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Exoneration

estate and real

EXONERATION. The taking off a burden or duty. The usual use of the word is in the rule in the distribution of an intestate's estate that the debts which he himself con tracted and for which he mortgaged his land as security, shall be paid out of the personal estate in exoneration of the real.

But when the real estate is charged with the payment of a mortgage at the time the intestate buys it, and the purchase is made subject to it, the personal estate is not in that case to be applied in exoneration of the real estate; 2 Pow. Mortg. 780; Hurt v. Reeves, 5 Hayw. (Tenn.) 57; Duke of Cum berland v. Codrington, 3 Johns. Ch. (N. Y.) 229, 8 Am. Dec. 492; 1 Lead. Cas. in Eq. n. *646; Appeal of Hirst, 92 Pa. 491.

But the rule for exonerating the real es tate out of the personal does not apply against specific or pecuniary legatees, nor the widow's right to paraphernalia, and, with reason, not against the interest of cred itors; 2 Ves. 64; 1 P. Wms. 693; 3 id. 367.

See 26 Beay. 522; Appeal of Clery, 35 Pa. 54; Canfield v. Bostwick, 21 Conn. 550.

Like the right of contribution between those equally liable for the same debt, the right of exoneration exists between debtors successively liable. A surety who discharges an obligation is entitled to look to the prin cipal for reimbursement, and to invoke the aid of a court of equity for this purpose, and a subsequent surety, who, by the terms of the contract, is responsible only in the case of the default of the principal and a prior surety, may claim exoneration at the hands of either; Bisph. Eq. 331; 3 Pore. Eq. Jur. 1416.

As to exoneration of simple contract debts, see 1 Sm. L. Cas., 9th Am. ed. 614.