tamentary expenses, are to be paid. That would charge the real estate as well as the personal: but the personal estate must be first applied. According to the common construction the personal estate is pointed to by that clause, as the fund first applicable. The specific articles then given to the testator's wife are taken out of that fund. The next disposition charges the real estate, as an auxiliary fund, with the debts and legacies. If the testator intended the debts to be charged exclusively upon that part of his property, such intention would have been shewn. The word "real" in the residuary clause can have no meaning, all the real estate being given before, except to shew, he did not mean the personal estate to be exempt. Burton v. Knowlton has these remarkable words "not before specifically disposed of;" which are wanting in this will. Can the Court find words in this will to authorise a sale of the freehold estate; for the leasehold cannot be sold? The real property is limited with a view to keep it in his family. There is no case, in which, the will containing such a general direction as this for the payment of the debts, any gift of the residue afterwards has been held discharged without an express exemption. Samwell v. Wake; † Noke v. Darby.t By a residuary disposition the testator only means, that he will not die intestate as to any part of his property: and with that view he throws in the words "real estate." Mr. Stanley, in reply: There are other parts of the property taken out of the residue: viz. after the legacies to the wife all his money in the funds; which he takes out of the personal estate; and has appropriated to this fund. It is not therefore to be considered the general residue after payment of the debts, but after those specific articles are taken out of it, either for the wife or for this purpose. It has been considered in all the modern cases, that an express exemption is not necessary; the dispute has always been, what constitutes demonstration plain; and there has been a good deal of cavil upon the expression "irresistible inference." Under this trust an ample fund is provided, even without resorting to the real estate but if it should prove very inconvenient to pay † 1 Br. C. C. 144. 3 Br. P. C. 290. HARTLEY v. HURLE. July 31. [ *545] the debts out of the rents or dividends, the Court would apply the capital. THE MASTER OF THE ROLLS: The only question, that remains in this cause, is, whether the personal estate given to the daughter of the testator is exempted from the payment of his debts. The effect of the will is, that, after a general direction, that the debts and funeral and testamentary expenses shall be paid, which I consider as a direction to his executors to pay them, the persons who take the personal estate, and which operates as a trust upon them to pay those debts, he gives certain parts of his personal estate to his wife. *He then creates a fund; which he vests in two trustees, who are two of his executors, for the purpose of doing that which he had before directed to be done, to pay his debts and funeral and testamentary expenses, and not only those, but likewise his legacies. The legacies therefore are without all doubt charged only on this fund. The fund thus created consisted of the testator's real estate and a part of his personal estate. After creating this fund he gives the annual produce of it, subject to the debts, legacies and annuities, to his daughter, as I conceive, to her sole and separate use. The direction is to pay into her proper hands. After her decease the trust is declared for his grand-daughter at twenty-one or marriage; and then follows the residuary clause. It was contended, that this is a specific gift of the personal estate undisposed of to his daughter exempt from the payment of his debts. Whatever might have been my opinion upon this case before the case of Tait v. Lord Northwick, I must now be extremely cautious, before I proceed to decide upon this point beyond the case of Burton v. Knowlton; for it is extremely clear, the noble Lord, who decided Tait v. Lord Northwick, intimated a strong doubt of the propriety of my determination. I have had occasion, and have taken great pains, to consider that case very † According to later authorities these words are not sufficient to create separate estate (Tarsey's Trust (1866) L. R. 1 Eq. 561, 566, 35 L. J. Ch. 452), except perhaps when the grantor is husband of the grantee (Surman v. fully, since this was argued last night; and I think, if I was to decide it again, I should still be of the same opinion. But there are many distinctions between that case and this. First, in that the will does not set out with any direction for the payment of the debts. The testatrix begins with a devise to trustees in trust to pay all the debts and funeral expenses; and after having so done and having disposed of the surplus of that fund, and of part of her personal estate, she gives to her executor, not in trust for himself, but for such uses as she should appoint, the residue of her personal estate not before specifically disposed of, and, for default of appointment, to him for his own use and benefit. The residuary clause in this will is not a specific gift at all, except with reference to what is before given. It is not merely personal estate, but the rest and residue of his real and personal estate not otherwise given; whereas he had given all his real estate before in trust for the payment of his debts; and I must admit, his funeral *and testamentary expenses are included. It is impossible to suppose it anything more than a gift of what was not before given, not as a specific bequest, but of what might have been omitted; not to the separate use of his daughter, but to her generally; not to be paid into her proper hands. So, it appears to be, that after a general direction for the payment of his debts and funeral and testamentary expenses he gives all his real estates and a considerable part of his personal estate, his money in the funds, to trustees for the payment of his debts, &c.; and then makes this general residuary disposition. However I may be more liberal than others in construing a will in favour of the legatee of the personal estate, and nine times in ten I really believe upon such gifts the Court by its rules has violated the intention, yet, whatever may be my own idea upon it, I will not set that up against the rules, that have been laid down by great men; and from all the cases, The Duke of Ancaster v. Mayer, and all the others, I find, that, unless there is a necessary implication, the personal estate shall not be exempt. I have before had occasion to comment upon the sort of implication. It cannot be an irresistible inference; but that inference, that leaves no doubt upon the mind of the person to decide. But I find no case, as has been fairly admitted, in which the testator, after beginning HARTLEY v. HURLE. [ *546 ] HARTLEY v. HURLE. with a direction for the payment of the debts and funeral expenses, which naturally fall upon the personal estate, and are to be paid by the executors, has created a fund for his debts and funeral expenses, and then given the residue by such words, (for it is not given to the separate use of his daughter) and it has been held, that he meant that trust fund as anything more than auxiliary, if the personal estate should be deficient; and with that impression I am not at liberty to decide in favour of the residuary legatee as to the exemption of the subject of that residuary disposition; which I consider as only general words thrown in, perhaps without any definite intention. Therefore with some reluctance, but bound down by the authorities, I decide, that there is not sufficient in this residuary disposition to exempt it from the payment of the debts. WHITE v. WHITE. (5 Vesey, 554—555.) FOR the report of this case see 4 R. R. 161. 1796. July 9. 1800. Aug. 13. Rolls Court. ARDEN, M.R. [578] PARSONS v. PARSONS. (5 Vesey, 578-583.) A contingent legacy failed: the event, which happened, not being provided for; and no necessary implication in favour of the legatee. WILLIAM COLE by his will bequeathed to his executors 1,6001. 3 per cent. Consolidated Bank Annuities; in trust to pay the interest, dividends, and profits, thereof, as the same should from time to time become due and payable from the time of his decease, unto Isabella Henwood, then residing with his wife Mary Cole, until three months next after the decease of his said wife; and in case the said Isabella Henwood should be then living, and should have attained the age of twenty-one years, then in trust to pay, transfer and assign, the said 1,600l. 3 per cent. Annuities unto the said Isabella Henwood to and for her own proper use and benefit, together with all such arrears of interest, dividends and profits, as should or might be due thereon: but in case the said Isabella Henwood should happen to depart this life before the end of three months next after the decease of his said wife Mary Cole under the age of twenty-one years and unmarried, then and in such case he directed, that the said legacy of 1,6001. 3 per cent. Annuities should sink into and become part of the residue of his personal estate; and in case Isabella Henwood should survive his said wife, and at the time that she should become entitled to a transfer of the said Bank Annuties she should be married, then he directed, that his executors should pay, &c. the said 1,600l. unto such person and persons, and for such ends, intents and purposes, as she should notwithstanding her coverture by any deed or deeds, instrument or instruments in writing, executed in the presence of two or more witnesses appoint: so as the same might be received and enjoyed by her and her children, if any, free from the debts, control, or engagement, of any husband she might happen to marry; for which purpose he directed, that the receipt and receipts, appointment and appointments, of the said Isabella Henwood alone should from time to time notwithstanding such coverture be sufficient discharges to his said executors and trustees to all intents and purposes whatsoever, without her husband joining therein; and in case the said Isabella Henwood should happen to depart this life, before she should have attained the age of twenty-one years, leaving lawful issue, then he directed, that his executors, &c. should transfer, assign, set over, and divide, the said sum of 1,6001. Bank Annuities or the produce thereof unto and among all and every the child and children of the said Isabella Henwood lawfully begotten, who should be living at the time of her decease, share and share alike, if more than one; and if but one, unto such only child. But in case any of the said children should happen to depart this life before the age of twenty-one years, then he directed, that the share or shares of him, her, or them, so dying should belong to and be equally divided between and among the survivors or survivor of him, her, or them, so dying. He gave all the rest, residue, and remainder, of his personal estate and effects to his three executors and Isabella Henwood, their heirs, executors, administrators and assigns, for ever. Isabella Henwood after the testator's death married Robert PARSONS v. PARSONS. [ *579 ] |