be, make sale thereof for the best price or prices, that can reasonably be had for the same; and out of the moneys arising by such sale or sales pay all my just debts and funeral expenses; and then put and place out at interest all the residue of the said moneys, and pay the interest to grow due for the same, unto my brother George Simpkin for and during his natural life; and after his decease to pay the said principal money unto and among my nephews and nieces hereinafter named, and in such proportions as hereinafter mentioned: that is to say; to my nephews, Thomas Gray, Timothy Gray, and Thomas Donkin, and to my nieces, Anna Gray, Jane Gray, Catherine Gray, Sarah Donkin, and Anne, the wife of John Donkin my nephew, the sum of 50l. a-piece; and then pay all the residue of the said principal money, if any there be, unto my nephew John Gray.

This testator devised another real estate to his brother George Simpkin in tail, appointed him sole executor, and died on the 27th of March, 1768, the day after the date of his will. The executor proved the will: but as he was an ignorant man, the trustees of the real estate took possession of the personal property and acted for him in the execution of the will. They also sold the lands devised to them for 15921.; which they applied towards payment of the testator's debts amounting to 21531. 4s. 11d.; and the remaining debts were paid out of the personal estate. An account to that effect was delivered by Boyes, the surviving trustee, to the widow and executrix of George Simpkin in 1771. The bill was filed by the persons interested in the residue of the produce of the sale of the * trust estate under the will to have the sums given to them out of that fund paid and the accounts taken; and it prayed, that, if the said fund, or any part thereof, had been paid in discharge of the debts and funeral expenses in exoneration of the personal estate, what had been so paid should be made good out of the personal estate.

[* 104]

Attorney General [Sir John Scott] and Mr. Daniel, for the Plaintiffs. There is nothing to exempt the personal estate from being first applied. The mere constitution of an executor, together with a trust to sell for payment of debts, will not amount to an exemption of the personal estate, Walker v. Jackson, 2 Atk. 624. 1 Wils. 24; in which Lord Hardwicke puts his decree upon the express bequest of the personal estate, and says, Adams v. Meyrick, 1 Eq. Ab. 271, was a weak decision; and it met with farther disapprobation in Stephenson v. Heathcote before Lord Keeper Henley (1), and in The Duke of Ancaster v. Mayer, 1 Bro. C. C. 454, in both of which the personal estate was not exempted. Mead v. Hide, 2 Vern. 120, Samwell v. Wake, 1 Bro. C. C. 144, Lord Inchiquin v. O'Brien, Amb. 33. 1 Wils. 82.

Solicitor General [Sir John Mitford] and Mr. Wetherell, for the widow and executrix of George Simpkin. The legacies being

(1) Stated in The Duke of Ancaster v. Mayer, 1 Eden, 38.

expressly given only out of the real estate, the personal estate cannot be applied to them: Hone v. Medcraft, 1 Bro. C. C. 261. The intention is, that the executor shall take the personal estate beneficially and as an entire fund, subject only to the expense of probate. Webb v. Jones, 2 Bro. C. C. 60. Lord Kenyon there says, there is no magic in words; but if the intention is evident to exonerate the personalty, it must be exonerated. Where the direction has been to sell the estate out and out, and to convert it into personal estate, and give it in that character, the reasoning, that the personal must be applied first as the proper fund, does not hold, but much slighter words will in that case be sufficient to show the intention to exempt it. In Stapleton v. Colville, For. 202, Lord Talbot argues upon the supposition of a distinction between a mere charge or trust for payment of debts and an express desire to sell and convert the property out and out; and he refers to Bamfield v. Wyndham, and Wainwright v. Bendloes, Pre.

Ch. 101, 451; 2 Vern. 718. In Feltham's Case, 1 Eq. [* 105] Ab. 271. 1 Lev. 203, *it was asserted at the bar, and admitted by the Master of the Rolls, that where another fund is provided, an executor shall be exonerated, but not an administrator; and that case has been often cited without disapprobation. In Mead v. Hide one question was, whether the executor having a legacy could as such take the personal estate; for it really was personal estate to be distributed among the next of kin; and there was no doubt, that if there was no executor, it must in the hands of the administrator be applied to debts notwithstanding a particular charge. In this case the particular disposition of the residue of the produce of the sale shows the intention to convert it into personal estate. Nothing being given to the executor out of the personal estate, his title against the next of kin is clear. The trustees being directed to pay all the debts and funeral expenses are put in the place of executors. This has been for near thirty years treated as the property of George Simpkin, who is heir at law disinherited to the extent of the sale. In Stephenson v. Heathcote there were particular circumstances. It was not a devise to sell out and out; but a charge upon an intailed estate in the form of a power to sell given to the wife, who was also the executrix; and the circumstance, that the executor is the person to dispose of the real estate, has been often relied on to show, he was intended to take beneficially only the residue after debts paid. The trust being to raise so much as should be fully sufficient to satisfy all his just debts and funeral expenses, according to the note I have, the word "fully" was of great force; showing, it is only intended in aid; and the word "residue" was considered to mean subject to debts, nothing but a tobacco-box having been given out of the personal estate. Lord Inchiquin v. O'Brien falls within those cases, where the personal estate and the residue of the produce of the real are given to the same person; and so much as should not be sold was given in strict settlement. Dolman v. Smith, 2 Vern. 740. Pre. Ch. 456, went upon the circumstance, that the

person to have the real and personal estate was the same, and the age of that person. The words disposing of this real estate are very strong. As to the necessity of an irresistible inference, in Brummel v. Prothero (1) the Master of the Rolls did not like that expression. Lord CHANCELLOR [LOUGHBOROUGH]. This Court is bound to give effect to all the will. It is very clear, the testator meant by the sale of the *real estate to provide a fund for his [*106] debts. It is equally clear, he supposed there might be a residue; of which he disposes; and then after answering all these payments he supposes there will be still a residue, and gives that to another person. Then as to the personal estate, there is no mention of it in the will, except the mere nomination of an executor. No case comes up to that, that the mere nomination of an executor, though under circumstances, that would give to him beneficially the personal estate, and not make it distributable to the next of kin, shall have the same effect as a distinct specific gift of it to an individual; as there was in Bamfield v. Wyndham, and Wainwright v. Bendloes; and it would be a strong conclusion, when the effect would be to defeat those gifts, the testator has clearly intended to make, if there should be a fund out of the produce of the sale of his real estate. They are not strictly legacies; but they are certainly in the nature of legacies; and the Defendant's construction would in effect give to a person only nominated executor a right to all the personal estate in opposition to those persons, who are entitled to those sums by the will. Therefore I have no difficulty in holding, that the personal estate, not particularly given to any one, but merely attached to the person of the executor, shall be liable in the first place. Upon that ground I shall direct an account: but there is no possibility of unravelling the account, that has been settled. Whatever has been taken as an account ought to stand. What I mean is, I shall not give directions, that shall oblige them to take the account, as if it was a recent transaction. If they can show any part of the personal estate and trace it, well and good. The costs must come out of the fund; and the residue, after paying the costs, and the several sums of 501. must be paid over to the nephew John Gray.

In Stephenson v. Heathcote, in the trust to sell so much of the real estate, as should be fully sufficient to satisfy the debts, &c., the word "fully" might have helped those, who contended for the exemption of the personal estate. It might be supposed to signify not partially (1).

1. THAT effect ought to be given to every word of a will, provided an effect can be given to every word consistently with the general intent of the whole, taken together; see, ante, note 4 to Blake v. Bunbury, 1 V. 194.

2. As to the circumstances which may defeat an executor's ordinary claim to

(1) Post, 111.

(2) See the three following cases; Dolman v. Weston, 1 Dick. 26; Mr. Cox's notes, 2 P. Will. 294, and 3 P. Will. 325, to Howell v. Price, and Haslewood v. Pope; post, Burnaby v. Griffin, 266; Holford v. Wood, Tait v. Lord Northwick, vol. iv. 76, 816; Hartley v. Hurle, v. 540; Brydges v. Phillips, vi. 567; Watson v.

any residue of his testator's personal property not actually disposed of; see note 1 to Bennet v. Bachelor, 1 V. 63; and the notes to Nourse v. Finch, 1 V. 344.

3. As a general principle, the personal estate of a testator is the primary fund for payment of debts and legacies; to exclude the operation of this rule, a special intent to the contrary must appear to the satisfaction of the Court. See notes 2 and 4 to Hamilton v. Worley, 2 V. 62, and to the references there given, add the case of Stapleton v. Stapleton, 2 Ball & Bea. 527, where the present decision was particularly adverted to and followed.

4. That a Court cannot, several years after an account has been settled, consider the matter as open as before; see Lord Courtney v. Godschall, 9 Ves. 477. See, also, note 1 to Matthews v. Wallwyn, 4 V. 118.

[* 107]

BURTON . KNOWLTON.

[ROLLS.-1796, JULY 27.]

UNDER a devise to sell and pay debts and funeral expenses the personal estate was exempted without express words upon the evident intention. (a) Codicil is to be taken as part of the will, (b) [p. 110.]

Where there is an express direction in a will, that the debts, &c. shall be paid out of the real estate, the person, to whom the personal is bequeathed, takes it exempt, [p. 110.]

MARY COCKELL devised all her freehold, copyhold and leasehold, messuages, lands, tenements and hereditaments, parts and shares of messuages, lands, tenements and hereditaments, and all her real estate, to two trustees, upon trust after her death with all convenient speed to sell, dispose of, and convey, either together or in parcels for the best price, that could be procured, all or any part of her said real estate, and with the money arising from the sale, to pay off and

Brickwood, ix. 447; Hancox v. Abbey, xi. 179; Tower v. Lord Rous, xviii. 132; Bootle v. Blundell, xix. 494, 1 Mer. 193; where this subject is fully discussed, and all the authorities minutely examined by Lord Eldon. M'Cleland v. Shaw, 2 Sch. & Lef. 538; Maugham v. Mason, 1 Ves. & Bea. 410; Aldridge v. Lord Wallscourt, 1 Ball & Beat. 312; Stapleton v. Stapleton, 2 Ball & Beat. 523; Gittins v. Steele, 1 Swanst. 24; Barnewell v. Lord Cawdor, 3 Madd. 453; Greene v. Greene, Browne v. Groombridge, 4 Madd. 148, 495; Michell v. Michell, 5 Madd. 69; Noel v. Lord Henley, 7 Pri. 241.

(a) As to the exoneration of the real estate by the personal, see 2 Williams, Exec. 1201-1219; 1 Story, Eq. Jur. 571, 572, and cases cited. It is not enough for the testator to have charged his real estate with, or in any manner devoted it to, the payment of his debts and legacies. The rule of construction is such as aims at finding, not that the real estate is charged, but that the personal estate is discharged. In other words, it is not by an intention to charge the real, but by a plain intention to discharge the personal estate, that the question is to be decided. See also note (a) to Kidney v. Coussmaker, 1 V. 436.

(b) See Monypenny v. Bristow, 2 Russ. & M. 117; Yarnold v. Wallis, 4 Y. & C. 160; 1 Williams, Exec. 8. A will and codicil are to be read as being made at the same time, and incorporated together. It is an addition to, or explanation of, a will a part of it, and may be made before or after the will; and there may be more than one to the same will. It no farther revokes a will, than as it is in opposition to some particular dispositions of it; but a second will revokes the first. A codicil republishes a will and makes it of the same date with the codicil. 4 Dane, Abr. 550, ch. 127, a 1, § 11, and the authorities cited.

discharge all the mortgages and incumbrances in any wise affecting the real estate and also all other her just debts and funeral expenses; and to lay out the surplus in stock; and to pay and apply the clear rents and profits of her real estate, or so much as should not be sold, and the clear annual income and produce of the money arising from the sale after payment of the debts, for the benefit of her friend Joseph Welch for life; and after his decease to convey, apply and dispose of, all such parts of her real estate and the produce thereof, not sold or applied, to the heirs or heir at law of her cousin William Cockell. The testatrix then gave her family pictures, a worked bed quilt, a pair of sheets and some other articles of personal property, to her heir at law. She gave several legacies to several persons, and 50l. to each of her two trustees over and above a reasonable recompense for their trouble, which she directed them to retain out of the trust premises. Then after giving several other legacies she gave 2007. to be paid by the said trustees after the decease of Joseph Welch to such person and persons and in such manner and form, as he should by any deed or writing under his hand appoint. All the rest and residue of her personal estate and effects whatsoever not before specifically disposed of she gave and bequeathed to the said Joseph Welch, his executors and administrators, upon trust to pay, apply and dispose of, the same to such person and persons and in such shares, as she should by any writing to be executed by her appoint; and for default of appointment she gave the said residue to the said Joseph Welch for his own use and benefit; and she then appointed him executor.

The testatrix died without having made any appointment. The only question was, whether the personal estate not specifi

*

cally disposed of or the real estate should be first applied [*108] in discharging the debts.

MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. This is one of those cases, that come so often before the Court, and which have given rise to such difference of opinion upon the Bench, that it cannot be wondered, that I have taken so much time both in this and in Brummel v. Prothero, the next cause that stands for judgment, and upon which I confess, if the consideration of the one did not involve that of the other, I should not have taken so much time but this cause has given me more pain than any other, that ever came before me; however upon full consideration of the will, and fully subscribing to the principles, that swayed the Court in The Duke of Ancaster v. Mayer, 1 Bro. C. C. 454, I am perfectly satisfied, this testatrix did intend to give her personal estate to Joseph Welch exempted from the payment of debts. The cases are very numerous; and great Judges have differed upon them. Some have thought the words sufficient to exempt the personal estate: others have thought, they did not afford that demonstration. The cases are all subjoined by Mr. Cox in a note to the case of Haslewood v. Pope, 3. P. Will. 325. I shall not go into the circumstances of these cases. There are certainly many ingredients in this, that seem to have been relied