Blundell.

as the same should remain in the hands of his trustees, Bootle v. with particular directions as to his salary and conduct, and afterwards proceeded as follows: "And it is my will that as soon as the debts hereby charged on my said estate, and the legacies or sums of money hereby given, are paid and satisfied, and as soon as such satisfactory security shall have been given by my said trustees for the due payment of the said annuities and all expenses as shall satisfy the said annuitants, and when all expenses incurred in the execution of the said trusts respecting the said term and of this will shall be fully paid, then the person or persons who shall at that time be next entitled to the same estates under and by virtue of the limi tations in this my will contained, shall be let into the possession thereof "(n). The testator then provided for the appointment of new trustees in certain events, who were to be allowed out of the rents and profits of the estates comprised in the term of five hundred years the sum of 300l. He also devised one-half of the manor of Lydiate, and all the lands purchased by him in Ince, &c., not therein before disposed of, to the use of his son C. for life, with remainders over; and directed that all his pictures, drawing-books, prints, statues, and marbles, should be enjoyed by his son during his life, and after his decease he gave the same to the first son of his body who should attain twenty-one; his intention being that they should go along with the capital messuage called Ince Hall. After devising to J. certain lead mines, and to M., his housekeeper, several articles of furniture and other things, which he directed should be removed by his executors at the expense of his personal estate, the testator bequeathed to his said son the furniture of his house, his wines, horses, cattle, and carriages, plate, and other his goods, chattels, and personal estate not thereinbefore specifically disposed of, or which might thereafter be disposed of by him; and appointed the said A., B., and C. executors of his will, providing that immediately after his decease his executors. should enter into his dwelling-house, and take into their custody all moneys and papers there found. By a codicil the [*1482] testator, after noticing the devise to his son of his estate at Lydiate, and that attempts might be made to invalidate some of the dispositions of his will or codicil, and the trustees and executors, or other devisees, might incur expenses in supporting the Bootle v. same, which expenses it was his will should be paid out Blundell. of the said lands, and not be a charge upon any other part of his property, he thereby devised the said Hall, manor, &c., unto the said A., B., and C., trustees and executors named in his said will, their executors, administrators, and assigns for the term of one thousand. years, in trust by sale, lease, or mortgage, or out of the rents and

(n) This clause is very important, for the testator could hardly intend that the devisees should be kept out of possession until the whole personal estate was administered, which would be the consequence of holding it to be not exempt from the debts.

profits, to raise such moneys as should be sufficient to pay all expenses which should be so incurred.

The question was, whether the estates comprised in the term of 500 years were liable, in the first place, to the payment of the testator's Lord Eldon's debts in exoneration of the personal estate. Lord Eldon, judgment. after much consideration, and reviewing most of the authorities, held that it was: he adverted to the circumstance, that though the same persons were trustees and executors, the two characters were anxiously kept distinct; the testator never using the word "executors" but with reference to the personal estate, nor the word "trustees" but with reference to the real estate; that the clause charging the expenses on the estates devised, having blended together the costs attending the real and personal estate, made it impossible to say that the testator could have meant that the costs of the real estate should be paid out of the real estate, but that the costs of the personal estate should not be paid in the same manner except in the case of a deficiency of the personal estate; that the proviso for cesser amounted to a direction that his funeral expenses should not be paid out of his general personal estate; that the costs of the real and personal estate should be paid in the same manner; and that the persons respectively entitled under his will should not be let into possession of the devised estates until security given for payment of the annuities, and until payment of the expenses of the administration not only of the real estate but of the personal estate also; that the new trustee of the term to be appointed should receive the sum of 3007. out of the rents and profits of the estates comprised in the term; that the purpose of keeping together, as objects of public curiosity the pictures, &c., sufficiently accounted for their being set aside from the

rest of the personal estate given to his son, without resort[*1483] ing to the supposition that it was merely to exempt * them from the debts and legacies to which the remainder was meant to be liable; that because the testator had charged his personal estate with the cost of removing the specific articles given to Mrs. M., it did not follow (as had been insisted) that it should also be liable to the payment of his debts and legacies; that the words "not herein before specifically disposed of " might be taken to mean specifically to dispose to his son of what was not specifically disposed of to others, and not as referring to the application of the personalty to debts, &c.; and, lastly (on which his Lordship laid much stress), that the costs incurred by the litigation of the will were to be paid exclusively out of the real estate; though he doubted whether, if there were no circumstances in the will that afforded a ground for saying the personal estate should be exempted, this provision alone in the codicil would have been a sufficient manifestation of the intention to exempt it. He nevertheless thought that it deserved great consideration.

VI.

6. Effect of Lapse.

bequest of personalty exempted lapses,

Here it may be observed that the exemption of the personalty in favor of the legatee does not necessarily extend to the next of kin, in case of the failure of the Effect where bequest thereof by lapse or otherwise. Thus it was laid down by Sir R. P. Arden in Waring v. Ward (o), that if an estate be given to A., subject to debts, and the personal estate to B. exempt from debts, that exemption is to be considered as intended only for the benefit of B. and not as a general exemption of the personal estate.

On the other hand, if the testator without bequeathing the personal estate, directed that it should not be applied in payment of mortgages, and gave the mortgaged estates to different persons, they paying out of them the mortgages, the devisees would take cum onere even as against the next of kin (p).

where personalty originally undisposed of.

The distinction is that in the one case there was an absolute bequest of the personal estate, while in the other there was none. The principle is this: there being no particular bequest of the

personal estate, and yet the testator intended to exonerate [*1484] the personal estate, it was impossible to say that he intended that exoneration for the benefit of any particular person or object, and he must be taken to have intended that the exoneration should enure for the benefit of the persons, whoever they might be, upon whom the personal estate might devolve (g).

Lapse of devise on con

dition that devisee re

Where a testator devised land on the express condition that the devisee should release a debt of 3,4007. due to him from the testator, and he bequeathed his residuary personal estate to trustees upon trust for conversion, and out of the proceeds pay his debts, except the debt of 3,400l., and to hold the surplus upon certain trusts; the devisee died before the testator; it was held by the Court of Appeal (affirming the decision of Sir E. Fry, J.,) that, notwithstanding the lapse of the devise, the land was bound in exoneration of the personalty to discharge the debt of 3,4007. (r).

leases debt due

from testator.

It has been already

VI.-7. VI. 7. Charges and Trusts distinguished. stated that under a general charge of or a trust to pay legacies, the

(0) 5 Ves. 676. See Hale v. Cox, 3 B. C. C. 322; Noel v. Lord Henley, 7 Price, 240, Dan. 211; Dacre v. Patrickson, 1 Dr. & Sim. 186; Kilford v. Blaney, 31 Ch. D. 56. See also Coventry v. Coventry, 2 Dr. & Sm. 470, where specific parts of the personalty were expressly exempted, and bequeathed to one for life, and afterwards "to fall into the residue" which was also bequeathed. But the report is obscure. The V.-C. is made to rely on Webb v. De Beauvoisin, 31 Beav. 573, where the question of charging real estate did not arise. Compare Fisher v. Fisher, 2 Keen, 610.

(p) Milnes v. Slater. 8 Ves. 305.

(9) Per Kindersley, V.-C., in Dacre v. Patrickson, 1 Dr. & Sm. 186, 189. (r) Re Kirk, Kirk v. Kirk, 21 Ch. D. 431.

Distinction

several funds liable to their liquidation are applied in the same order as in the case of debts, and therefore the general personal estate, if not exempted, is first applicable (s); but such cases are carefully to be distinguished from those in which the trust is to pay certain specified sums, as the only gift is in the direction to pay them out of the land, that fund alone is liable (†).

between a general charge of legacies and a trust to pay certain sums.

Thus where a testator devises his estate to trustees, upon trust to sell, and out of the proceeds to pay legacies generally, and afterwards gives to A a legacy of 1007., that legacy will be charged upon the land in aid of the personalty only; but if the devise be upon trust to sell, and out of the produce to pay to A. 1007., the sum so given

will be considered as a portion of the real estate, and will in [*1485] no event be payable out of the personalty, * and if the testator sell the estate in his lifetime, the legacy will be

adeemed (u). And in Spurway v. Glynn (x), Sir W. Grant thought that a direction at the end of the will, that the personal estate should be applied in payment of legacies in exoneration of the real estate, did not apply to a sum given out of a particular estate of which there was no other gift than the

Sums directed

to be paid out of specific fund.

trust so to pay it.

Charge of specified legacies on realty, and

gift of person-
alty subject
to debts.

Again, in Ion v. Ashton (y), the testator bequeathed certain legacies and annuities, and charged some of them on his lands at H., and the rest on his lands at O., and devised the estates so subject, one to A., and the other to B. He then gave all his personal estate to trustees on trust to convert and pay debts and funeral and testamentary expenses, and the expenses of proving his will and the costs of converting his personal estate, and to pay the residue to a charity. Sir J. Romilly, M. R., held that the effect was to lay upon the real estate certain charges which were specified, and then to give it subject thereto, and on the personal estate to lay other charges, and then give it subject thereto, and therefore that the annuities and legacies were charged exclusively on the real estate.

(s) Roberts v. Roberts, 13 Sim. 349; Ouseley v. Anstruther, 10 Beav. 453; Davies v. Ashford, 15 Sim. 42; Boughton v. Boughton, 1 H. L. Ca. 406, reversing 1 Coll. 35; Whieldon v. Spode, 15 Beav. 537; Patching v. Barnett, W. N. 1880, p. 135.

(t) Whaley v. Cox, 2 Eq. Ca. Ab. 549, pl. 29; Amesbury v. Brown, 1 Ves. 482; Phipps t. Annesley, 2 Atk. 57; Ward v. Dudley, 2 B. C. C. 316, 1 Cox, 438, 7 B. P. C. Toml 566; Reade v. Litchfield, 3 Ves. 475; Hartley v. Hurle, 5 Ves. 545; Brydges v. Phillips, 6 Ves. 571; Spurway v. Glynn, 9 Ves. 483: Hancox v. Abbey, 11 Ves. 179; Aldridge v. Wallscourt, i Ba. & Be. 312; Noel v. Lord Henley, 7 Pri. 241, 12 Pri. 213, Dan. 211, 322: Ricketts r. Ladley, 3 Russ. 418; Jones v. Bruce, 11 Sim. 22; Ashby v. Ashby, 1 Coll. 549; Roberts v. Roberts, 13 Sim. 345; Evans v. Evans, 17 Id. 102; Dickin v. Edwards, 4 Hare, 273; Bessant v. Noble, 26 L. J. Ch. 236. But see Holford v. Wood, 4 Ves. 78; Colvile v. Middleton, 3 Beav. 570.

(y) 28 Bav. 397. See also Lomax v. Lomax, 12 Beav. 290; Woodhead v. Turner, 4 De G. & S. 429; Sinnett v. Herbert, L. R., 12 Eq. 201.

It seems that, in these cases, if the sums in question are bequeathed free from the legacy duty, the duty will be payable out of the same fund as the legacy (z).

Legacy duty, out of what fund payable.

debts.

It does not, however, necessarily follow that the principle above stated applies to trusts for the payment of particular debts to which the personal estate was antecedently liable, and with re- Trust to pay spect to which therefore the charging the land would particular seem to be merely for the purpose of providing an auxiliary fund for those debts, not in order to discharge the personalty. The contrary indeed seems to have been assumed by Sir W. Grant in Hancox v. Abbey (a), for he held that a devise of real estate to trustees, upon trust to sell, and to pay a mortgage due on some part of the testator's property, subjected the land in the first instance, although the personalty was given "after payment of debts, legacies, and funeral expenses," but which his Honor * thought [*1486] might be construed, after payment of debts not before provided for.

to

This doctrine and decision, however, are inconsistent with the principle upon which the more recent case of Noel v. Lord Henley (b) was professedly decided. The testator devised lands Noel v. Lord upon trust for sale, and directed the trustees to stand Henley. possessed of the moneys arising therefrom upon trust to pay a mortgage debt of 2,000l. affecting one of his estates; and in the next place pay all costs, &c.; and then to pay a sum of 20,000l. due on mortgage of certain parts of the testator's other estates thereinbefore devised; and upon further trust to pay 5,000l. to his wife (which lapsed), and the sum of 3,000l. to T., both which last-mentioned sums the testator directed to be paid as soon as sufficient moneys should arise by such sale or sales after the other payments therein before directed to be made thereout, and that the same should carry interest from his death. The testator then directed his trustees out of the moneys to arise from the sale to pay so much of his other just debts, and of the pecuniary legacies thereinafter by him bequeathed, as his own personal estate or the personal estate of his uncle R. should not extend to pay; and after such payments to invest the residue of the said moneys upon trust for certain persons; and then, after giving several legacies, he declared that all his legacies should be paid without any deduction of the legacy duty; and he bequeathed all the residue of his personal estate, after payment of such of his debts as were not therein otherwise provided for, and of his legacies, &c., to his wife, with her heirs, executors, administrators, and assigns, and appointed his said wife and two other persons executrix and executors. One question was

(e) Noel v. Lord Henley, 7 Pri. 241, Dan. 211. See also Stow v. Davenport, 5 B. & Ad. 359. But generally a gift of legacy duty is a mere pecuniary legacy, Farrer v. St. Catharine's College, L: R., 16 Eq. 25.

(a) 11 Ves. 179. See as to legacies, Dickin v. Edwards, 4 Hare, 273.

(b) 7 Pri. 241, Dan. 211.