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debt of the vendee as that part of the purchase money covenanted to be paid directly to his immediate vendor. There is no distinction between the two engagements; and the early English cases, cited heretofore, holding that, where the incumbrance is to be paid off as a part of the purchase price, the incumbrance becomes a charge primarily upon the personal estate, are unquestionably to be regarded as sound upon principle, and commanding as authorities upon this court.

our independence, is that of Parsons v. Free- | price would be just as decidedly the personal man, decided in 1751 by Lord Hardwicke. As the case is reported by Cox in his note to Evelyn ▼. Evelyn, 2 P. Wms. 664, it was this: A purchased an estate for £90 which was at that time mortgaged for £86, and he covenanted to pay £86 to the mortgagee and £4 to the vendor. The Lord Chancellor held that, although the covenant was with the vendor only, and the vendee's personal estate was not therefore liable in that respect to the mortgagee (which would not be the law in this State), yet the words were sufficiently strong to show an intention in the vendee to make it his personal debt. It was accordingly held that the personal estate must exonerate the heir.

It would seem, then, when the vendee has assumed the debt in such a way as to give to the creditor a right of action against him or his representatives, that this, of itself, would be a sufficient adoption, and sufficient demonstra. tion of his intention to put such a debt on the footing of a personal liability. But this is not now decided, under the well settled principles of equity, as administered in courts of equity. When all these artificial distinctions as to the origin of the debt have been adopted, the debts which have been paid by a resort to a lien on the land of the heir were the personal debts of Mr. O'Conner, and the personal estate was the primary fund for their payment. The costs taxed to the heir in the foreclosure suit are properly payable by the administratrix. It was the duty of the administratrix to have exonerated the heirs' land. These costs have been thrown upon the heirs by reason of the failure of the administratrix to relieve the heirs before suit. The costs of this cause will be paid by the administratrix, and the decree of the chancellor in all respects affirmed.

We have not deemed it necessary in this opinion to consider how far we would be willing to be governed by the highly artificial rules by which an incumbrance is held to be primaThese three earlier cases are not by any sub-rily dischargeable out of one fund or the other. sequent cases overruled. When we analyze the reasons upon which they rest, it will be seen that the subsequent cases are not even in conflict. The ground upon which the land, in any case, is held to be the primary fund is not that the contract is a contract concerning realty, or even for the benefit of realty. In some of the cases the courts, in endeavoring to get at the intention of the purchaser, in order to determine whether the one fund or the other should be the primary fund, have, as a circumstance, referred to the fact that the engagement which had been entered into was for the benefit of the incumbered land. The suggestion in argument that the intent is to be determined by an inquiry as to whether the debt assumed, or the promise to pay, or the covenant to discharge was for the benefit of the vendee's personalty or realty, is not supported by the cases. If it were so, then money borrowed to buy land, and secured by a mortgage on land, would be primarily a charge on the land. So the notes of the vendee, executed to his immediate vendor for the purchase price, would be a debt incurred for benefit of the land, and hence primarily a charge on the land. This extreme has never, it is believed, been held by any court. On the contrary, the English notes to Leading Cases in Equity say: "Again, if a person bought an estate, and thereby contracted a debt with the vendor, and for the purpose of securing it gave a charge on the estate, and entered into a covenant to pay it, it would be the personal debt of the purchaser, and his personal estate would be pri marily liable to pay it; and it will make no difference whether the purchase money was to be paid in a gross sum, or from time to time, by way of annuity for life. It is equally a debt and charge upon the personal estate, and in either case the personal estate is the primary fund to pay it." Volume 1, pt. 2, p. 904 (4th ed.); Yonge v. Furse, 20 Beav. 380, 383.

So, under the English Act of 1854, declaring mortgaged land in all cases the primary fund for the discharge of such mortgages, unless the decedent, by will, expressly declared otherwise, it was held not to make a vendor's lien a primary charge upon the land. Hood v. Hood, 26 L. J. N. S. Ch. 616; Barnwell v. Iremanger, 1 Drew. & S. 255. The Act was subsequently amended so as to include such liens.

A debt created for purchase money of land not, therefore, being within the rule contended for, it would seem to follow, without discussion, that a debt assumed as a part of the purchase

Hon. B. J. Turner sat, upon the hearing of this case, in the room and stead of the Chief Justice, who was absent; and he, taking part in the decision of this cause, did not agree with the conclusions here reached, and has filed a dissenting opinion.

Turner, Sp. J., dissenting:

The complainant's assignment of errors correctly states the material facts involved in this controversy, and the same is here copied, viz.: "Thomas O'Conner died intestate, in Knoxville, October 19, 1882, without issue, leaving a widow (the complainant), his sole distributee, and his brothers and sisters (the defendants), his heirs-at-law. He left a valuable real and personal estate, and was in debt about $500,000. His widow administered on his estate, and has paid all the debts, except about $10,000 and some interest; and the balance of the personal estate is merely nominal, having no market value. The defendants have realized over $200,000 in cash from the real estate, and will realize $50,000 more. At the time of said O'Conner's death three parcels of his real estate were incumbered with purchase-money liens, as follows: first, Sanborn lot, about $1,100; second, the Moffatt farm, about $5,000; third, the one-half interest in the Williams McKinney place, about $13,000. About $10,000 of the lien upon the third purchase was resting upon

it at the time O'Conner purchased it, and was for purchase money due from O'Conner's vendors to Samuel McKinney, from whom said vendors had purchased it. The $3,000 was the amount which said O'Conner owed his vendors upon this purchase, who conveyed the interest held to O'Conner, retaining in the deed a lien for the payment of the $3,000, also a recitation that said O'Conner assumed and agreed to pay the $10,000 incumbered on the land to McKinney. O'Conner accepted the deed, and went into possession. The other liens were for purchase money due direct by said O'Conner to his vendors, and said liens were retained in the deeds conveying him said real estate. The administratrix did not pay off said liens out of the personal estate, but the lienholders foreclosed them by sale of the property, and the proceeds of the sales were applied in discharge of said liens. The heirs demand that the administratrix shall reimburse them to the extent that proceeds of said lands were applied to the discharge of said liens," etc. The chancellor decreed that the administratrix was bound to reimburse said heirs this money out of the personal estate, and rendered judgment against her for about $24,000, and all the costs of the several causes in which said liens were enforced. The complainant has brought the case here, and has assigned three errors to the action of the court below. Complainant's second assignment of error is: "The $10,000 purchase money due from O'Conner's vendors to McKinney was a primary liability resting up on the land; and that O'Conner's understanding as to said incumbrance was merely secondary; and, as between the heirs and personal representatives, his personal estate is not liable.'

the purchaser's liability merely secondary, and the real estate-the burden bearer-primarily liable for the discharge of the incumbrance. We refer to the able and exhaustive opinion of Chancellor Kent in Cumberland v. Codrington, 3 Johns. Ch. 252 et seq., in which he collects and reviews the English adjudged cases bearing on this question during a period of more than a century.

The most distinguished law-writers in England concur with Chancellor Kent in the result reached by him in his review of the cases. Mr. Spence says: "The rule" (the one making personalty the primary fund) "only applies to those debts which were properly the debts of the testator. In all other cases, where the real estate was the original debtor, and came to the possessor as such, it must continue to bear the burthen. Even though testator, when he purchased the estate, entered into a collateral contract or covenant, or gave a security for payment of the debt, the estate burthened must first be resorted to." 2 Spence, Eq. Jur. 335.

Mr. Powell, on Mortgages, says: "A purchases an estate subject to a mortgage, and covenants with the mortgagee to discharge the same. A's personal estate is not liable to exonerate the land purchased" (this author, continuing, in the same connection adds), "the personal estate not having received any addition to its funds by reason of the mortgage."

These citations from Powell and Spence are approved by Sir William Grant in Hancox v. Abbey, 11 Ves. Jr. 179.

It will be noted, these two eminent masters of the law go further than the case in hand. It does not appear from the record that the intestate gave any bond, covenant or other obligation to the incumbrancer, McKinney, to discharge his debt.

Williams, on Executors, says: "Again, if a man buys an estate subject to an existing mortgage, the lands remain the proper fund for its discharge, and the heir or devisee cannot throw the debt upon the personalty, as the primary fund for its payment." 2 Williams, Exrs. 1535, 1536; 2 Roper, Legacies, 957, 958; 3 Jarm. Wills, 477; Adams, Eq. 529.

This precise question has not heretofore been before this court, and is particularly an open one in Tennessee. Our code system for administering estates of decedents does not provide for the state of facts presented by this assigned error. We have the opportunity of determining this question under the light of adjudged cases in courts of last resort, and gaining from them whatever of wisdom they may afford. The Chancery Court of England, more than two centuries ago, held, where one 2 Redfield, on Wills (p. 878), after stating the acquired real estate already incumbered, if he rule making the realty, incumbered when acdid no more than assume or undertake to dis quired, the primary fund for its payment, says: charge it, as between himself and his vendor, "In order to make the purchaser's personalty that the real estate so acquired contained the primarily liable, the purchaser must by conprimary fund for its payment, and the personal tract make himself personally liable, and directliability of the purchaser was auxiliary, merely.ly liable, to the owner of the incumbrance; and This proposition received the approval of its finest judicial minds, and was never questioned by them. Some uncertainty and collision in the adjudication of the English High Court of Chancery came in when it was attempted to determine what amount of contracting with the owner of incumbrance by the purchaser would make his (purchaser's) personal liability primary, and not secondary. Some of the judges held that the last purchaser or taker entered into a contract with the prior incumbrancer, and bound himself to discharge it; or, if the incumbrance was deducted from the gross price, at which price he purchased,-then his liability was primary. But, though the last proposition was supported by many fine law-pt. 2, p. 922. yers, the weight of the adjudged cases in England was against it. The better opinion held

even a covenant or bond for the purpose will not be sufficient, unless accompanied with circumstances showing a decided intention to make it thereby personally his own. This rule prevails in most of the States of this Union. Only three have attempted to vindicate a different rule, and in those three States there is no separate chancery court." Coudert v. Coudert, decided in 1887, and reported in 43 N. J. Eq. 407, 4 Cent. Rep. 132, is to the same effect. See also Mount v. Van Ness, 33 N. J. Eq. 264; Sutherland v. Harrison, 86 Ill. 366; Hirst's App. 92 Pa. 494; Bisph. Eq. § 348; 3 Pom. Eq. Jur. 1206; Story, Eq. Jur. §§ 574-576, 1248, 1248e; 2 Lomax, Exrs. 413; 1 Lead. Cas, in Eq.

In the case in hand, the intestate had no negotiations with the owner of the incumbrance

touching it in any particular. He gave no note or other obligation to his vendors for the payment of the debt upon the land, or its purchase. The deed conveying him the land contains a recital of the existence of the incumbrance, and intestate's assumption and promise to pay it; and the intestate accepted the deed, and went into possession of the land under it. "This is the head and front of his offending" in this di rection. It will be noticed that the principle applicable to these facts has not been questioned in England or the States of this Union, excepting this, during a period of 200 years, and that there has been no conflict upon it, but only upon the question, What acts of the purchaser will make the incumbrance his debt, and his personal estate primarily liable for its payment? and that the weight of authority upon this phase of the question was adverse to the primary liability of the purchaser.

Sir William Grant, in Lechmere v. Charlton, 15 Ves. Jr. 198, says: "Where a person becomes entitled to an estate subject to a charge, and then covenants to pay it, the charge still remains primarily on the real estate, and the covenant is only a collateral security, because the debt is not the original debt of the covenantor." It is well settled by the ablest courts and lawwriters in this and the mother country that the personal estate will not be primarily liable unless the testator has not merely made himself answerable for the payment of the mortgage, but has made the debt directly and absolutely his own, and has in some other way manifested an intention to throw the burden on the personalty, in ease of the land.

We are aware that it has been objected that the high authorities cited to sustain the principle laid down above are not Tennessee authorities, and therefore are not binding on this court; that we have a system of statutes of our own regulating the administration of decedents' estates, and the system, as explained by our adjudged cases, should determine and settle the question raised by the second error of complainant's assignment. Is this objection well taken? There is no provision of our Code touching the administration of estates that provides for a case circumstanced as is the one in hand. It is not a creditor seeking, under these laws, to subject realty to sale, in order to pay his debts, nor an administrator or executor, for the creditor, seeking to reach realty as a means of paying a debt of a decedent. The creditor enforced his lien for purchase money in the courts, and had sale and payment of his debts from the proceeds of the realty. The heir-at-law now asks to be reimbursed the sum paid from the proceeds of this land. The question of his prayer depends upon the equity of his case, and whether bis land was the primary fund for the payment of the debt paid by his inheritance. Our Code makes both real and personal property assets for the payment of debts,-the latter the primary, and the first the auxiliary, fund for payment,-unless this order has been changed by the decedent in his life, as between legatee or distributee on the one hand, and the devisee or heir at law, on the other. Our Code and the adjudged cases of this court permit the decedent to determine which shall be the primary, and which the auxiliary, fund for paying debts and legacies. His intention or pur

pose thereupon, either express or by necessary implication, is sufficient to control the question, provided its latitude is reasonably apparent. We are not shut up to a will alone for this intent. We may get it from the res gestæ, the facts of the transaction connecting the decedent with the incumbrance, it may be express or by necessary implication. Bisph. Eq. §§ 347, 348. It is to be noted that the judges in the cases cited considered and interpreted the facts as transactions, to find proper evidence of the decedent's intentions to charge his personalty in case of the burdened realty. Lord Cowper, in Bagot v. Oughton, 1 P. Wms. 347, after detailing the facts of the transaction, said: "The covenant was an additional security, for the satisfaction only of the lender, and not intended to alter the nature of the debt."

Chancellor Kent (3 Johns. Ch. 282), after saying there must be a direct dealing with the owner of the lien debt, adds: "And even that is not enough, unless the dealing with the mortgagee be of such a nature as to afford decided evidence of an intention to shift the primary obligation from the real and personal fund."

2 Story, Eq. Jur. § 1248h, on the same point, has this language: “And even a covenant or bond for the purpose will not be sufficient, unless accompanied with circumstances showing a decided intention to make thereby the debt personally his own."

Redfield, on Wills, in nearly identica! language, lays down the same rule.

The inquiry is not, Did the decedent charge the McKinney land primarily with the $10,000 incumbrance? This debt had been fastened upon it before intestate's purchase, but it is said that O'Conner intended to relieve the land by throwing upon his personalty the primary liability of its payment. If we are precluded from considering and interpreting the facts of the purchase for the answer to the question (he dying intestate), we have no evidence of an intention to exonerate the land with his personalty; and, however, clearly, the heir cannot call on the distributee to reimburse him for the discharge of the McKinney debt. But, considering the facts of the purchase of the McKinney land by the intestate, is there proper evidence of intent to exonerate? The vendor's lien in favor of McKinney was fastened on the land, being retained on the face of the deed to intestate's vendors. O'Conner made no contract with the lienholder; gave no note or other obligation to him for it. He merely accepted a deed from his vendors, which recited the existence of the incumbrance, and that intestate assumed and agreed to discharge it; but nothing was said or done by him in the direction of its discharge. This fixed lien was left by the parties undisturbed,-a primary charge upon the land.

It is clear this purchase was made for the benefit or increase of the real estate. This fact, under the old rule, which will be discussed below, was evidence of an intention and purposeon the part of the purchaser that the land purchased should be the primary source of its payment. Evidently, the intestate intended his personalty to be in aid of the realty merely, for the reasons stated under the high authorities cited. I hold that the McKinney land was first liable for the payment of the McKinney

$10,000, and interest, and cost, and that the | nor decision of this court settling the identical heir is not entitled to a recovery against the administratrix for reimbursement therefor. We feel less certain in disposing of the three 1,000-dollar notes given by the intestate to his vendors on the purchase of the McKinney land. These notes are for an additional sum, needed to acquire the half of the McKinney land, were in aid of the purchase, and come under the rule laid down by Mr. Lomax, as follows: "So, in cases where the land comes to the deceased by descent or devise [will perchance vary the rule], his concurrence in the mortgage deed, and his personal covenant for the payment of the money, on the assignment or transfer of the mortgage, will not alter the burden, as between his real and personal representatives. And the same principle applies if other estates are added to the security, on a further sum lent, or if there be a covenant on his part increasing the rate of interest. And it seems that, if the sum borrowed by him and added to the original mortgage be comparatively small, equity will not consider that he had different intentions as to these different terms, but will charge the real estate with the whole." See 2 Lomax, Exrs, marg. note, 227, 228.

question presented here; that the question is equitable, to be settled by deciding where the superior equity is; that complainant's contention is supported by the superior equity, the controversy being between the heirs at law and distributee, creditors and legatees having no interest therein. On the last analysis, lying back of the fact of a "personal contract," on which the Massachusetts cases put the primary liability on the personalty, is this inquiry: Was the contract for the increase and benefit of the realty, or of the personalty? Its answer determines which estate is first liable. If the realty is first in liability, the contract made for the purchase money, though capable of being turned into a personal judgment against the purchaser, is secondary in its character, and in aid of the realty. This rule was formulated and used by the courts of England more than 200 years ago, in settling questions identical with those now before this court, and since its introduction into the judicial history of the mother country we remember no decision of her courts questioning its soundness. It should be stated that at the date of its first use personalty constituted the only fund for the payment The sum covered by the three notes is small, of debts in England. A favoritism, the outcompared with the incumbrance debt, being a growth of the old feudal system, so completely little less than one third its size. Alluding to hedged the realty about that it was rarely made the rule above given, equity will not consider to pay debts of decedents. In the United States he had a different intention as to these terms. property of a decedent, of all kinds, is and has and, therefore, the real estate should be charged been applicable to the payment of his debts. with both sums, as the primary source of pay-It has been made so now in England. Our ment. Complainant's first error assigned denies the right of the defendant to reimbursement on these facts: The intestate bought of Sanford real estate at the price of $1,650; paid $550 cash, and gave notes for balance. He purchased of Moffatt real estate at $4,500, and gave his notes therefor. Each vendor made a deed of the real estate sold by him to intestate, retaining lien for purchase money upon the land conveyed. Each enforced his lien upon the real estate against the heir-at law, and had his debt paid from the proceeds thereof. These proceedings were after death of intestate, and the realty so sold was situated in or near the City of Knoxville. The presumption is that this realty was bought by the intestate on speculation, and he intended and proposed to pay the sums due thereon from the proceeds thereof when sold. Complainant insists that no case has been passed upon by this court identical in its facts and defenses with the one in hand. We have found none determined by courts of last resort in the United States, except one or more adjudged by the Supreme Court of Massachusetts, wherein the court briefly held that the contract of purchase was a personal one, upon which the purchaser might have been sued, judgment had, and the debt collected from his personal estate; and for that reason held the personalty the primary fund for payment, and the realty in aid of it, merely.

constitutions and laws constitute a soil more favorable to the growth and vigor to this old rule than that of its origin, and in this country we would expect to see it oftener applied, and its authority less questioned, than in the land of its nativity. This old rule has been cited and approved by the Supreme Court of the United States in McLearn v. Wallace, 35 U. S. 10 Pet. 644 [9 L. ed. 566]. Judge McLean, delivering the opinion of the court, quotes Lord Eldon as saying, in Waring v. Ward, 7 Ves. Jr. 336, that the principle upon which the personal estate is first liable in general cases is that the contract, primarily, is a personal contract, the personal estate receiving the benefit. Judge McLean, continuing, says: "And so, if the contract was in regard to the realty, the debt is a charge on the land. It is in this way that a court of chancery, by looking at the origin of the debt, is enabled to fix the rule between distributees."

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We state generally that many of the state courts and law-writers in the United States cite and approve this "rule;" but they need not be referred to here with more particularity. When the rule was adopted in England, personal property did not have its present volume or importance. The mortgages upon real estate were nearly without exception for borrowed money. Vendor's liens were very rare, and cut no figure in the current litigation of that Complainant admits that the non-lien cred- day. The courts, in that formative period, exitor cannot subject the land to sale for the plained the parts of the transaction from which payment of his debt until he shows complete grew the debt, to ascertain the interest of the exoneration of the personalty, or its insuffi- debtor to charge his real or personal estate with ciency to pay debts. She insists the lien cred- its payment. Those able judges had little of itor can proceed to enforce his lien upon the precedent to guide them, but had good common realty in the first instance, without reference sense, and large acquaintance with and underto the personalty; that there is neither statute | standing of the motives and purposes moving

large part of the covenant litigation of the day. Where the claims of creditors have been paid, with no opposing statute nor adjudication of this court, and when the title to both realty and personalty flows from the same source,the intestate,-why should not his intent, impressed upon his property, control the question which shall enrich his heir or bis distributee? What good reason is there for making this an anomaly,- -an exception to a rule of such general application?

Union; and the reason of the rule, whenever applied, is the same, viz.: The realty, having received the benefit, must be held first liable for the payment therefor. The personal contract on the part of Swan had no bearing in the decision.

to action in the affairs of every day life. To this circumstance is largely due the excellency of those early decisions. These fathers of our inherited jurisprudence, guided by their practical good sense and level-headed wisdom, interpreted the making of the debt for the increase of and benefit to the personalty to mean that the debtor intended that estate should be burdened primarily with the payment. Hence all debts for personal property, services, loaned money and mortgaged debts, which make up the consideration supporting the great bulk of This court, in Masson v. Swan, 6 Heisk. 451, the indebtedness of that period, were held to 457, goes far to sustain this rule. Swan sold be for the benefit of the personalty; and conse- a lot to Masson, by parol, who put valuable quently it was first chargeable with their pay- improvements on it, but did not pay purchase ment. These judges were too clear-beaded not money. Swan died, and Masson disaffirmed to know that the converse of this rule, when the contract, and sued for the value of the imapplied to real estate, was axiomatically true, provements. This court held the lot the prialso; but, as the occasion of its application was mary fund for the payment. Judge Nicholson, rare, there being few land transactions, there speaking for the court, said: "The real estate, are few rulings of the courts upon it to be and not the personal, is benefited by the imfound in the early reported cases. If the per-provement; and equity necessarily fixes the sonalty receiving the benefit coming from the liability for the benefit on the real estate." The creation of a debt means that the debtor in-principle of Masson v. Swan has been applied tended that it should first be chargeable, why to similar facts by nearly all the courts of this does not the result follow to the realty? When it gets the benefit, why should it be true as to personalty and untrue as to realty? The courts proceeded in principle and reason upon the same line when they left the facts to determine the relative liability, inter partes, of two or more persons jointly and severally bound upon the same instrument. If it is reasonably certain, upon weighing the facts, that one signed with the intention to be bound as principal, and the others as sureties, the courts do not hesitate to so define their rights, and to enforce them accordingly. Likewise, the determination of the many questions arising in the settlement of partnerships, involving the conflicting rights of firm and individual creditors as to their priorities of payment from firm and individual means, is largely controlled by the intention and purpose of the parties, impressed upon the particular transaction. In fact, the rule giving several priorities is the outgrowth and fruitage of the expressed or presumed intent of the parties to the transaction, or in relation thereto. Death and intestacy do not affect the question; and the personal contract idea, though a prominent fact, is silent, while the courts give expres sion to the intent of the parties, in settling and fixing the relative liability of persons and funds in the two classes of cases herein before referred to. Also, if a tract of land subject to a lien is sold by the lien debtor surreptitiously, in separate parcels, at different times, and conveyed by deeds registered when made, the lien, if enforced by rule of the land, must be in the inverse order of alienation. The first sub-purchaser may force this order in the sale of the parcels. This equity grows out of the presumed intention of the several sub-purchasers, and may be enforced, notwithstanding death and intestacy have intervened.

John Marshall, of Franklin, Tenn.,-a great name in the law,-sat as a special judge in Franklin v. Armfield, 2 Sneed, 356, 257. This great lawyer held the executor, who had paid off an incumbrance upon a parcel of land, partly with his own means, and partly with the assets in his own hands, was entitled to be reimbursed therefor; and that the land, relieved from the burden resting on it when it came to the devisee, was chargeable therewith, as the primary fund.

The "personal-contract" theory, as a test to determine which estate is to be first chargeable with a debt, has been shifting and unfixed in its nature, as may be seen in the overruling of Campbell v. Findley, 3 Humph. 330, after an interval of half a century, by Moore v. Stovall, 2 Lea, 543, by a divided court, and a century of discordant opinions in England, and to some extent in New York, as to what makes a binding personal contract, in the sense of the rule. It should be observed that these two prominent States in intelligence, wealth and culture have cleared up the question by clear-cut legislative enactment, providing that the descended realty of decedents shall in all cases be the primary fund for payment of any debt fastened upon it by mortgage, etc., when it came to the heir, unless there is a clearly expressed intention to the contrary in the will of decedent. The better rule, we think, is to let the answer to the inquiry, Which estate got the benefit? fix the primary liability, if the debt is for borrowed money, and is secured by a mortgage on real Other contentions might be cited wherein the estate, and the personalty has been benefited expressed or presumed intention of the parties, thereby; and the courts, for more than a cenimpressed upon the transaction, is the control- tury, held these facts, by necessary implication, ling fact with the courts in fixing the liability evidence of the decedent's intention to charge of persons or funds; but those named are deemed his personalty with the burden of discharging sufficient for this purpose, to show the constant the mortgage debt, in exoneration of the realty, practice of the courts in giving a controlling-not an intention shown in a will, but iminfluence to the intent of parties in settling the pressed upon and inhering in the very fiber of

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