge of probate, there remained in [*84] the said Ebenezer's hands, as executor, the sum of £226 10s. 6d., after the payment of all debts and legacies; which sum included the proceeds of the sale of the said lands in Hampshire, they having produced a greater sum than the said balance.

The respondents, in right of the wife, who is the testator's daughter Hannah, claimed one fourth of the said balance, alleging that it was due to her, as the surplusage arising from the sales of the Hampshire lands after payment of the debts as directed in the will.

The appellant insisted that the said balance belonged to him and his brother Joshua, in virtue of the gift to them of the personal estate, alleging that the said lands ought to be first applied to the payment of debts in relief of the personal estate; and that, the said lands not having produced a sum sufficient for the payment of the debts, no surplusage had come to his hands for distribution, within the intent of the testator.

The judge of probate having ordered the said Ebenezer to account to the respondents for the said fourth part of the said sum in his hands, he appealed from the said order to this Court.

Morton, (Attorney-General,) for the appellant. Although it is not in a testator's power to exempt his estate from the payment of his debts, and regularly the personal estate is first to be applied to that object, yet he may otherwise direct, and appropriate the whole or a part of his real estate, as a fund, out of which his debts shall be paid. The testator in this case did so. His desire plainly was to save his personal estate for his sons, so far as his wild lands would reach for that purpose; constituting those lands a specific fund, out of which the debts should first be paid. (1)

Amory, for the respondents. Had there been no particular bequest of the personal estate in this will, this question would never have been raised; but that gift was to take effect only after payment of the debts. A testator, charging his real estate with the payment of debts, does not thereby hinder the application of the

personal estate first, unless such provision is expressly [* 85 ] * made. (2) Here was no exemption of any part of the personal estate, except of the stock; although the specific personal legacies may fairly be exempted by implication. WILDE, J., delivered the opinion of the Court. This case comes

(1) 2 Black. Com. 512, note 15, by Christian, cites 2 Bro. Chane. Rep. 60. (2) 3 Bro. Parl. Cases, 16, French vs. Chichester. -1 Bro. Ch. Rep. 144, Samwel 78. Wake.. Ibid. 459, Ancaster vs. Mayer.- Toller's L. of Exrs. 332.-3 P. Will 3241 Wils. 2.-2 Eq. Ca. Abr. 493.

SEAVER, Appellant, vs. Lewis & Ux.

before us on an appeal from a decree of the judge of probate for the county of Suffolk; and the question to be determined depends on the construction of the will of Ebenezer Seaver, deceased, under which the litigating parties claim. [Here his honor recited the several clauses of the will, as above.]

After the death of the testator, the lands in Hampshire were sold by the executors, in pursuance of the will, and the debts and legacies were paid; the executors still having in their hands a surplus of the aggregate fund, consisting of the proceeds of the sale of the lands, and of the value of the personal estate, excepting the stock on the farm and the testator's wearing apparel; one fourth part of which surplus the respondents claim, by virtue of the last provision in the will.

But the appellant contends that, by the true construction of the will, it must be understood that the intention of the testator was to charge the unimproved lands in Hampshire with the payment of his debts, in relief of his personal estate generally; and that the proceeds of the sale ought to be applied as the first fund for that purpose.

This position, however, cannot be maintained, unless it appears that such was the manifest intention of the testator. For by law the personal estate is the proper fund for the payment of debts and legacies; and must be so applied, unless it be exempted, either by express words or by necessary implication. Such an implication is supposed to arise from the specific bequest of the personal estate to the sons; and if it were absolute, and were not controlled by any other clause in the will, the implication would appear plain and obvious. But the whole personal estate is not given to the sons; there being an exception of such parts thereof as had *not been before disposed of. The disposition thus [86] referred to is probably to be found in the first clause of

the will; whereby the personal estate, with the exception of the stock on the farm, is made subject, as we understand the will, to the payment of debts and legacies.

The reason given for charging the lands is, that the debts may be paid, if possible, without disposing of the stock on the farm. This plainly indicates an intention to exonerate the stock, and the stock only. No other reasonable construction can be given to this part of the will. For if the testator's meaning had been to charge the lands in the first place, and that the personal estate was to go to his sons, should the funds arising from the sale of the lands be sufficient to discharge the debts and legacies, there could have been no difficulty in expressing such an intention distinctly and clearly; as by expressly charging the lands to that extent, or by directing

SEAVER, Appellant, vs. LEWIS & UX.

them to be sold at all events for the payment of debts, or by substituting the words personal estate for stock on the farm.

But no such intention is to be collected from any part of the will. The testator appears to have understood that his personal estate was liable for the payment of debts, and that it might be insufficient without including the stock, which he was desirous of preserving for the use of the farm. It being, however, uncertain what might be the amount of his debts, he provides for all probable contingencies. If the personal estate should be more than sufficient for the payment of debts and legacies, the surplus was to go to his sons; and if not sufficient, the fund arising from the sale of the land was to be applied, so far as might be necessary, to make up the deficiency; and the residue was to be divided between his four children. This seems to be the natural and obvious construction of the will, and the only one which can comport with the peculiar phraseology of the clause first cited.

It has been argued that an intention inconsistent with this construction is manifested by other parts of the [* 87] * will. For, as the testator intended to dispose of his whole estate, and as he made no disposition of his Hampshire lands, in case the personal estate should be sufficient to pay the debts, the inference drawn is, that it was his intention that those lands should be sold at all events, and applied to the payment of debts.

But it must be recollected that the testator seems to have apprehended that his personal estate would not be sufficient to discharge his debts; and even that the interposition of the sale of his Hampshire lands might possibly not save the stock. He might therefore well suppose that the sale of those lands would be necessary, on the construction we adopt; and, in fact, they were so. He accordingly disposed of the surplus of the proceeds of the sale, instead of devising the lands.

Supposing, however, that the construction of the will is doubtful; still the appellant ought not to prevail; it being a rule of law, that no doubtful words in a will shall have the operation of exempting the personal property from the payment of debts, and of charging them on the real estate.

This principle alone is decisive; and will warrant the affirmance of the decree of the judge of probate.

78

Decree affirmed.