KEELING บ. BROWN. [ *361 ] Williams v. Chitty; † and that, though the legacies are not mentioned in that direction, nor otherwise charged upon the real estate, yet the Court would throw the specialty debts at least upon the real estate in exoneration of the personal estate; in order that the legatees might receive payment of their legacies out of the personal estate: otherwise the legacies would not be fully paid; and the legatees would be disappointed. Mr. Piggott, for the defendant John Brown, specific devisee of part of the real estate, and residuary devisee and legatee of the real and personal estate : First, as to the debts: it is impossible to make this a charge of the debts upon the real estate. The direction is, that the debts shall be paid by the executrix and executors; no devise whatsoever of the real estate or any part of it. This is not the case of a devise of real estate, after a direction, that debts should be first paid, as in Williams v. Chitty; nor a devise of real estate after payment of debts, as in Shallcross v. Finden; but a mere direction to the executrix and executors, superfluous I admit, but still a mere direction to them, to pay out of the fund, which *was to come to them; and which it is agreed is sufficient to enable those, to whom the direction is given, to comply with it. It is true, if the personal estate of the testator was not sufficient to pay all his debts, the Court would marshal the assets for the benefit of the creditors by simple contract, and make the real estate bear the burthen of so much of the specialty debts as would be necessary to secure a fund for payment of the simplecontract creditors: but in this case it is agreed, the personal estate is amply sufficient for all the debts. Secondly, what is now pressed is, that, though the personal estate is sufficient for all the debts, the Court shall throw all of them upon the real estate, if the real estate is charged by the will; or shall throw the specialty debts upon the real estate, if not charged by the will with all the debts, in order that the personal estate may be left for satisfaction of the legacies. That would be, not making the real estate bear a charge, to which it † 3 R. R. 71 (3 Ves. 545). 3 R. R. 75 (3 Ves. 738). is by law liable, as it is to specialty debts, but imposing arbitrarily a burthen upon it neither imposed by law nor by the testator; and for that there is no authority. MASTER OF THE ROLLS: I am very clear upon both the points. Here is no charge of the debts upon the real estate; but a mere direction to the executors to pay the debts, without giving them any other fund than the personal estate, out of which they can fulfil that duty. There is no devise, no trust in them, of the real estate; which is all otherwise disposed of. I cannot, with all the disposition I always feel to give such a construction to wills as shall make testators honest, construe this into a charge upon the real estate. It would be a violence to all language, and making a will for the testator; not construing or executing that, which he has made: but it is least of all necessary in this case; for it is agreed, that the testator's personal estate, which the executors were to possess, was sufficient to enable them to pay his debts. If any of the debts were to go unpaid by the insufficiency of the personal estate, I would certainly marshal the assets; making the real estate pay as much of the specialty debts as would be necessary to obtain a *fund from the personal estate for payment of the simple-contract creditors: but here it is agreed on all hands, that it is not necessary for the payment of the debts of the testator to do so. Then, there being no charge upon the real estate for payment of debts, and there being an ample fund of personal estate for the payment both of specialty and simplecontract debts, I am asked to throw the specialty debts at least upon the real estate, that enough of the personal estate may be left for payment of the legacies; which are not charged upon the real estate; and for the payment of which I am clearly of opinion in this case there is no fund but the surplus of the personal estate, if there shall be any, after payment of all the debts of the testator. I cannot marshal the assets for payment of the legacies. I have formerly fully expressed my opinion upon this point, as to the difference between debts and legacies.† I understand, the LORD CHANCELLOR expressed some doubt about Kightley v. Kightley, 2 R. R. 224 (2 Ves. J. 328). KEELING v. BROWN. [ *362 ] KEELING v. BROWN. it in the case of Williams v. Chitty: but upon reflection I still remain of the same opinion.‡ Decree an account of the personal estate, and of the debts, funeral expenses, and legacies; and if after payment of all the debts there shall not be enough of the personal estate to pay all the legacies, the legatees must abate in proportion. There is no other fund for their payment. 1800. May 13, 14, 18. ARDEN, M.R. [369] OSBORNE v. THE DUKE OF LEEDS. (5 Vesey, 369–384.) A claim of double legacies by two instruments, a will and a codicil, repelled by the internal evidence and circumstances. The rule against double portions may supply a ground for excluding the presumption that such legacies are cumulative. THE late Duke of Leeds by his will, dated the 23rd of June, 1791, duly executed to pass real estate according to the Statute of Frauds,§ gave, devised, and bequeathed, his real and personal estate to his son and heir the Marquis of Carmarthen, his heirs, executors, and administrators, subject to the payment of his debts and funeral expenses, and to a provision for the Duchess, and also subject among other legacies charged thereon by his said will, to the payment of 10,000l. to his son Lord Sidney Godolphin Osborne, upon his attaining his age of twenty-one years, and 10,000l. each to all and every of his after-born child or children, on such of them, being a son or sons, attaining their respective ages of twenty-one years, and such of them, being a daughter or daughters, attaining that age or day or days of marriage, which should first happen; and he directed his executor, in case of the death of his wife during the minority of Lord Sidney Godolphin Osborne or during the minority or respective minorities of his after-born child or children or any of them to pay the annual sum of 100l., until their respective ages of seven years, the annual sum of 2001. from that period until seventeen, and the annual sum of 300l. from that period until their respective portions should become payable, for the + 3 R. R. at p. 74. at p. 76. maintenance and education of each of them during their re OSBORNE v. spective mincrities; and he appointed the Marquis of Car- THE DUKE marthen executor. By a codicil, dated the 18th of November, 1796, the testator gave and bequeathed to Lord Sidney Godolphin Osborne all the stocks, funds, and securities for money, he might have at the time of his death standing in his name in the books of the Bank of England or of the East India Company or other public company in England. By a second codicil he gave some trifling legacies; upon which nothing arose. He afterwards made another codicil, unattested, dated the 14th of April, 1798, as follows: "Whereas I have by my will given the sum of 10,000l. as a portion for Lord Sidney Godolphin Osborne; and having since otherwise provided for him I now revoke the said legacy; and do hereby give the sum of 10,000l. to my dear daughter Lady Catherine Ann Sarah Osborne; and I do hereby declare this to be a codicil to my last will and testament." The testator had by indentures of lease and release, dated the 2nd and 3rd of June, 1797, conveyed certain hereditaments upon trust, among other trusts, to raise the sum of 10,000l. as a portion for Lord Sidney Godolphin Osborne, to be paid to him, after the death of the testator, when he should attain the age of twenty-one; and, in case he should not have attained that age at the death of the testator, upon trust, that the trustees should pay, apply, and dispose of, the interest of his said portion, or so much thereof as the guardian or guardians of Lord Sidney Godolphin Osborne should think proper, in and towards the maintenance and education of Lord Sidney, until he should attain the age of twenty-one. The children of the testator at the date of the will were the Marquis of Carmarthen, now Duke of Leeds, and two daughters, amply provided for all by his first marriage; and one son, Lord Sidney Godolphin Osborne, by his second marriage, with the present duchess. Another daughter, Lady Catherine Ann Sarah Osborne, was born a few weeks before the date of the third codicil. OF LEEDS. [370] The testator died upon the 31st of January, 1799. The only stock standing in his name at his death was India Stock, of the value of about 3,000l. The bill was filed by the two younger children against the Duke of Leeds, the heir at law and executor, and against the trustees; the plaintiff Lord Sidney Godolphin Osborne praying only directions for the appointment of a guardian and maintenance but the question arose upon the claim of Lady Catherine Ann Sarah Osborne to two legacies of 10,000l. In opposition to that claim the Duke of Leeds offered evidence of conversations of the late duke with the duchess and with George Brooks, Esq., his grace's agent, upon the subject of the provisions for his younger children. The Duchess of Leeds by her depositions stated, that five weeks after the birth of Lady Catherine the testator informed her, he had made a provision of 10,000l. for her (Lady Catherine) by a codicil; and in frequent conversations he uniformly declared his intention to give his younger children 10,000l. each. Mr. Brooks stated, that soon after the birth of Lady Catherine the duke observed to him at various times, that, as she had not any provision, he would make a memorandum or codicil, by which he would give her 10,000l. About a month after her birth he told the deponent he had made a codicil: by which he had given her 10,000l.; repeating, that he had done so, because she had not any other provision; and it was his intention, that she should have as large a provision as Lord Sidney, except the stocks given to him in addition to the said 10,000l.; that upon creating the charge for his son in 1797 he declared, he would revoke the legacy to him of 10,000l.; and frequently before had declared, he had given him all his India Stock, and Government securities and expressly declared, that he gave such funds, that his son might have them over and above his 10,000l. The questions were, first, whether the plaintiff Lady Catherine was entitled to two legacies of 10,000l.; or to one such legacy only secondly, whether the evidence could be read in opposition to her claim of two legacies. [The Attorney-General, Solicitor-General, and Mr. Horne, for the plaintiff. |