The important question presented is, whether the eight hundred and thirteen dollars, which the executor realized from the sale of the Binghampton property, after paying seven hundred and sixteen dollars and forty-five cents in discharge of debts for which the testator was bound as security for his son Peter, were assets in the hands of the executor for the payment of the testator’s debts. The Orphans Court decided that they were, and on that ground refused a decree for the sale of the lands of which the testator died seized.

The statute provides, that if, on full examination, the court shall find that the personal estate of the testator or intestate is not sufficient to. pay his debts, they shall order and direct the executor or administrator to sell the whole, if necessary, of the lands, &c., for the purpose, or so much thereof as will be sufficient.

Were the assets in the executor’s hands personal property, which by law he could apply for the payment of the outstanding debts of the testator ?

The executor was ordered, by the will, to sell the house and lot at Binghampton for a specific purpose. That purpose was, to take the produce of the sale, and pay, first, the debt of the testator’s son Peter, where he was bound as surety for his son, and the “remainder,” if any there should be, the testator says, " I give unto my daughter-in-law Charity Ann, the wife of my son Peter, which I give unto her for her own separate use and by taking her own separate receipt therefor.”

The argument on behalf of the respondent is, that the executor sold the Binghampton property, and thereby converted it into personal property; that the personal property is the primary fund which is to answer for the debts, and therefore this, as personal property, must be so appropriated.

It is true the personal estate of the testator is by law the ’ primary fund out of which the debts are to be paid. But, as was said in Mangham v. Mason, 1 Ves. & B. Rep., “ Properly nothing is the. personal estate of the testator that was *192not so at his death.” If a testator directs lands to be sold and converted into money to pay his debts, the proceeds become a fund which is liable for the debts of the testator, not because it is personal property, but because it is so appropriated, not by law but by the will of the testator. The testator ordered this land to be converted into money for a specific purpose. If the* executor can appropriate it for any other purpose, it will be in direct violation of the will of the testator. He cannot do it without violating both the law and the testator’s intention, unless, because it has been converted into money, the law will stamp it as personal property for any other purpose than that designated by the testator.

In Gibbs v. Ougier, 12 Ves. 413, the master of the rolls says : If you can find a substantive and independent intention to turn the real estate, at all events into personal, that will do; hot where there is only a specific purpose, and no conversion, except to answer that purpose, as if the direction is to convert the estate in order to give a legacy, the creditors cannot come and take that from the legatee, merely as that is the mode in which it is given to him. In that case the executors were ordered to sell all the testator’s lands and to dispose of it to different legatees. There was no provision for the payment of the debts. A creditor, by simple contract, filed his bill praying the usual decree, and that, in case the personal estate should not be sufficient to satisfy the debts, the real estate might be declared liable to make good the deficiency. The counsel argued it was the intention of the testator, to all intents and purposes, to convert the real estate into money, by the effect of which direction it was mere personal estate, and would be taken as such by the executor or next of kin, and by analogy the court should say it could not be got at without paying the debts. But the court decided that the creditors could not take the estate from the legatee merely, because, on transmitting it from the hands of the executor to the legatee, it assumed the shape of personal property. It was converted for one specific purpose, and for that only was personal property.

*193It makes no difference, in respect to this question, in what quality the devisee took the property, whether as real or personal. As far as she was concerned it was personal property; for, as such, it was the intention of the testator she should take it. In the event of her death it would have gone to her personal representative. But the land was converted for no purpose except that which the will directed; and if the creditors have any claim to it, they must show it under the will. The conversion was merely the mode in which the estate was given for certain specific purposes; and simply because that mode has been adopted, it cannot so change its character as to defeat the intention of the testator. The executor had no right to take the proceeds of the sale for any other purpose but that directed by the will. It was not personal property for any other purpose. It is admitted that without this fund the personal estate of the testator was deficient. In contemplation of the statute, then, the personal estate of the testator was not sufficient to pay his debts.

But, on behalf of the respondent, it was further insisted that part of the debts remaining unpaid were debts which were to be paid out of the proceeds of the Binghampton property. The debts to bo paid out of this fund were the debts of Peter, for which the testator was bound as surety. The Binghampton property had been purchased by the testator of his son, for the sum of $2300, six hundred and seventy dollars of which sum the testatomwas liable to pay on notes of that amount on which he was security for his son; six hundred and seventy-five dollars money, borrowed on his own notes for his son, and one thousand dollars cash, which he had lent to Peter. These several items the testator had charged against his son in a small book kept by him. It was insisted that it was the testator’s intention that the proceeds of the sale of the property should pay those several sums of money. The language of the will does not admit of such a construction. The fund was bound for no debts except such as the testator was bound as surety for his son at the time the will was 'made. It was competent for the respondent to show what debts the *194testator was surety for at the time of making the will. The will does not show on its face what these debts were, and extrinsic evidence must necessarily be resorted to for the purpose. It does not appear, by the case agreed upon, that there were any other such debts, except those amounting to $716.55, due upon the notes of his son, on which the testator was security.

With the view I have taken of the case, it is unnecessary to examine the question, as to the effect upon the point in controversy of the executor’s having sold the Binghampton property without first having taken out letters testamentary in the state of New York.

The case must be remitted to the Orphans Court, with directions to proceed and make decree for the sale of the real estate of the testator to pay his debts, or so much thereof as may be necessary for the purpose.