In Lewis v. Darling (1853) 57 U.S. 1, the Supreme Court held that even upon appeal, an order may be made for the cause to stand over, with liberty to the plaintiff to amend by adding proper parties.
It was stated that, the rule is where a testator gives several legacies, and then, without creating an express trust to pay them, makes a general residuary disposition of the whole estate, blending realty and personal property in one fund, the real estate will be charged with the legacies, for in such case the residue can only mean what remains after satisfying the previous gifts.
The opinion then states:
"Such is the settled law both in England and in the United States, though cases do not often occur for its application. Where one does occur, a legatee may sue to recover the legacy, without distinguishing in his bill the estate into the two kinds of realty and personalty, because it is the manifest intention of the testator that both should be charged with the payment of the money legacies. Nor does this conflict at all with that principle of equity jurisprudence, declaring that generally the personal estate of the testator is the first fund for the payment of debts and legacies. The rule has its exceptions, and this is one of them."