Why this same rule should not obtain even though the personalty is insufficient to pay the whole mortgage indebtedness we do not see. While the personal estate is the primary fund for the payment of debts, yet it is not the only fund, and when the personalty is exhausted the debtor can resort to the real estate for the satisfaction of his debt. The real estate devised to Mrs. Auchter is subject to a mortgage, with the accompanying bond created and executed by the decedent, and the debt was, therefore, his, for which he was individually liable: Eagle Beneficial Society's Appeal, 75 Pa. 226; Stuard's Estate, 17 Phila. Rep. 498, and which can be collected out of the real estate when the personalty is insufficient. The devise was not cum onere. There is nothing in the will from which we would be warranted in concluding that the testator meant that Mrs. Auchter should pay the mortgage. No such intention is manifest; and, indeed, the contrary appears in the first item of the will, wherein the testator directs that his "just debts" be paid. These words are unnecessary in our State, where lands as well as personal estate are bound for decedent's debts. Still the words, "that my just debts and funeral expenses be fully paid and satisfied," cannot be treated as meaning nothing; and if they are to have any significance, it must be that the executor should pay the debts before distribution be made of the estate in pursuance of the will: Hoff's Appeal, 24 Penna. 200. As we fail to discover from the will of the testator any intention to exempt his personal estate and charge Mrs. Auchter with the payment of the mortgage, we will be obliged to hold that she took the devise exonerated from the mortgage debt. The personal estate being insufficient for the payment of the debts, what real estate can first be appropriated in payment of the mortgage and other debts? The petitioner contends that the devise to her is specific, that the devise of 231 North Tenth Street to the executor is specific, and that the one to Amelia Bauer, the widow, of "all the rest, residue and remainder of my estate," etc., is a residuary one, and that, therefore, under the law, the latter must be first subject to the payment of debts. In McGlaughlin vs. McGlaughlin, 24 Pa. 20, the rule is declared by Lowrie, J., to be this: "On a question of marshalling assets under a will, the residuary clauses necessarily furnish most important evidence of the intention of the testator, because they dispose of the surplus that remains after satisfying all the other directions of the will. On this account it is very natural to presume that the testator intends to charge upon them all the deficiencies in the other portion of his estate in paying debts and legacies, and hence it is very generally decided that debts and legacies, not otherwise effectively or specially provided for, fall upon the residuary devises and legacies": Pittman's Appeal, 182 Pa. 355; Pyott's Estate, 160 Pa. 441. There can hardly be any question that the devise of the "rest, residue and remainder of my estate," etc., to Amelia Bauer is a residuary one and not specific. The fact that the testator directed his debts to be paid, and also bequeathed to her one-third of the proceeds of the sale of the house No. 231 North Tenth Street, sold by the executor, strengthens the position that the devise to her in a subsequent item of the will was the residue of the estate, that is, what remained after the payment of debts and legacies. Here the "rest, residue and remainder of my estate" can mean nothing but what remained after the payment of debts and legacies: Bennett's Estate, 148 Pa. 139. The personal estate having been exhausted without fully satisfying the debts, and the testator not expressly devising any lands' for their payment nor charging any of his land for the payment of debts: Hoover vs. Hoover, 5 Pa. 356; Jone's Estate, 7 Phila. 494, the devisee taking the residue of real estate, certainly takes it subject to the payment of debts which were not paid and satisfied by the personal estate, and the residue of real estate must be taken to pay the debts before the land specifically devised: Pyott's Estate, 160 Pa. 441. The demurrer is overruled and the petition is granted. Counsel will prepare the proper decree for the sale of the real estate. STAAB et al. vs. READING SCHOOL DISTRICT et al. School Laws-School Code of 1911-Public Playgrounds-Right of School District to Conduct Playgrounds-Nuisance-Noise-Effect On Abnormally Nervous Person-Injunction. 1. Whilst the School Code contemplates the establishment of playgrounds in cities as a virtual necessity, such of its terms as give authority for the installation and conduct of playgrounds are not imperative, but permissive, and it is therefore a fair inference that the Legislature intended that the discretion vested in the defendants should be exercised in conformity with private rights, and did not intend to confer license to commit a nuisance in any place which might be selected for the purpose. 2. Plaintiffs acquired a residence adjoining a public school yard which the School Board subsequently used as a public playground during the summer months. The playground was equipped with appropriate apparatus, placed under the supervision of experienced instructors and operated from 9 A. M. to 5 P. M. The exercises and games were conducted in a regular and orderly way and as quietly as possible. The only person who suffered mentally and physically from the proximity of the playground was one of the plaintiffs, a woman who was more than normally nervous and sensitive and liable to be annoyed by the presence and ordinary noise of children. Held: that the conduct of the playground is not a case of nuisance calling for an injunction. 3. Every annoyance is not a nuisance. It is necessary to consider the surroundings. People who choose to live in densely built up and populated districts of a city must be willing to put up with certain discomforts which in rural surroundings would not exist. 4. Those who choose to fix their dwellings in close proximity to public schools may fairly be considered as precluded from afterwards complaining of the annoyance caused them by the conduct of the schools so long as that conduct is in accordance with statutory directions. 5. In judging of whether an annoyance constitutes a nuisance, the average healthy person must be taken as a standard, not those whose sensibilities and nerves are unusually acute or exacting. In the Court of Common Pleas of Berks County, in Equity. No. 1174 Equity Docket, 1916. Upon trial and final hearing. William B. Bechtel for plaintiffs. Earle I. Koch for the Reading School District. Wellington M. Bertolet for The Reading Playground Association. Opinion by Endlich, P. J., June 23, 1917. I. FINDINGS OF FACT. 1. The plaintiffs are the owners in fee simple of a certain two-story brick dwelling house and lot of ground on which the same is erected, on the east side of North Fifth street between Spring and Robeson streets, No. 1011 North Fifth street, in the city of Reading, and in a strictly residential portion of the same. The property is bounded on the north by a 3-foot alley, on the east and south by property of the Reading School District, one of the defendants in this case, and on the west by North Fifth street, containing in front or width north and south on North Fifth street 20 feet, and in depth of uniform width 120 feet, more or less. 2. The house referred to in the foregoing finding has been for a number of years occupied as a dwelling house by the plaintiffs and their family, consisting of themselves and 3 children, 2 young ladies and a boy. At its southern and eastern sides it has 22 windows and 3 doors facing the property of the Reading School District. 3. The property of the Reading School District above referred to as adjoining that of the plaintiffs is partly occupied by 2 school houses, one on the northeast corner of North Fifth and Spring streets, and the other in the same block at the northwest corner of Spring and Church streets, which are customarily and usually attended by about 500 scholars. In connection with these buildings and taking up part of the property of the School District is a yard containing about 15,500 square feet. The school buildings were erected and the property in use as a school property a considerable time before plaintiffs acquired their property. 4. The Reading Playground Association is a corporation duly chartered for the maintenance of free public playgrounds. 5. During the summer of 1916, beginning in the latter part of June and ending in the beginning of September, the Reading School Board in conjunction with the Playground Association utilized the school yard above mentioned as a public playground, equipping it with appropriate apparatus, including a talking or musical machine, putting it and the exercises conducted, which embrace dancing, story-telling, gymnastics, ball-playing, etc., in systematic rotation, under the direction of experienced instructors, and keeping it in operation daily from 9 o'clock in the morning until 5 o'clock in the afternoon, (on Saturdays closing at noon), though at first some children or other persons gathered and remained there as late and later than 9 o'clock in the evening, until, at the suggestion of the Court, this was stopped and all use of the playground ceased after 5 o'clock in the afternoon. 6. The playground in question was attended on an average by between 150 and 200 children, it being, however, located in a district containing approximately 1,000. The apparatus in use which might cause a thumping noise has been provided with rubber pads. Creaking apparatus has been carefully oiled. The spread of dust has been prevented by sprinkling. The exercises and games are conducted in a regular and orderly way and as quietly as can be, entire absence of noise and of a measure of consequent annoyance to close-by neighbors being impossible. 7. The plaintiff, Agnes B. Staab, has suffered mentally and physically from the proximity of the playground and its operation. One of the daughters appears to have been similarly effected, though in a less degree; the other is shown to have lost some weight, without tracing the cause thereof to the matters here complained of. From time to time during the summer they left their home, partly at least to escape the noise. Others have occasionally been disturbed in their sleep or comfort within doors. Aside from the effect on the plaintiff, Agnes B. Staab, and the daughters referred to, however, no deleterious consequences seem to have resulted or to be threatened either to health or to property. The plaintiff. Agnes B. Staab, is a person more than normally nervous and sensitive and liable to be annoyed by the presence and ordinary noise of children. 8. In order to the availability of a playground it is necessary that it should be in a residential portion of the city, as this one is, convenient and accessible to the children designed to be served by it. No suggestion of abuse of discretion on the part of the School Board in the selection of its location can be predicated upon any part of the evidence. Nor is there any proof of other locations clearly preferable to it or more suitable, or perhaps even as suitable, all things being considered. The decision of this case is not free from difficulty. There appear to be no direct precedents for it. The only guide we have is in the general principles applicable to cases of nuisances, which are so familiar as to require no citation of authorities. There seems to be no evidence of any deterioration in the value of the plaintiffs' property. Yet it is clear that they have been subjected to annoyances which are not imaginary,, but real. To dismiss the bill will be in some measure to perpetuate these annoyances. To enjoin the operation of the playground, on the other hand, will involve a hardship upon the children of the neighborhood and upon the public, and may lead to a result opposed to the policy of the law as found in the School Code, which contemplates the establishment of playgrounds in cities as a virtual necessity. The grave question is whether the annoyances shown to exist amount in fact to a legal nuisance, enjoinable in equity. Every annoyance is not such a nuisance. It is necessary to consider the surroundings. People who choose to live in densely built up and populated districts of a city must be willing to put up with certain discomforts which in rural surroundings would not exist. Again, those who choose to fix their dwellings in close proximity to public schools may fairly be considered as precluded from afterwards complaining of the annoyance caused them by the conduct of the schools so long as that conduct is in accordance with statutory directions. Another element to be considered is the individuality of the complainants themselves. It has become practically a maxim of our law that in judging of whether an annoyance constitutes a nuisance we must take as a standard the average healthy person, not those whose sensibilities and nerves are unusually acute or exacting. It is only what causes distress and suffering to the average individual that can be looked upon and prohibited as a nuisance. Now, it is a striking fact in this case that the one person who appears to have suffered most seriously from the noises, etc., of the playground, and to whom the operation of the same would seem to afford the most substantial ground of complaint, indeed the only one of whom this can be said, is a woman of more than normal nervous sensibility. To make her experience the ground for enjoining a public enterprise of |