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that they are payable by the legal personal representatives of the testator (in whom the whole personal estate rests by law) out of the personal estate not specifically bequeathed. The presumption is that the testator intends them to be so paid. Unless charged upon it by the will, they are not payable out of the real estate.
The principle of the exemption of personal estate specifically Specific bequeathed is, that it is necessary to give effect to the intention bequests. apparent by the gift. If the bequest is of a particular chattel, such as a horse or a ship, it is manifest that the testator intended the thing itself to pass unconditionally and in statu quo to the legatee, which could not be if it were subject to the payment of general and testamentary expenses, debts, and pecuniary legacies. As against creditors the testator cannot wholly release it from liability for his debts, but as against all persons taking benefits under his will he may. The same principle applies to everything which a testator, identifying it by a sufficient description and manifesting an intention that it should be enjoyed or taken in the state or condition indicated by that description, separates in favour of a particular legatee, from the general mass of his personal estate, the fund out of which pecuniary legacies are in the ordinary course payable (1).
It will now be necessary for us to consider the important changes to which we have previously alluded, as made by Locke King's Act and the Amending Acts.
Prior to the passing of the statute 17 & 18 Vict. c. 113, known Locke as Locke King's Act, which applies only to cases where testa- King's Act. tors or intestates die after the 1st of January, 1855, the general rule was, that an heir-at-law or devisee to whom real estate subject to a mortgage or charge descended or was devised, was entitled to have the mortgage or charge paid out of the general personal estate (2).
That important statute provided "that where any person shall after the thirty-first day of December one thousand eight hundred and fifty-four die seised of or entitled to any estate or interest in any land or other hereditaments, which should at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, and such person should not by his will or deed or other document have signified any contrary or other intention, the heir or devisee to whom such land or here
(1) Robertson v. Broadbent, 8 App. Cas. 812, 815. See Re Bate, 43 Ch. D. 600, as to apportionment where personal estate insufficient; Re Harrison
43 Ch. D. 55.
(2) See as to the exceptional cases under the old law, Jarman on Wills, vol, ii. 4th ed. p. 634, et seq.
ditaments should descend or be devised should not be entitled to King's Act. have the mortgaged debt discharged or satisfied out of the personal estate or any other real estate of such person, but the land or hereditaments so charged should as between the different persons claiming through or under the deceased person be primarily liable to the payment of all mortgaged debts with which the same should be charged, every part thereof according to its value bearing a proportionate part of the mortgage debts charged on the whole thereof."
30 & 31
The Act then went on to provide that nothing therein contained should "affect or diminish any right of the mortgagee on such lands or hereditaments to obtain full satisfaction of his mortgage debt either out of the personal estate of the person so dying as aforesaid or otherwise. Provided also that nothing therein contained should affect the rights of any person claiming under or by virtue of any will, deed, or document already made or to be made before the first day of January one thousand eight hundred and fifty-five."
This Act was followed by Locke King's Amendment Act Vict. c. 69. (30 & 31 Vict. c. 69), which, as Sir George Jessel said, was an explaining and construing Act, which "politely overruled" the previous decisions of the Court and provided that in construing wills of persons dying after the 31st of December, 1867: (1) A general direction that the debts or that all the debts of the testator should be paid out of his personal estate, should not be deemed to be a declaration of an intention contrary to or other than the rule established by the said Act, unless such contrary or other intention shall be further declared by words expressly or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate; and
40 & 41
(2) that in the construction of both Acts (i.e. 17 & 18 Vict. c. 113, and 30 & 31 Vict. c. 69) the word "mortgage' should be deemed to extend to any lien for unpaid purchase-money upon any lands or hereditaments purchased by a testator.
Two omissions in the Act of 1867, which were made the Vict. c. 34. subject of judicial decision, viz. that it had no application to cases of intestacy or to leaseholds for years, were supplied by 40 & 41 Vict. c. 34 (1), which applies to the cases of all testators
(1) Harding v. Harding, L. R. 13 Eq. 493; Solomon v. Solomon, 12
W. R. 540; Re Wormsley, 4 Ch. D. 665.
and intestates dying after the 31st of December, 1877. This Act extends the application of the two former Acts, and provides that these two Acts should as to any testator or intestate dying after the thirty-first of December, one thousand eight hundred and seventy-seven, be held to extend to a testator or intestate dying seised or possessed of or entitled to any land or other hereditaments of whatever tenure which should at the time of his death be charged with the payment of any sum or sums of money by way of mortgage or any other equitable charge, including any lien for unpaid purchase-money, and the devisee or legatee or heir should not be entitled to have such sum or sums discharged or satisfied out of any other estate of the testator or intestate, unless (in the case of a testator) he should within the meaning of the said Acts have signified a contrary intention; and such contrary intention should not be deemed to be signified by a charge of or direction for payment of debts upon or out of residuary real and personal estate, or residuary real estate (1).
Attention may here be directed to the rights of retainer, and Retainer and preferpreference possessed by executors and administrators.
An executor or administrator may pay even a simple contract creditor in preference to a specialty creditor (2), and he may pay debts though statute barred. He has also a right of retainer, i.e. a right to retain part of the estate in satisfaction of a debt due to himself, but only as against creditors of equal degree with himself (3).
In connection with the subject of administration, the doctrine Marshalling. of "marshalling" may also be briefly noticed. The principle of the Court here is, that a creditor who has a right to resort to two funds shall not by his choice disappoint another who has one only (4). It must, however, be borne in mind that this doctrine is now of considerably less importance than it was in the old days when real estate was not in the absence of an express charge liable for simple contract debts (see ante, p. 46).
With regard to charities, the rule is that the Court will not
(1) See In re Rossiter. Rossiter v. Rossiter, 13 Ch. D. 355; In re Cockcroft. Broadbent v. Groves, 24 Ch. D. 94; In re Smith. Hannington v. True. Giles v. True, 33 Ch. D. 195; Brett's Leading Cases in Equity, p. 218.
(*) Re Orsmond, 58 L. T. 24; and see Re Rownson, 29 Ch. D. 358, and notes thereto; Brett's Leading Cases
in Equity, p. 156, et seq. This right
(3) Re Jones, 31 Ch. D. 440. A
(4) Trimmer v. Bayne, 9 Ves. 209.
marshal assets in favour of a charity by throwing the debts and ordinary legacies upon the proceeds of the real estate and the personalty savouring of realty, in order to leave the pure personalty for the charity. But if the testator gives a direction to marshal, the Court will carry it into effect (1).
The rule of the Court in such cases is to appropriate the fund as if no legal objection existed as to applying any part of it to the charity legacies, then holding so much of it to fail as would in that way be payable out of the prohibited fund.
See as to practice in administration, post, pp. 708, 784, et seq.
() Mogg v. Hodges, 2 Ves. 52, and see Tyssen's Law of Charitable Trusts, p. 485, et seq. See also as to
the doctrine of marshalling, notes to Webb v. Smith, Brett's Leading Cases in Equity, p. 222.
The law as to partition is now almost wholly governed by the Partition Partition Acts, 1868 (31 & 32 Vict. c. 40), and 1876 (39 & 40 Vict. c. 17).
Prior to the passing of the first of these Acts partition was regarded as a matter of right, and could be insisted upon, no matter how inconvenient or even ruinous the consequences might be to the other party. This sometimes led to very absurd results. In one case the partition of a house was carried into effect by building up a wall in the middle, and in another the defendant in vain objected on the ground that the commissioners had allotted to the plaintiff the whole stack of chimneys, all the fire-places, the only staircase, and all the conveniences in the yard. Now a very extensive jurisdiction has been given by the Partition Acts with regard to ordering a sale of property which is made the subject of a partition action (2).
Sect. 3 of the Partition Act, 1868, gives the Court power in a suit (now action) for partition where, if the Act had not been passed, a decree for partition might have been made, to direct a Partition sale and distribution of the proceeds (with all necessary or Act, 1868. proper consequential directions) instead of a partition at the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, if the Court is satisfied that a sale and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property by reason of either:
(1) The nature of the property to which the suit relates;
(1) All causes and matters for the partition or sale of real estates are assigned to the Chancery Division of the High Court of Justice by the 34th section of the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66). Jurisdiction to partition copyholds was conferred by 4 & 5 Vict. c. 35, amended by 21 & 22 Vict. c. 34.
(2) In Griffies v. Griffies, 11 W. R. 943, where the principle was laid down that where one tenant in common refused to consent to a sale he could insist on partition, if he thought proper, although the costs would probably swallow up the whole property; and see further in Brett's Leading Cases in Equity, p. 46.