An "equitable lien" is created by a provision, in a conveyance inter vivos or in a will, charging the land, in the hands of

1. 2 Spence, Eq. Jur. 796.

2. Pomeroy, Eq. Jur. Sec.Sec. 165, Ed.) 1387 et seq. Equitable liens

C. Langdell, 1 Harv. Law Rev. 66, 70.

(2734) the grantee or devisee, with the payment of debts or legacies.3 So, land may be charged by will, or in a family settlement, with the payment of an annuity,4 or with the support of some person other than the owner.5 And occasionally a testator charges upon particular land devised a sum or sums to be paid to beneficiaries named for the purpose of equalizing the distribution of his property.6 The imposition of such a charge in effect involves an obligation upon the devisee or grantee to pay the debts or legacies, to pay the annuity, or to furnish support, as the case may be, under penalty, if he fails so to do, of having the land sold, or perhaps mortgaged, by decree of a court of equity, and the proceeds applied, so far as may be necessary, to the carrying out of the purposes declared. Such a charge is somewhat analogous to a trust created in favor of one person, upon a devise or conveyance to another;7 but it is not properly a trust, there being an entire absence of any fiduciary relation between the owner of the land and the person entitled to the benefit of the charge.8

3. See 2 Jarman, Wills, (5th Ed.) 1387 et seq. Equitable liens of this class, as well as other such liens, are admirably treated in the work on Equity Jurisprudence by the late John Norton Pomeroy (volume 3, Sec.Sec. 1233-1267), on which the present chapter is, to a considerable extent, based.

4. In re Tucker (1893), 2 Ch. 323; Gallaher v. Herbert, 117 I11. 160, 7 N. E. 511; Glenn v. Spry, 5 Md. 110; Hines v. Hines, 95 N. C. 482; In re Sharp's Estate, 19 Pa. Super, Ct. 621; In re Pierce. 56 Wis. 560, 14 N. W. 588.

5. Bell v. Watkins, 104 Ga. 345, 30 S. E. 756; Commons v. Commons, 115 Ind. 162, 16 N. E. 820, 17 N. E. 271; Low v. Ramsey, 135 Ky. 333, 135 Am. St. Rep. 459, 122 S. W. 167; Emery v. Swasey, 97 Me. 136, 53 Atl. 992; Byrne v. Byrne, 250 Mo. 632, 157

S. W. 609; Ellis v. Ellis, 64 N. J Eq. 375, 55 Atl. 103; Richardson v Bailey, 77 N. H. 184, 89 Atl. 840; Outland v. Outland, 118 N. C. 138 23 S. E. 972; Ripple v. Ripple, 3 Rawle (Pa.) 386; Shired v. Nes bit, 90 S. C. 20, 72 S. E. 545; Dick son v. Field, 77 Wis. 439, 9 L. R A. 537, 46 N. W. 668. Occasionally a conveyance subject to an agree ment or condition that the grantee support the grantor has been regarded as entitling the grantor to a lien to secure such support. Webster v. Cadwallader, 133 Ky. 500, 134 Am. St. Rep. 470, 118 S. W. 327; Hopper v. Hopper, 151 Ky. 120, 151 S. W. 359; Patton v. Nixon, 33 Ore. 159, 52 Pac. 1048.

6. Harland v. Person, 93 Ala. 273, 9 So. 379; Palmer v. Simpson, 69 Ga. 792; Farra v. Adams, 12 Bush. (Ky.) 515.

Under the common-law rule that lands were prima facie not liable for the simple contract debts of a decedent, the question frequently arose whether his will expressed an intention to the contrary, that is, charged his land with the payment of debts in favor of creditors. With the change in the law, making land as well as personalty liable for debts of the decedent, a rule which prevails in all the states, these questions have become of comparatively little importance, so far as the creditor is concerned. The question may still arise, however, whether, under a particular will, the land is charged with debts, so as to render it primarily liable for the payment thereof, thus reversing the ordinary rule that the personalty is the primary fund for that purpose. This concerns, not the creditor, but the devisees or heirs of the land on the one side, and the legatees or other persons entitled to share in the personalty on the other. The question also frequently arises whether land is charged with the payment of a particular legacy, so as to make it liable for this purpose, either before the personalty, which is ordinarily alone so liable, or pari passu with the personalty. In the absence of such a charge, the legacy must abate in case of insufficiency of such personal assets.

Since personalty is ordinarily the primary fund for the payment of both debts and legacies, the presumption is to that effect, and in order to charge the land with a legacy,9 or to charge it with debts in exon7. See Legard v. Hodges, 1 Ves. 477; Atty Gen'l, v. Persee. 2 Dr. & W. 69; Knox v. Kelly, 6 Ir. Eq. Rep. 279.

8. Francis v. Grover, 5 Hare 39; Dundas v. Blake, 11 Ir. Eq.

138; Harrison v. Dignan, 2 Dru. & W. 295; Hughes v. Kelly, 3 Dru. & W. 483.

9. Wright v. Denn, 10 Wheat. (U. S.) 204, 6 L. Ed. 303; Gridley v. Andrews, 8 Conn. 1; oration of the personal estate,10 a clear intention to impose such a charge must appear. The mere fact, moreover, that the land is charged with the payment of debts does not exonerate the personalty from liability therefor, but the land will merely be liable in aid of the personalty, which would, at the present day, be the case without reference to the terms of the will.11 An intention to exonerate the personalty will be much more readily inferred in favor of personalty disposed of by the will than that undisposed of.12

An intention that the land shall be charged with the payment of debts or legacies may be expressly stated, as by use of the word "charge," or by a devise to A "on condition that" he pay a certain debt or legacy.13 Moreover, an intention to charge a legacy on the land is usually inferred from the fact that, in

Heslop v. Gatton, 71 I11. 528; Morey v. Morey, 113 Iowa, 152, 84 N. W. 1039; Owens v. Claytor, 58 Ind. 129; McQueen v. Lilly, 131 Mo. 9, 31 S. W. 1043; Perry v. Halo, 44 N. H. 363; Morisey v. Brown, 144 N. C. 154, 56 S. B. 704; Clyde v. Simpson, 4 Ohio St. 445; Wright's Appeal, 12 Pa. St. 256; Arnold v. Dean, 61 Tex. 249; Lee v. Lee, 88 Va. 805, 14 S. E. 534.