WARING t. WARD. [ *672 ] and premises, devised all his estate and interest therein, subject to the said annuities, and such other annuities, bequests, and directions, as by his said will or any codicil he might give, expressly charging his said estate of Ince therewith, to his wife for life without impeachment of waste; and after her death to such uses and purposes as she being sole and unmarried should by will, or otherwise, as therein mentioned, appoint, subject as aforesaid so as such appointment should not take effect, till such parts of his lands in Shrewsbury as were in mortgage to Mary Owen should be discharged therefrom; and in default of such appointment then to his own right heirs, subject as aforesaid; and farther reciting, that before his marriage with his then wife she had conveyed all or a considerable part of her messuages, lands, &c. in the county of Flint to trustees upon trust, that they should, so soon as the testator should require, by mortgage thereof raise 3,000l., to be applied in the first place to pay off the principal and interest of a mortgage of 1,8501. upon his estate at Oswestry, such mortgage to be thereupon assigned in trust to attend the inheritance of the premises therein comprised for the benefit of the person, to whom the same was by the same indentures limited, the residue of which 3,000l. was to be paid to the testator, his executors, administrators and assigns, he thereby directed, unless as thereinafter provided, that the trustees should as soon as convenient, raise such 3,000l. and therewith discharge the mortgage, and pay to his wife the residue of the said 3,000Z.; which he gave to her, together with all the rest of his personal estate; upon trust to discharge all his debts, for which at the time of his decease he should not have given real securities, and all such bequests and annuities (not including those before mentioned) as he should therein or * by codicil give, and with which he should not expressly charge his estate in Ince; and to keep the residue of the said 3,000l. and of all other his personal estate to her own use: provided, that if she should by any other means discharge the said mortgage and his said debts, and should pay all such bequests and annuities, (not including those before granted), the said 3,000l. need not be raised, as aforesaid. By indentures of lease and release, dated the 13th and 14th of March, 1797, declaring, that the sum of 30,000l. was the money, not of Sir John D'Oyley and John Scott Waring, but of Mrs. Hastings, they by her direction assigned 20,000l. to Charles Imhoff, son of Mrs. Hastings, and two thirds of the premises comprised in the indentures of 1791 subject to redemption; and by lease and release, dated the 11th and 12th of May, 1797, the remaining interest in the mortgage, as to 10,000l., was assigned to Sir John D'Oyley and other persons. The testator's wife Margaret, the daughter and heir at law of Sir George Wynne, died in the testator's life; and he married again. He died upon the 20th of October, 1798; leaving John Scott Waring, his heir at law. The testator's widow took out administration with the will annexed; and she married Ward. The bill was filed by the heir at law; charging, that the mortgage was not the old burthen upon the estate, when the testator purchased; but that he mortgaged the same in manner aforesaid; and he personally borrowed 30,000l.; and pledged the estate as a collateral security for repayment; and did not purchase the said estate or any part thereof subject to such debt; and praying, that the real estate might be exonerated. The defendant Ward and his wife by their answer claimed the personal estate. Mr. Lloyd, Mr. Richards, and Mr. Short, for the plaintiff : The will affords no inference of an exemption of the personal estate in favour of the next of kin. The recitals of the conveyance and the order are to the same effect. That mortgage to Sir Robert Cunliffe is clearly an encumbrance imposed by the testator himself; and if so, the personal estate is first liable; unless there is something in the will making an alteration. Perhaps he might have intended his personal estate to go to his wife discharged from the incumbrances: but by her death in his life that bequest lapsed. The personal estate therefore is not disposed of by the will; and must be applicable to this debt imposed by the testator himself. Mr. Sutton and Mr. Steele, for the defendants: First, the effect of the will is expressly to charge the real WARING v. WARD. [673] WARING V. WARD. [ 675 ] [ *676 ] estate, and exempt the personal estate but if the Court is against the defendants upon that, secondly, the sum of 17,8521. 12s. 9d. was the whole incumbrance on the estate at the time of the testator's purchase; and therefore the personal estate is not applicable to that. They cited Tweddell v. Tweddell, 2 Br. C. C. 101, 152.] Mr. Lloyd, in reply, was stopped by the Court. THE MASTER OF THE ROLLS: The only question before me now is upon the will; whether the personal estate is discharged from the testator's debts secured by mortgage. I have a pretty strong opinion upon the other point, that has been argued but it would be improper to decide that, till it is ascertained, whether the personal estate is sufficient for those charges, to which under the circumstances it is clearly liable. : With respect to the question now to be determined, I have no difficulty in declaring, that it is impossible upon this will to raise any presumption, that the testator meant to exempt the personal estate in favour of this defendant from those debts, which, if there is no exemption, will be a charge upon it. I could refer to many cases, and one before Lord THURLOW, that is quite analogous, in which this has been determined: but upon principle, without referring to the authorities, nothing is more clear, than that if there is any gift in favour of a particular legatee, and he dies, no benefit that legatee could have claimed, if he had survived, can be set up against the persons, to whom the estate would come subject to the disposition in favour of that legatee, if he had lived. If for instance an estate *had been given to A. and the personal estate to B. exempt from debts, that exemption is to be considered as intended only for the benefit of B., that he shall not pay those debts, to which he would be liable, if no such provision had been made; and is not a general exemption of the personal estate. + It was subsequently decided by Lord ELDON, that the testator had adopted the mortgage debt as his own, and that his personal estate was liable to exonerate the mortgaged estate independently of the will (7 Ves. 332).—O. A. S. CAMPBELL . WALKER.† (5 Vesey, 678-683; 13 Vesey, 601–604.) There is no rule that a trustee to sell cannot be the purchaser; but, however fair the transaction, it must be subject to an option in the cestui que trust, if he comes in a reasonable time, to have a re-sale; unless the trustee, to prevent that, purchases under an application to the Court. Costs apportioned. EDWARD HALL by his will gave all his freehold, copyhold and leasehold, estates, and all his personal estate, with some exceptions, to have and to hold unto John Walker and William Clarke, their heirs, executors, and administrators, upon trust, as soon as conveniently may be after his decease to sell for the best prices, that can reasonably be had; to the intent that all his estate and effects may be turned into money, as soon as conveniently may be after his decease; and for the facilitating and corroborating any sale or sales, that may be made, the testator declared, the receipt of his said trustees should be a discharge to the purchasers. He then gave particular directions for selling his estates in lots, in case his said trustees and executors shall not see cause to the contrary: the Link Farm to be one lot; the Quarry Brewhouse another. Then after several legacies the testator gave all the residue among the plaintiffs at their ages of twenty-one. The trustees in execution of the will proceeded to sell the premises; putting up the Link Farm, and afterwards the Quarry Brewhouse in separate lots and at different times. The Link Farm was purchased by John Clarke in trust for William Clarke, the trustee, for 1,450l., being 101. more than he was directed to bid: but William Clarke agreed to take it. At a subsequent auction John Clarke purchased the Quarry Brewhouse in trust for John Walker and William Clarke for 6,3107. The bill was filed on behalf of the residuary legatees, still under age; praying, that the sales might be set aside, and the premises resold. Upon the evidence the sales were perfectly fair and open. It was declared immediately afterwards, who were the purchasers. The premises were duly advertised; and several † Boswell v. Coaks (1883) 23 Ch. D. 302, 310, 52 L. J. Ch. 465 (affirmed in H. of L. nom. Coaks v. Boswell (1886) 11 App. Ca. 232, 55 L. J. Ch. 1800. Dec. 3. Rolls Court. ARDEN, M.R. 1807. June 5, 7. ELDON, L. C. [ 678 ] CAMPBELL bidders were present at the sales. It was also in evidence, that v. WALKER. [679] the trustees endeavoured to persuade the tenant of the Quarry Brewhouse to purchase it. At a previous sale the trustees had bought that lot for 6,040l.: but they had it put up again; determining to pay that sum, if it should not produce more. Mr. Lloyd and Mr. Steele, for the plaintiffs cited Whelpdale v. Cookson, Fox v. Mackreth, Crowe v. Ballard,§ and Whichcote v. Lawrence (3 Ves. 740). Mr. Richards and Mr. Hubbersty, for the defendants: It is not now disputed, that the trustee may be the purchaser. The trustee may possibly give a great deal more than the value, pretium affectionis. The Court would not order a release, if it should plainly appear to be for the benefit of the cestui que trust, that it should not be resold. The rule therefore is not universal: but the Court will require the trustee to shew, that it is not for the benefit of the cestui que trust, that there should be a resale. Whichcote v. Lawrence is a very particular case. The plaintiffs there produced positive evidence of fraud; and there is no case of this sort, in which the allegations of the bill have not been sustained by evidence. In this case no evidence is produced by the plaintiffs; and the bona fides, with which the defendants have acted, is clearly made out by them. Every thing has been done, that could be done, for the advantage of the estate; and the trustees have given more than any other person would give. The trustees employed a person to bid for them, merely to avoid the inconvenience of deterring other persons from bidding against them. The will gives special directions to sell; and the testator himself marks out the lots. It was very material to sell in that way. If this purchase is not established under these circumstances, trustees will feel it extremely dangerous to act in any degree. † 1 Ves. sen. 9, stated from the Re- 2 R. R. 55 (2 Cox, 320). That case turned upon special LOUGHBOROUGH) determined the case independently of the general rule, which is more clearly stated and illustrated in the present case of Campbell v. Walker than in any previous case.-O. A. S. |