BAPTIST UNIVERSITY v. BORDEN.

the uniform current of authority, as applied to the facts in the case before us, we do not regard it as binding upon the court in the disposition of this appeal. 20 Am. & Eng. Ency. (1st Ed.), p. 895, Sec. 5. This ruling does not affect the right of the remainderman named in Item 12, as the dwelling house is given to Mrs. Faircloth for her life and at her death to Mrs. Clara A. Lane. It having been allotted to her as a portion of her dower, the status is not changed by the dissent. The two-story brick store fronting on Walnut street, mentioned in Item 8 (2), having been allotted to Mrs. Faircloth as a portion of her dower, the enjoyment of it is thereby postponed until her death. The title to the other real estate given to Mrs. Faircloth in Item 8 for life and after her death to the trustees of the Baptist Female University, vests in the trustees at once, and they are entitled to the immediate possession thereof. The Buckhorn plantation given to Mrs. Faircloth for life in Item 8 (4) and disposd of in Item 14 must be sold at once by the executor and the proceeds paid over to the trustees of the Baptist Female University and the Thomasville Baptist Orphanage, as directed therein.

The result of this ruling in respect to the real estate disposes of contention No. 9 in regard to the rents accruing from this property. The rent which has accrued since the death of Judge Faircloth passes with the property and must be paid to those to whom the real estate belongs. This principle applies also to the rents accruing from the Buckhorn plantation directed to be sold.

His Honor's ruling in regard to the rents of the property referred to in Items 13 and 14 is reversed. Rogers v. McKenzie, 65 N. C., 218. This disposes of contentions No. 1, 2 and 9 (except as to property described in Item 7).

The contentions No. 4, 5 and 6 of the legatees named in Item 6 of the record may be considered together. They are, first, From an inspection of the whole will it appears that

BAPTIST UNIVERSITY v. BORDEN.

it was the intention of the testator that they should have the legacies and that other parts of the will must yield, if necessary, to give effect to this intention. Second, That if necessary to pay the legacies it is the duty of the executor to sell the real estate devised in other parts of the will. Third, That the bonds, stocks, notes, etc., in the hands of the executor must be applied under the will to the payment of their legacies, and that provision must be made for the payment of debts out of other property of the deceased.

The will contains a plan or scheme for the disposition of the testator's property entirely consistent and harmonious in all its parts. There would be no difficulty in executing the provisions of the will but for the derangement of the plan caused by the dissent of the widow. The result of this action on her part, followed by the establishment of an indebtedness in her favor, materially changes in many respects and prevents the execution of the plan of the testator. We fully recognize the well settled principle adopted by the courts that the will shall be so construed that the dissent of the widow shall effect the devisees and legatees to as small degree as possible and that the general scope or plan of distribution be carried out and effectuated so far as possible. "The dissent may defeat some of the arrangements made by the will and accelerate the time of enjoyment of some of the legacies and devises, but it does not affect the construction of the will." Pritchard on Wills, Sec. 776.

We are unable to see from an inspection of the whole will that it was the intention or within the contemplation of the testator that any part of his will would fail to be executed, or that upon his death there would be any necessity that one part should yield in favor of another. It is a holograph will, bears date December 28, 1900. The death of the testator occurring the next day, being the 29th of the same month. The will is drawn with care and is free from ambiguity. The

BAPTIST UNIVERSITY V. Borden.

condition of the estate, as shown to us by the case agreed, was such that, but for the dissent of the widow, the executor would have found no difficulty in executing every provision thereof. We can not therefore undertake to say what the testator would have done, or desired to be done, in the condition into which his estate has been placed by the unexpected contingency which has arisen. We must, by an adherence to the rules and precedents laid down by the courts, direct the disposition of the estate, as near as may be, in accordance with the directions of the testator as set forth in his will.

The legacies given his nephews and nieces in Item 6 fall within the class known as demonstrative. Mr. Jarman in his work on Wills, Chapter 523, in speaking of general and specific legacies, says: "But, besides these two classes of legacies already mentioned, there is a third or intermediate class where there is a separate or independent gift to the legatees and then a particular fund or state is pointed out as that which is to be primarily liable."

"A demonstrative legacy is a bequest of a certain sum of money, stock or other like, payable out of a particular fund or security. . . . A demonstrative partakes of the nature of a general legacy by bequeathing a specific amount, and also of the nature of a specific legacy by pointing out the fund from which payment is to be made, but differs from a specific legacy in the particular that, if the fund pointed out for the payment of the legacy fails, recourse will be had to the to the general assets of the estate." Crawford v. McCarthy, 159 N. Y., 515.

"Such a legacy is so far specific that it will not be liable to abate with the general legacies upon a deficiency of assets, except to the extent that it is to be treated as a general legacy after the application of the fund designated for its payment." Gelbach v. Shivley, 67 Md., 498.

Of course, all legacies are subject to the payment of debts

BAPTIST UNIVERSITY v. Borden.

and, when the widow dissents, of her distributive share of the personal estate. The general legacies must give way or be postponed in favor of specific and demonstrative legacies.

The contention of the legatees in Item 6, that if necessary to pay the legacies it is the duty of the executor to compel the sale of real estate, cannot be sustained. It is well settled that unless it clearly appears from the will that it is the intention of the testator to charge the payment of debts upon his real estate, the law will not do so. The personalty must be applied to the payment of debts and exhausted before the realty can be subjected. Shaw v. McBride, 56 N. C., 173. "The personalty in the hands of the executor or administrator, whether it be specifically bequeathed or otherwise, is first liable to the payment of debts unless specifically exempted; and the real estate belonging to the deceased, no matter in what condition it is found, whether descended or devised, is not liable until the former is exhausted." Knight v. Knight, 59 N. C., 134; Graham v. Little, 40 N. C., 407. "It is safe to say that in the absence of any controlling direction of a testator to the contrary, the personal estate is primarily liable for the debts of the deceased." Pate v. Oliver, 104 N. C., 458; Mahoney v. Stewart, 123 N. C., 106. We fail to find in the will any indication of a purpose to change the order of liability fixed by the law, and we affirm his Honor's ruling in that respect.

The 6th contention of the legatees was overruled by his Honor and we concur therein. From the facts stated, we are unable to see to what other property of the deceased the legatees in this contention refer. After the payment of the debts and Mrs. Faircloth's distributive share, which as we have seen have priority over the legacies, there will be no other personal property in the hands of the executor. In any phase of the question we sustain his Honor's ruling.

BAPTIST UNIVERSITY v. BOrden.

The seventh contention of the legatees, that the property devised in Item 7, known as the "Law Building," and an adjoining lot fall into the residum, was sustained by his Honor and no exception made thereto.

The eighth contention of the legatees that the property described in Item 14 has been converted by the testator into personal estate, and that they are entitled to the proceeds thereof in order to satisfy their legacies was overruled by his Honor and we concur therein. The direction to sell this

property and divide the proceeds between the Thomasville Baptist Orphanage and the Baptist Female University does not change its character in respect to its liability for debts or legacies. Its conversion is for the purpose of division only.

The tenth and eleventh contentions may be considered together. His Honor sustains the tenth and overrules the eleventh and we concur with him in both rulings. As we have seen, the general legacies given in Items 1, 2, 3, 5, and 11 must abate or must be postponed until the demonstrative legacies given in Item 6 have been paid in full.

The contention No. 112, that it was the intention of the testator as expressed in his will, that all legacies and devises should be paid in full and that it has become impossible to carry out this intention by reason of changed conditions since the making of the will, and that a court of equity will not permit the loss to fall upon any one legatee but will apportion the loss ratably and that it was not the intention of the testator to make mock legacies to them, was overruled by his Honor and we concur therein. As we have seen, it was the intention and expectation of the testator that all of the legacies and devises given and made by him were to be effectuated. What he might have done in anticipation of the changed conditions, we are not at liberty to conjecture. Hill v. Toms, 87 N. C., 492.

The twelfth contention made by the legatees named in