No. V. of my debts, funeral and testamentary expenses and legacies, or Charge of such other sum and sums of money or charges as I may give by Real Estate in aid of the Personalty. shall prove insufficient for the payment of debts and legacies, the real estate with the deficiency. to create a charge for payment of debts and legacies. rule to be collected from a number of authorities seems to be, that whenever there is a general direction that the debts and legacies shall be paid, and any disposition is afterwards made of real estates, that the real estates will be charged with both the debts and legacies: (Newman v. Johnson, 1 Eq. Ca. Abr. 197: S. C., 1 Vern. 45; Bowlder v. Smith, Pre. Cha. 264; Trott v. Vernon, 1 Eq. Ca. shall be charged Abr. 198; S. C., Pre. Cha. 430; 1 Vern. 708; Davis v. Gardiner, 2 P.Wms. 187; Harris v. Ingledew, 3 P. Wms. 98; Halton v. Nichol, Ca. temp. Talb. 112; Stranger v. Tryon, see Raithby's note to 2 Vern. 409; Legh v. Warrington (Earl of) 1 Bro. P. C. 511, edit. Toml.; Coombes v. Gibson, I Bro. C. C. 273; Godolphin v. Pennick, 2 Ves. sen. 271; Kentish v. Kentish, 3 Bro. C. C. 157; Kightley v. Kightley, 2 Ves. 328; Hassell v. Hassell, 2 Dick. 526; Brudenell v. Boughton, 2 Atk. 268; Shallcroft v. Finden, 3 Ves. 739; Williams v. Chitty, 3 Ves. 545; Clifford v. Lewis, 6 Mad. 313; Beeston v. Booth, 4 Mad. 161; Bench v. Biles, 4 Mad. 187; Cole v. Turner, 4 Russ. 376; Ronalds v. Feltham, 1 Turn. & Russ. 418; Graves v. Graves, 8 Sim. 55; Irvin v. Ironmonger, 2 Russ. & Myl. 581; Mirehouse v. Scaife, 2 Myl. & Craig, 695; Harding v. Grady, 1 Drury & W. 430; Parker v. Marchant, 1 You. & Coll. N. C. 290; see also Shaw v. Bosser, 1 Kee. 559; Price v. North, 1 Turn. & Phil. 84.) Whether such a charge would be created where the dispositions of the will are confined to personalty, does not appear to have been yet determined, as in all the cases which have as yet occurred in which this question has arisen, the will appears to have embraced real estate; still, as a learned writer, when treating on this subject, remarks, "considering the strong tendency of the recent cases in favour of such charges, it seems unlikely that any distinction of this nature will be established" (see Jarm. on Wills. 520.) Where a testator has set apart a the rule will not apply. It appears, however, that if a testator has provided any particular fund for the payment of his debts and legacies, it will rebut the inference of an intent to particular fund charge the whole of his real property with these incumbrances (Thomas v. Britnell, 2 Ves. sen. 313), as where a testator, after directing that all his debts and legacies shall be paid, directs certain real estates to be applied for that purpose, in which the general charge by implication arising out of the introductory words will be controlled by the specific charge in the subsequent part of the will: (Palmer v. Graves, 1 Kee. 545.) But the appropriation of particular lands to the payment of debts or legacies, will only rebut the implication of a general charge on the whole real estate, where such charge is created by general or ambiguous expressions, and not where there is a clear charge made in express words upon the whole real estates: (Ellison v. Ainey, 1 Ves. sen. 568; Coz v. Bassett, 3 Ves. 155; Crallan v. Oulton, 3 Beav. 1.) Whether a direction that the debts shall executors will rebut the implication of a charge upon the real estate. It seems, however, that if the debts are directed to be paid by the executors it will be presumed that the payment is to be made by them exclusively out of be paid by the funds belonging to them in their representative capacity, unless the lands themselves are expressly devised to them: (Brydges v. Landen, cited 3 Ves. 550; stated from the Registrar's Book, 3 Russ. 345 a; Keeling v. Brown, 5 Ves. 359; Powell v. Robins, 7 Ves. 309; Willan v. Lancaster, 3 Russ. 108.) But if the lands are devised to the executors, then a direction even to them to pay the debts or legacies will saddle the realty with the charge. Thus, where a testator gave several legacies and annuities to be paid by his executor, and then devised all the rest and residue of his goods and chattels and estate to his nephew (who was his heir-at-law), and appointed him executor of his will, it was held that the real estate was chargeable with the legacies and annuities in aid of the personal estate (Aubrey v. Middleton, 2 Eq. Ca. Abr. 249, 479, pl. 16.) This doctrine has also been supported by several more recent decisions: (Alcock V, Sparehawk, Eq. Ca. Abr. 198; S. C., 2 Vern. 228; see also Goodright and Phipps v. Allen, 2 W. Blackst. 1041; Barker v. Duke of Devonshire, 3 Mer. 310; Henvel v. Whitaker, 3 Russ. 343; Doe d. Pratt v. Pratt, 6 Ad. & Ell. 180; is my will, or any codicil or codicils annexed thereto, that all ad singular my freehold and copyhold lands and hereditaments WILLS. No. V. Charge of Real Estate in aid of over v. Gregory, 9 L. J. (N. S.) 89, Ch.) Nor will the circumstance of the Personalty. The lands being devised to the devisee for an estate tail (Clowdsley v. Pelham, Eq. Ca. Abr. 197, pl. 2; S. C., 1 Vern. 411) exonerate the lands from the Large, when so limited with a direction to pay the debts, although there should e several intermediate bequests between the gift in tail and the appointing him tecutor, and directing him to pay the debts; as, for instance, where a testator Levised lands to A. and the heirs of his body, with remainder over, and in nother part of his will gave to A. all the personal estate, and appointed him xecutor, willing him to pay the testator's debts: it was held the real estate was harged. But it is not so clearly determined whether a direction to an executor pay the debts would charge the real estate, where such executor takes a mere fe estate under the will. In Finch v. Hattersley (3 Russ. 345, n.), however, he real estate was held to be charged under such circumstances; still it did not ppear that the fact of the executrix being a devisee for life of the real estate ad any influence upon the court, and as no case was decided before the doctrine as fully established that a direction that the debts should be paid by the xecutors would rebut the implication of a charge of them upon the real estate, he case can scarcely now be relied on as an authority on the point above sugested, and it seems quite settled that a limited estate devised to one of several xecutors in the testator's lands will not be charged with debts under a direction the testator to pay them (Keeling v. Brown, 5 Ves. 359); nor, in fact, would ven a devise in fee to one of several executors produce this operation: (Warren . Davies, 2 Myl. & Kee. 49; Wasse v. Heslington, 3 ib. 495.) Although a devise of the rents and profits was considered as a devise of the Where the deands themselves, and to carry both the legal and equitable estate therein vise is of the Johnson v. Arnold, 1 Ves. sen. 171; Barnes v. Dixon, ib. 42; Doe v. Lakeman, 2 rents and profits Barn. & Ad. 421), yet some fluctuation of opinion was entertained, as to whether only. charge of debts or legacies on such rents and profits would have warranted 1 sale for the purpose of paying them. In the earlier cases, a distinction seems o have been taken as to whether such charges were to be satisfied within some ixed definite period, or where no time was specified for that purpose. In the former case, unless the charges could be satisfied within the time prescribed out of the rents and profits, a sale was allowed (Lingen v. Foley, 2 Cha. Cas. 202; 2 Cha. Cas. 25; Anon. 1 Vern. 104; Perry v. Ascham, 2 Vern. 26; Rawlins v. Brotherson, cited 2 Ves. 480; Sheldon v. Dormer, 2 Vern. 310; Warburton v. Warburton, ib. 420; Jackson v. Ferrand, ib. 424; Green v. Belcher, 1 Atk. 1; Okedon v. Okedon, 1 Atk. 550; Gibson v. Montfort, 1 Ves. sen. 491; Allan v. Backhouse, 2 Ves. & Bea. 65); but if no time was specified within which the charges were to be paid, they could only have been satisfied by a gradual accumulation of the annual profits as they arose: (Trafford v. Ashton, 1 P. Wms. 415; Ivey v. Gilbert, Pre. Cha. 583; S. C., 2 Eq. Ca. Abr. 644, pl. 16; Evelyn 7. Evelyn, 2 P. Wms. 659; Mills v. Banks, 3 P. Wms. 1.) But for many years past, the judges have inclined to treat a trust to apply the rents and profits in raising a sum of money even at an indefinite period as authorizing a sale: (Green v. Belcher, 1 Atk. 505; Baines v. Dixon, 1 Ves. sen. 42; Ridout v. Earl of Plymouth, 2 Atk. 104; Shrewsbury (Countess of) v. Shrewsbury (Earl f), 1 Ves. 234; Booth v. Blundell, 1 Mer. 233.) Still, as questions arise even at he present day, as to whether a mere charge of debts, legacies, or any other charge authorizes the executors, either alone or together, with the person or persons in whom the real estate is vested to effect a sale (see Dolton v. Haven, 5 Mad. 9; Forbes v. Peacock, 11 Sim. 152; Tylden v. Hyde, 2 Sim. & Stu. 238; Bull v. Harris, 4 Myl. & Cra. 264; Gosling v. Carter, 1 Coll. 644), it will be proper in every case, in addition to charging the real estate in aid of the peronalty, to confer an express power of sale upon the executors or trustees of the vill. In addition to which it will be also proper to authorize that the executors WILLS. No. V. Charge of aid of Trustees to raise the same by sale or mortgage. shall be charged with the payment thereof in aid of my said personal estate. Real Estate in 2. AND I HEREBY AUTHORIZE AND EMPOWER [the said the Personalty. (trustees), and the survivor of them, his executors or administrators, or other the trustees or trustee for the time being of this my will](6) in their or his absolute discretion, and if and when he or they shall think fit, but not otherwise, by sale or mortgage of my said freehold and copyhold hereditaments and premises, or a competent part thereof, or out of the rents and profits thereof in the meantime, or by all or any of the ways or means aforesaid, as to my said [trustees or trustee] (c) shall seem expedient, to raise and levy all such sum and sums of money as may be necessary to make good the deficiency of my personal estate. Trustees' receipts to be a sufficient discharge. 3. AND I HEREBY DECLARE that the receipt or receipts of [the trustees or trustee for the time being acting in the execution of the trusts of this my will] (d) shall be an effectual discharge for so much money as therein shall be expressed to have been received, and the person or persons paying the same shall not be obliged to see to the application thereof, or to inquire into the necessity or expediency of any such sale or sales, or whether my personal estate shall have been gotten in or applied for the purposes of my will, or trustees effect a sale, although the personal estate may not be gotten in. as also a clause to exonerate the purchasers from inquiry as to whether the personal estate has been gotten in or has proved insufficient for the purposes of the will, as it has been said that in the absence of a provision of this kind, unless the personal estate proves deficient the power of sale will not arise; and it often happens that the getting in the personal estate is attended with considerable delay and difficulty, during which time, if no such provisions as those above suggested are inserted in the will, a purchaser could not be compelled to take a title so circumstanced. (b) If no trustees are appointed by the will, substitute for words within brackets "my executors hereinafter named." (c) If there are no trustees, substitute for words within brackets "my said executors." (d) If no trustees are appointed, substitute "my said executors." or whether the same shall or shall not have proved insufficient for all or any of the purposes aforesaid. WILLS. No. V. Charge of Real Estate in aid of Trustees 4. AND I HEREBY EXPRESSLY AUTHORIZE AND EMPOWER [the said (trustees), and the survivor of them, his executors or the Personalty. administrators, or other the trustees or trustee for the time being of this my will], to raise and levy by all the ways means as aforesaid, such sum or sums of money as they or he think proper, although my personal estate and effects shall not should not be actually have been gotten in and applied for the purposes of this got in. my will. and empowered to may although the personal estate raise the money, No. VI. WILL, BY WHICH TESTATOR GIVES DIRECTIONS AS TO HIS FUNERAL, BEQUEATHS A LEGACY OF 1001. TO HIS WIFE, TŪ WHOM HE ALSO BEQUEATHS HER PARAPHERNALIA, WEARING APPAREL, JEWELS, &c., TOGETHER WITH HIS HOUSEHOLD FURNITURE, PLATE, &c. HE ALSO DEVISES HIS DWELLING-HOUSE TO HER DURING WIDOWHOOD, WITH REMAINDER TO HIS ELDEST SON IN FEE. THE RESIDUE OF THE REAL ESTATE IS GIVEN TO TRUSTEES, UPON TRUST TO SELL, AND INVEST THE PROCEEDS IN THE FUNDS, OR UPON REAL SECURITIES, AND TO PAY THE DIVIDENDS TO TESTATOR'S WIDOW DURING WIDOWHOOD, AND AFTER HER DECEASE OR FUTURE MARRIAGE, UPON TRUST FOR ALL HIS CHILDREN WHO, BEING SONS, SHALL ATTAIN TWENTY-ONE OR BEING DAUGHTERS, SHALL ATTAIN THAT AGE OR MARRY; THE ISSUE OF CHILDREN DYING IN TESTATOR'S LIFETIME TO BE SUBSTITUTED IN THEIR PARENT'S PLACE; WITH PROVISIONS FOR MAINTENANCE AND ADVANCEMENT; APPOINTMENT OF EXECUTORS; AND ALSO OF GUARDIANS FOR CHILDREN. 1. Commencement. 2. Directions as to testator's funeral. 3. Bequest to wife of 1001. 4. Bequest to wife of paraphernalia, wearing apparel, jewels and trinkets, &c. 5. Also household furniture, plate, linen, china, books, wine, &c. 6. Devise of residue of real and personal estate to trustees. 7. Habendum. 8. Trust to permit wife to occupy dwelling-house during widowhood. 9. Remainder to testator's eldest son in fee. 10. As to residue of real and personal estate. 11. Upon trust to sell. 12. Trustees to stand possessed of moneys arising from sales, or to be collected and got in. 13. First to pay expenses of sales, collecting, &c. 14. To invest in the funds or upon 15. No change of investment to be 17. Upon trust to pay interest to wife |