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 executrix of George Deneale, for the sum of $7957 58, besides interest and costs. That this judgment was founded on a contract between James Deneale and George Deneale, and the testator of the complainants. That $2913 65 of this judgment was satisfied by a sale of the property of James Deneale the principal, leaving a balance due on the judgment of $5000.

The bill charges that George Deneale left a considerable estate real and 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 wit, 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 Deneale 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 his name, which have been claimed by Conway Whittle and others, as specifically belonging to 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 his debts. If they should be decided to belong to the said Whittle and 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 P. 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, which shows that he 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, except 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 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. He 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 of furniture shall take place. He then states that he is indebted to 'no one, and poposes to continue so.' He states that he is security for his brother James for two sums, for which he 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 pay these debts until the property so deeded shall be sold'—when his 'estate must be charged with any deficiency.' He directs that his executrix and executor should not 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 Deneale, and the report of the commissioners, the Circuit Court dismissed the bill 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 payment of 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. Jun. 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 her life. The reversionary interest is left to take its legal course.

He then directs 'that an appraisement only of my estate be made, and that no sale of furniture shall take place.'

The meaning of this 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. 3 Vez. 379.

Mr. Lee for the appellees.——

The first question is, what was the real intention of the testator? That intention must prevail. 2d. 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. Kenworthy, 9 Vez. 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. Deneale 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.

Mr. Chief Justice MARSHALL delivered the opinion of the Court:——