Reports of Cases

DECIDED IN ALL

THE COURTS OF EQUITY AND COMMON LAW IN IRELAND, AND IN THE HOUSE OF LORDS.

HOUSE OF LORDS.

charged on the real estates of the testator; but if they were, then Michael Browne must be taken to have

Reported by JAMES PATERSON, Esq., of the Middle Tem- mortgaged such real estate to pay the legacies, and

ple, Barrister-at-Law

GREVILLE v. BROWNE -July, 29. Will-Devise-Residuary devise-Charge on real estate of legacies.

B., by will, bequeathed to M B £1000, and to A B £5000, and “as to all the rest of my real and personal property, I bequeath and devise the same to my son Michael in the fullest manner I can, with liberty to him to dispose of the same as he thinks proper." Michael having afterwards mortgaged the real estate. Held (affirming the decision of the Lords Justices in Ireland) that the legacies were well charged on the real estates devised to Michael, and that there was no power in Michael to sell the land discharged from the legacies.

the mortgagees ought not to be considered as bound to see to the application of the mortgage money.

R. Palmer, Q C. and Lawless, for the respondent, contended that the legacies were well charged on the real estates, and no power was given either expressly or by implication to Michael Browne to dispose of the lands discharged of the legacies.

Cur. adv. vult.

The LORD CHANCELLOR (Campbell).-My Lords in this case I am of opinion that the decision of Mr. Commissioner Longfield and Mr. Commissioner Hargreave, confirmed by the Lord Chancellor of Ireland and the Lords Justices of Appeal in Ireland, is right; and I think that if your lordships were to come to a contrary conclusion, you would disturb the well settled and useful rules of property which have prevailed for a century and a half. My Lords, the first question is, whether these legacies are a charge upon the real estate. If it were res integra, and we had to construe this will by the language employed, without any reTHIS was an appeal from the Lords Justices in Ire- ference to the construction which has been put upon land, as to the construction of the will of John Brown. similar language in other wills, I should allow that The will, dated 27th Jan., 1825, after giving certain there is great force in the very able and ingenious legacies generally to his widow Magaret Browne, and argument we have had from the Bar. It might well the respondent Anne Browne, gave all the rest and be supposed that the testator had no notion whatresidue of his property, real and personal, to his son soever of charging the land with these legacies; but Michael. The testator died in 1825, and his son we find that from the time of Lord Macclesfield and Michael entered into possession of the real estates. In Lord Cowper down to the time of Lord Cottenham 1846, Michael mortgaged the same for £30,000, and and Vice-Chancellor Page Wood, a rule has prevailed they were afterwards sold by the Commissioners of upon this subject which has been acted upon uniformly Incambered Estates. The question then raised was, by all judges, except one, Lord Alvanley--a very whether the legacies to Margaret and Anne Browne eminent authority (I do not mean in the slightest were charged by the will on the fee simple and free-degree to disparage him), but with that exception, by hold estates of the testator, and whether such charges all the judges that have determined such cases for were entitled to be paid or set apart and secured out of the produce of the sale in priority to the mortgage of 1846. The Commissioners of Incumbered Estates held the legacies were charges entitled to priority, and the Lords Justices of Appeal affirmed the judgment. The present appeal was then brought.

The Attorney-General (Bethell) and Moxon, for the appellants, contended that the legacies were not

nearly a century and a-half, this rule has been laid down and acted upon, that if there be a general gift of legacies, and then the testator gives the rest and residue of his property, real and personal, the legacies are to come out of the realty. It is considered that the whole is one mass-that part of that mass is represented by legacies, and that what is afterwards given is given minus what has been before given, and

of the security which he had before provided for
them? I think that no such meaning can be educed
from the language he employs; and that, therefore,
this mortgage has not the effect of discharging the
land of these legacies. My opinion is, that this
appeal should be dismissed and the decree affirmed.

Lord CRANWORTH.-My Lords, I eoncur in the opinion which has been expressed by my noble and learned friend, and I also concur with my noble and learned friend Lord Brougham, that if there had not been a single decision upon this subject, if I were only called upon to say what is the meaning of such a devise, according to the natural meaning of the words, and knowing by what class of persons they are written, I should not have the least doubt in the world that nine persons out of ten would mean exactly what the cases have interpreted the words to mean. The distinction that is suggested between real and personal property is an artificial part of the case. It is perfectly true that we know how differently real property and personal property are dealt with by our law. And in reading a devise of real estate to one

therefore given subject to the prior gift. That seems
to me to be the view which was taken in the case
before Lord Cowper, and in the case before Lord
Macclesfield. The language in which it is expressed
varies from time to time, but still that rule seems to
have been uniformly acted upon, and I would say in the
language of Wood, V.C., in the last case upon the Lord BROUGHAM.-I entirely concur with my noble
subject, Wheeler v. Howell, that in the present case and learned friend that those legacies are a charge
"I feel that I should be only introducing a useless and upon the land. The only difference of opinion that I
mischievous distinction if we he'd the legacy not to be have wi h him is, that whereas my noble and learned
a charge, the principle of the decision being, in truth, friend said, that if it were res integra, not ruled by a
the same in case of legacies as in that of debt." I, long current of decisions, there might be a doubt
therefore, my Lords, conceive it to be unnecessary to about it. I really have no doubt at all about it. In
travel over and criticise that long scries of cases which the first place I have no doubt that the decisions
seems to establish that rule as a general rule that which have been given upon this subject are strictly
must be acted upon, that the testator, in using this and logically correct; and then I have no doubt also
language in his will, must be supposed to use it accord-upon the construction of the words themselves, that
ing to the sense in which the words have uniformly the legacies are a charge upon the land.
been construed, and to mean that the legacies should
be a charge upon the real estate. Here the testator
gives the legacies generally, and then he says, "as to
all the rest, residue, and remainder of any property I
may die possessed of or entitled to, of what nature so-
ever, whether estates, freehold leases, leases for years,
stocks of every kind, also bills, bonds, notes, annuities,
or otherwise, I hereby bequeath, devise, give and
grant the same to my first object on earth, my son
Michael Joseph Brown, in the fullest manner I can.
It is quite clear that here there is first a general gift
of legacies, and then there is a disposition of the rest,
residue and remainder of the property, real and per-
sonal, of what nature soever, to his son. Therefore,
following the rule which has been so long acted upon,
these legacies are clearly charged upon the real estate.
Then, my Lords, as to the second point, the dis-person, and of personal legacies to another, and of the
charge: twenty-one years after the death of the tes-
tator, his son mortgaged the land for £50,000, and
it is allowed that upon the face of the deed there is
no reference whatsoever to those legacies. No part
of the legacies was paid; and I presume that after he
had thus charged the land with the legacies, unless
there was some special power in the will enabling the
son to sell the land discharged from the legacies, it
ean hardly be supposed that what has taken place can
amount to a discharge of the burden that was placed
upon the lands in respect of the legacies. No autho-
rity has been quoted to show that this power exists.
Is there, then, here any such special power? I am
of opinion that the words that follow what I have
read are mere surplusage. They merely express what
would otherwise be implied. This testator is fond of
a florid style; he deals in superlatives; he is very
rhetorical, and he makes use of a great many more
words than would be sufficient to accomplish his pur-
pose. He says, "I hereby devise, bequeath, give and
grant the same to my first object on earth, my son
Michael Joseph Browne, in the fullest manner I can
or shall have it in my power, with liberty to him to
dispose of the same in any way he may think proper."
We are now considering whether the lands have been
discharged of the legacies. We must consider that
they are charged with them. Then he having thus
charged the land, did he mean by these words to give
his eldest son the power of disposing of the land at any
time, so that the younger children would be deprived

rest and residue of the real and personal property to
a third, we may see that there might be a mode of
interpreting it reddeundo singula singulis—meaning to
give the rest of the personal property to one person,
and the rest of the realty to another; but that is not
the natural meaning of the words. I feel the force of
something that was said by Sir John Leach—not in
the case in Maddock, but in a subsequent case-
where, with reference to the words "the rest and re-
sidue of my real and personal estate," he says that
the rest and residue mean something after something
has been deducted. And what has been deducted?
Why, that which has been given before; and that
appears to me to solve the whole difficulty. The
Attorney-General, in his very able argument, tried to
point out a distinction which exists in some of the
earlier cases, for the purpose of showing that the gene-
rality of the rule as laid down in the more modern
cases was not warranted by those earlier decisions;
and he refers particularly to the case of Awbrey v.
Middleton as being the earliest which, as far as I
know, is the earliest case upon the subject—and he
endeavoured to distinguish that case by the circum-
stance that the legacies there were directed to be
paid by the executor, and the gift of the general resi-
due of the realty and personalty was to the executor.
He is perfectly correct in that; but it is a singular
thing that not only does Lord Cowper not put his
decision upon that, but the argument of the counsel at
the bar, adverting to that circumstance of the direc-