such a case the Courts would marshal the assets in favor of the legatees; descended assets being, according to the order before stated, applicable before specific or pecuniary legacies to the payment of all charges affecting them both. And this view of the case seems to agree with Lord Eldon's observations in Austen v. Hasley, (a) where, however, the land was devised, and his Lordship's opinion upon another question rendered it unnecessary to decide the point. A contrary determination, indeed, was made in the case of Coppin v. Coppin, (b) where a person, who was both heir and executor of the vendee, was held to be entitled to retain out of the personal assets the purchase-money of an estate which his ancestors had purchased, against the legatees of the vendee. This [604] case has been questioned by Lord Eldon, (c) and seems to have been overturned by the case of Trimmer v. Bayne, (d) where Sir Wm. Grant, M. R., decided that the heir who had paid the purchase-money for an estate contracted for by his ancestor, was not entitled, as against the legatees of such ancestor, to be reimbursed out of his personal estate. It is not distinctly stated, however, whether the legatees, out of whose bequests the heir unsuccessfully claimed to be reimbursed, were specific or pecuniary legatees. The right of a pecuniary legatee to have the assets marshalled, as against the heir of a testator who purchased, but died without having paid for, an estate, is placed beyond all doubt by the recent case of Sproule v. Prior. (e) Where the purchased estate is devised, the question is somewhat different; but as the established rule is, we have seen, that the devisee of a mortgaged estate is not entitled to exoneration out of personal estate specifically bequeathed, and not expressly made subject to debts, there seemed ground to contend that in the present case the estate must, by parity of reasoning, also bear its own burden against such legatees, and accordingly, that if their funds have been taken by the vendor, they are entitled to have the assets marshalled against the devisee. And the case of Pollexfen v. Moore, (f) was considered to lend some countenance to this doctrine; but it appears to have been decided upon different, though it should seem untena ble, grounds. Sir Wm. Grant in Trimmer v. Bayne, (g) [605] intimated that the case had greatly perplexed him, and the eminent author of the Treatise of Vendors and Purchasers (a) 6 Ves. 484 [Sumner's ed. note (a)]. (b) Selw. Ch. Cas. 78; S. C. 2 P. W. 291. (c) See his Lordship's judgment in Mackreth v. Symmons, 15 Ves. 339. (d) 9 Ves. 209. (e) 8 Sim. 189. (ƒ) 3 Atk. 272; S. C. stated from the Registrar's book, Sugd. Vend. & Purch. 449. Some of the doctrine advanced in this case is at variance with the decision. See 9 Ves. 211; 15 Ves. 339. (g) 9 Ves. 211. has taken some pains to show the inapplicability of the decision to the doctrine which it has been advanced to support, and the unsoundness of that doctrine; and his high authority may have had some weight in procuring its overthrow in the recent case of Wythe v. Henniker, (a) where Sir J. Leach, M. R., held that a person having devised an estate which he had purchased, and the vendor having after his decease been paid a part of the purchase money, which remained unpaid at the testator's death, out of the deceased's personal estate, the pecuniary legatees had no right to stand in the place of the vendor in respect of his lien upon the purchased estate, to the extent of the sum so received. His Honor, however, appears to have contented himself with showing that the case of Pollexfen v. Moore (which had been cited on behalf of the legatees) was not applicable to the point, and we look in vain throughout his judgment for an explanation of the principle of his decision, or an answer to the plausible, if not convincing, arguments founded upon analogical reasoning from the cases by which the claim of the legatees was attempted to be sustained. Sir W. Grant decided that, even where the testator expressly directed his executors to pay the purchase-money of the devised estate, and the personal estate was inadequate to pay both the purchase-money and the pecuniary legacies, the devisee was liable to contribute ratably with the legatees. (b) [606] It may be observed that Lord Eldon, in Austen v. Hasley, (c) thought that a clause * giving the executors "power" to pay the purchase-money out of the personal estate, was not necessarily to be construed as an absolute direction. The preceding cases, however, in which equity interferes to prevent an eventual derangement, by the act of third persons, of the order of applying the assets, do not completely exemplify an important principle by which the Courts, in marshalling assets, are governed, and which forms the peculiar feature of the doctrine; it is this-that wherever a party has a claim upon one fund only, and another upon more than one, the party having several funds must resort, in the first instance, to that on which the other has no claim, or, in other words, the Court will so arrange the funds as to let in as large a number of claims as possible, and if the person having the several funds should, in violation of this rule, have resorted to the fund common to himself and the person having no other fund, the Court will place that person in his room, to the extent to which the common fund has been so applied. (d) (a) 2 Myl. & K. 635. (b) Headley v. Redhead, Geo. Coop. 50, noticed ante, p. 547, n. (c) 6 Ves. 478. (d) See this doctrine referred to, in regard to charities, ante, vol. 1, p. 207. This principle is applied in favor of both creditors and lega tees. In regard to the former, however, it is to be remembered, that the statute of 3 & 4 Will. IV. c. 104, (a) renders all real estate, including copyholds, liable to the claims of creditors of every class. But the doctrine may still be called into operation in reference even to creditors, as specialty creditors retain their priority under the new law to those by simple contract; and it is also observable, that the recent statute, by widening the range of the claims of creditors, has given greater scope to the application of the doctrine among legatees. Thus, as [ 607 ] it was formerly the rule that where a specialty creditor resorted to the personal estate, and thereby rendered it inadequate to the payment of pecuniary legacies, the legatees might claim to stand in his place in respect of his demand upon the realty, which had descended, or was charged with legacies; so it is equally clear that, under the existing law, the same consequence would follow in the case of a simple contract creditor taking such a course. Upon the same principle, it is settled that, where there are two classes of legatees, the one having a charge upon real estate, the other having no such charge, and the personalty is not sufficient to satisfy both, the legatees whose legacies are so charged shall be paid out of the land, in order to leave the personal estate for those who have no other fund. Thus in Hanby v. Roberts, (b) where the testator, by his will, gave several legacies, (not charging them upon the real estate,) and by codicil bequeathed a legacy of £3000, with the payment of which he charged the real estate; the personal estate having been exhausted in the payment of the £3000 legacy, Lord Hardwicke held that the other pecuniary legatees should stand in the place of the satisfied legatee to this extent. But in Prowse v. Abingdon, (c) Lord Hardwicke refused to marshal assets in favor of a legatee whose legacy had been originally charged upon the land, but had failed in respect of the real estate, by his death before the time of payment; (d) his Lordship observing, that the rule as to marshalling ⚫ would hold only where it was proper to be done at the (a) Ante, p. 510. [608] (b) Amb. 127. See also Masters v. Masters, 1 P. W. 421; Bligh v. Earl of Darnley, 2 P. W. 620; Hamley v. Fisher, Dick. 104; Norman v. Morrell, 4 Ves. 769; Bonner v. Bonner, 13 Ves. 383. (c) 1 Atk. 482. (d) As to this doctrine, see ante, vol. 1, p. 756; but see also Pearce v. Loman, 3 Ves. 135, where Lord Loughborough doubted whether, in such a case, the legacy was payable even out of the personal estate. It is not easy, however, to perceive upon what sound principle the circumstance of its having been charged upon the real estate as the auxilliary fund, and having failed as to that, should vary the construction of it as a personal legacy. time the legacy first took place, and not where it was owing to a fact which happened subsequently to the death of the testator; (a) and this has since been followed in the case of Pearce v. Loman. (b) (a) But is it not always the fact of some legatee or creditor resorting to a partienlar fund after the death of the testator that occasions the requisition to marshal? (b) 3 Ves. 135. 435 CHAPTER XLVIII. LIMITATIONS TO SURVIVORS. I. On construing Survivor as synonymous with other. III. Words of Survivorship, to what Period referable. SURVIVOR," when construed other. Word "survivors" construed strictly, not as synonymous with other, [p. 610.] Effect of "other" being elsewhere associated with "survivor," [p. 613.] Remarks upon Winterton v. Crawfurd, [p. 615.] Effect where gift over is combined with a collateral event, [p. 616.] Remark on doctrine advanced in Aiton v. Brooks, [p. 617.] Word "survivors" construed strictly, [p. 618.] Sir J. Wigram's judgment in Leeming v. Sherratt, [p. 618.] General conclusion from the cases, and practical suggestion, [p. 619.] Whether clauses of accruer extend to accruing shares, [p. 620.] Word "share" does not carry accruing share, [p. 621.] Word portion similarly construed, [p. 621.] Word "portion" does not carry accruing share, unless aided by the context, [p. 622.] Accrued shares held to pass under the denomination of "share" by force of context, [p. 623.] Word "share" held to comprise accrued as well as original share, [p. 624.] Accrued shares held to pass under gift of "the whole," [p. 625.] Accruing shares not necessarily subject as the original, [p. 626.] Express provision in one limitation to survivors not extended by implication to an ulterior similar limitation of the same subject to part of the former objects, [p. 627.] Qualifications expressly applied to original shares not extended by implication to accruing shares, [p. 628.] Effect where qualification is necessary to validity of gift of accruing shares, [p. 629.] Gift of accrued shares supported by engrafting thereon a qualification expressly applied to original shares, [p. 630.] To what what period survivorship referable, [p. 631.] Where the gift is immediate, [p. 632.] Survivorship referred to death of testator, [p. 632.] Where gift not immediate, [p. 633.] Survivorship referred to the death of the testator, [p. 633.] Survivorship, to what period referable; to the death of the testator, [p. 634.] Survivorship, to what period referable; to the death of the testatrix; to the death of the testator, [p. 635.] Circumstance of there being an express bequest to survivors at the division, [p. 636.] "With benefit of survivorship," referred to death of testator, [p. 636.] Survivorship referred to death of testator, [p. 637.] |