Cockerille v. Dale's adm'r

delivered the opinion of the court.

*49The court is of opinion that there is no error in the decree of the circuit court. The devise and bequest of John Richards, by the 6th clause of his will to John Dale charges both the devise and the legacy with the full and comfortable maintenance and support of Ms mother and sister Rosanna during their natural lives, in connection with the annuities bequeathed to them by previous clauses of his will. And although said devise and bequest are subject to the debts of John Dale, they are only liable therefor subject to the charge aforesaid in favor of his sister Rosanna, his mother being dead. The said clause in favor of his sister Rosanna was a charge on the land and personal bequest in the hands of John Dale. The judgment creditor can occupy no better position than his debtor.

The court is further of opinion that it does not appear from the will that the testator intended to make the legacy liable to the charge prior to the real estate, both species' of property are chargeable pro rata with the maintenance and support of Rosanna during her life. Elliott v. Carter, 9 Gratt., 541. But it appears that only $575.00 of the stocks of which the legacy ■consists survive, which is insufficient to satisfy the .amount charged on the devise and bequest which is in arrear, and that the net proceeds of the sale of the land will not yield a sum sufficient to pay the annual charge for the maintenance and support of Rosanna Dale during her life. We are of opinion therefore that there is no error in the decree directing the fund to be paid to the executors to he administered in accordance with the provisions of the will.

But the fund may not be exhausted in the support and maintenance of Rosanna during her life. What remains, if any, is chargeable with the payment of the debts of John Dale. The decree is interlocutory, and the case has to go back; and the circuit court will *50make such order as shall he necessary and proper to secure the application of such sum as may remain after the death of Rosanna Dale to the payment of the appellants debt. We are of opinion therefore to affirm the decree of the circuit court.

Decree aeeirmed.