faction of debts due by bond, or other specialty, and shall be subject to the like remedies, proceedings, and process in any court of law or equity in any of such plantations respectively, for seizing, extending, selling, or disposing of any such houses, lands, negroes, and other hereditaments and real estates, towards the satisfaction of any such debts, duties, and demands, and in like manner as personal estates in any of the said plantations respectively are seised, extended, sold, or disposed of for the satisfaction of debts.

The marshalling of assets remains now to be considered. The personal assets of the testator shall in all cases be primarily applied in discharge of his personal debts or general legacies, unless he exempt them by express words or manifest intention: (i) a declaration plain, or necessary inference, tantamount to express words. (k)

[418] A devise of all the real estate, subject to the payment of debts, will not alone exonerate the personal estate; and even if the testator direct the real estate to be sold for the payment of debts, the personal estate shall be applied in exoneration of the real; (7) and it shall be thus applied, although the personal debt be secured by mortgage, and whether there be or be not a bond or covenant for payment. (m) So lands subject

(i) 1 P. Wms. 294, note 1. Heath v. Heath, 2 P. Wms. 366. Walker v. Jackson, 1 Wils. 24. S. C. 2 Atk. 624. Bridgman v. Dove, 3 Atk. 202. Haslewood v. Pope, 3 P. Wms. 324. 1 Bro. P. C. 192. Bunb. 302. Lord Inchiquin v.French, Amb. 33. S. C. 1 Wils. 82. Samwell v. Wake, 1 Bro. Ch. Rep. 144. Duke of Ancaster v. Mayer, ib. 454. Bamfield v. Wyndham, Prec. in Ch. 101. Wainwright v. Bendlowes, 2 Vern. 718. S. C. Amb. 581. Webb v. Jones, 2 Bro. Ch. Rep. 60. Vide also 3 Bac. Abr. 85. 2 Fonbl. 290, note (a). Reade v. Litchfield, 3 Ves. jun. 475.

(k) Bootle v. Blundell, 1 Meriv. Rep. 193, and 19 Ves. 494. S. C. Greene v. Greene,4 Madd. Rep. 148. Gittins v. Steele, 1 Swans. 24. Tower

BB

v. Lord Rous, 18 Ves. 132. Driver v. Ferrand, 1 Russ. & Myl. 681. Clutterbuck v. Clutterbuck, 1 Myl. & Keen, 15. Walker v. Hardwick, ib. 396. Douce v. Lady Torrington, 2 Myl. & Keen, 600. Withers v. Kennedy, ib. 607. Dawes v. Scott, 5 Russ. 32.

(1) Fereyes v. Robertson, Bunb. 301. Bond v. Simmons, 3 Atk. 20. Haslewood v. Pope, 3 P. Wms. 322. 2 Eq. Ca. Abr. 493.

(m) Cope v. Cope, 2 Salk. 449. Howel v. Price, i P. Wms. 291. Pockley v. Pockley, 1 Vern. 36, 436. King v. King, 3 P. Wms. 360. Galton v. Hancock, 2 Atk. 436. Robinson v. Gee, 1 Vez. 251. 6 Bro. P. C. 520. Philips v. Philips, 2 Bro. Ch. Rep. 273.

to or devised for payment of debts shall be liable to discharge such mortgaged lands either descended or devised, (n) and although the mortgaged lands be devised expressly subject to the encumbrance. (o) So lands descended shall exonerate mortgaged lands devised. (p) So unencumbered lands and mortgaged lands, both being specifically devised, but expressly after payment of all debts, shall contribute to the discharge of the mortgage: (q) In all these cases the debt is considered as the personal debt of the testator himself, and therefore a charge on the real estate merely collateral.

But a different rule prevails where the charge is on the real estate principally, and the personal security is only collate[419] ral: () As where a husband on his marriage covenants to settle lands and to raise a term of years out of them for securing portions, and also gives a bond for the performance of the covenant; for, in such case the landholder enters into such covenant relying on the land to enable him to discharge it; nor does the money raised increase the personal estate, but it is to exonerate the rest of his real. (s) So where the debt, although personal in its creation, was contracted originally by another: (t) As where an estate is bought subject to a mortgage, the personal estate of the purchaser shall not be applied in exoneration of the real estate, unless he appeared to have intended to make the debt his own; (u)

(n) Bartholomew v. May, 1 Atk. 487. March. of Tweedale v.Coverley, 1 Bro. Ch. Rep. 240.

(0) Serle v. St. Eloy, 2 P. Wms. 386.

(p) Galton v. Hancock, 2 Atk.

424.

(9) Carter v. Barnardiston, 1 P. Wms. 505. 2 Bro. P. C. 1.

(r) Edwards v. Freeman, 2 P. Wms. 437, 664, in note. Ward v. Lord Dudley and Ward, 2 Bro. Ch. Rep. 316. Leman v. Newnham, 1 Ves. 51. Lewis v. Mangle, Ambl.

150.

(s) 2 Fonbl. 292, note b. Edwards

v. Freeman, 2 P. Wms. 435.

(t) Cope v. Cope, 2 Salk. 449. Bagot v. Oughton, 1 P. Wms. 347. Leman v. Newnham, 1 Vez. 51. Robinson v. Gee, ib. 251. Lacam v. Mertins, ib. 312. Parsons v. Freeman, Ambl. 115. 2 P. Wms. 664, in note. Lawson v. Hudson, 1 Bro. Ch. Rep. 58. Earl of Tankerville v. Fawcet, 2 Bro. Ch. Rep. 57. Tweddel v. Tweddel, ib. 101, 152. Billinghurst v. Walker, ib. 604.

(u) 2 Fonbl. 202, note b. Pockley v. Pockley, 1 Vern. 36. 6 Bro. P. C. 520. Billinghurst v. Walker, 2 Bro. Ch. Rep. 608.

but a mere covenant for securing the debt will not be sufficient for that purpose. (v)

With respect to the priority of the application of real assets, when the personal estate is either exempt or exhausted, it seems, that first the real estate expressly devised for the purpose shall be applied; secondly, to the extent of the specialty debts, the real estate descended; thirdly, the real estate [420] specifically devised subject to a general charge of debts. (w)

As it is the object of a court of equity, that every claimant on the assets of the deceased shall be satisfied, so far as that purpose can be effected by any arrangement consistent with the nature of the respective claims of creditors, it has been long settled, that where A. a creditor has more than one fund to resort to, and B. another creditor, only one, A. shall resort to that fund on which B. has no lien. (a) If therefore a specialty creditor whose debt is a lien on the real assets, receive satisfaction out of the personal assets, a simple contract creditor shall stand in the place of such specialty creditor against the real assets, so far as the latter shall have exhausted the personal assets in payment of his debt. (y)

The same marshalling of assets may also take place in favour of legatees. As against assets descended, they shall have the same equity: Thus where lands are subjected to the payment of all debts, a legatee shall stand in the place of a simple contract creditor, who has been satisfied out of the personal [421] assets. (~) So, where legacies by the will are charged

(v) Bagot v. Oughton, 1 P. Wms. 347. Evelyn v. Evelyn, 2 P. Wms. 664. Forrester v. Lord Leigh, Ambl. 171. Earl of Tankerville v. Fawcett, 2 Bro. Ch. Rep. 58. Tweddel v. Tweddel, ib. 152. Billinghurst v. Walker, ib. 604.

(w) 1 P. Wms. 294, note 1. Galton v. Hancock, 2 Atk. 424. Doune v. Lewis, 2 Bro. Ch. Rep. 257, 261, in note, 259, in note. Manning v. Spooner, 3 Ves. jun. 117.

(x) 1 P. Wms. 679, note 1. Lanoy v. Duke of Athol, 2 Atk. 446. Lacam v. Mertins, 1 Vez. 312. Mogg v. Hodges, 2 Vez. 53.

(y) 2 Ch. Ca.4. Sagittary v. Hyde, 1 Vern. 455. 1 Eq. Ca. Abr. 144. Wilson v. Fielding, 2 Vern. 763. Galton v. Hancock, 2 Atk. 436. 3 Wooddes. 489.

(z) Haslewood v. Pope, 3 P. Wms.

323.

on the real estate, but not the legacies by the codicil; the former shall resort to the real assets on a deficiency of such as are personal to pay the whole. (a) So, although a specialty creditor may elect to have his debt out of the assets in the hands of the heir or of the devisee, yet, as we have seen, the heir or devisee shall in such case stand in the place of such creditor, and reimburse himself out of the personal estate. (b)

But the principles of these rules will not admit of their being applied in aid of one claimant, so as to defeat another. And, therefore, a pecuniary legatee shall not stand in the place of a specialty creditor, as against lands devised, though he shall as against lands descended. (c) Yet such legatee shall stand in the place of a mortgagee, who has exhausted the personal assets, to be satisfied out of the mortgaged premises, though specifically devised; (d) for the application of the personal assets in case of the real estate mortgaged, (e) does not take place to the defeating of any legacy, either specific or pecuniary. (ƒ) A legatee shall also stand in the place of a specialty creditor, who has exhausted the personalty, as against a residuary devisee of the real and personal estate, because he has only the rest and residue. (g) But where a testator gave to three different persons, three leasehold estates, one of which was mortgaged, and directed that the mortgage should be paid out of his residuary personal estate, which proved insufficient for that purpose, the legatee of the mortgaged leasehold was held to take it cum onere, and that the legatees of the two other leaseholds should not contribute towards the payment of the mortgage debt, the direction for

(a) 3 Ch. Rep. 83. Masters v. Masters, 1 P. Wms. 422. Bligh v. Earl of Darnley, 2 P. Wms. 620.

(b) Clifton v. Burt, 1 P. Wms.

680.

(c) Herne v. Meyrick, 1 P. Wms. 201. Clifton v. Burt, 678. Haslewood v. Pope, 3 P. Wms. 324.

(d) Lutkins v. Leigh, Ca. temp. Talb. 53. Forrester v. Lord Leigh,

Ambl. 171.

(e) Vide Howel v. Price, 1 P. Wms. 294.

(f) Oneal v. Mead, 1 P. Wms. 693. Tipping v. Tipping, ib. 730. Davis v. Gardiner, 2 P. Wms. 190. Rider v. Wager, ib. 335.

(g) Handby v. Roberts, Ambl. 129.

payment of the debt out of the residuary personal estate merely following the general rule of law. (g)

Nor do any of the rules above-mentioned subject any fund to a claim to which it was not before liable, but only provide that the election of one claimant shall not prejudice the claims [422] of the others. (h) Thus, where A., seised of freehold and copyhold lands, mortgaged them in his lifetime, and died indebted by mortgage, and on several bonds, the specialty creditors urged the court, in marshalling the assets to cast the whole mortgage upon the copyhold estate, in order that the specialty creditors might have the benefit of the whole freehold estate: yet the court held, that as copyhold estates were not liable, either at law or in equity, to the testator's debts, farther than he subjected them to the same, the copyhold estate should bear its proportion with the freehold estate for payment of the mortgage, but should not be liable to make satisfaction for the specialty debts. (i) But this case, as being quite anomalous and irreconcileable with all principle, has been lately overruled. (k) And now by 3 & 4 Wm. 4, c. 104, copyhold estates are made assets with freehold estates for payment of specialty and simple contract debts, ante 416.

Where a testator, having both freehold and copyhold estates, charges all his real estate with payment of his debts, if he has surrendered the copyhold to the use of his will, the freehold and copyhold shall be applied rateably; but if he has not surrendered the copyhold, it shall not be applied until the freehold is exhausted. (1)

If a legacy be given out of a mixed fund of real and personal estate, payable at a future day, and the legatee die be

(g) Halliwell v. Tanner, 1 Russ. & Myl. 633.

(h) Galton v. Hancock, 2 Atk. 438. Lacam v. Mertins. 1 Vez. 312.

(i) Robinson v. Tonge, cited 1 P. Wms. 679, note 1, and vide supra, 411, and 2 Vez. 271.

(k) Aldrich v. Cooper, 8 Ves. jun. 382. See also Trimmer v. Bayne,

9 Ves. jun. 209. And in Tomlinson v. Ladbroke, at the Roll's sittings after Hil. T. 1809, Sir Wm. Grant, M. R., held clearly that the assets, should be marshalled as against a copyhold estate.

(1) Growcock v. Smith, 2 Cox's Rep. 397.