personal representatives, and was a charge upon the houses devised to Tichener. These cases were followed by Lord Bathurst in Clarke v. Ross,(d) in which Mr. Mason devised his real estates to Joseph Mason for life, remainder to his first and other sons in tail, &c. with remainder in fee to Alexander Wilson; declaring that if Alexander or his heirs. should actually come into possession of the estates, under the limitations in the will, he or they should pay to his daughter Catherine Wilson, 2000l. (with which sum the testator charged the estates,) to be paid at the expiration of two years, next after Alexander or his heirs should come into possession. Catherine married, but died several years before the remainder to Alexander came into possession; and the question was, whether she took such a vested interest in the 2000l. although she died before the money was payable, as to entitle the person claiming under her personal representative? And Lord Bathurst was of opinion, that the interest, did vest in Catherine, and he ordered the legacy to be raised, with interest, from the end of two years after the remainder in Alexander vested in possession. So in Kemp v. Davy, (e) Mr. Kemp charged his real estates with debts, legacies, and annuities, and devised his real and personal property to trustees to discharge them. After giving several legacies and annuities, among which were legacies to his wife and to his sisters Jane Blois and Elizabeth Kemp, he ordered his trustees, if his nephew John Kemp attained twenty-one, to convey the trust funds to him in fee, subject to the subsisting debts, legacies and annuities; but if his nephew died under that age, he (the testator) gave additional legacies to his wife, to Jane Blois and to Elizabeth Kemp, directing them to be paid within six months after his nephew's death under twenty-one; and he devised his real and personal estates to Mary Kemp, &c. John Kemp, the divisee, died under age, but survived the widow, and Jane Blois and Elizabeth Kemp. The question was, whether, as the last three persons died before John, their personal representatives were entitled to the additional legacies? And the Court declared that the three legatees took vested interests, which were transmitted to their personal representatives. We perceive that all the authorities which have been stated are uniform in establishing the proposition, that where a legacy is given out of a particular fund, with reference to the period when the fund shall vest in possession, as for instance, when an estate is devised in remainder to B. with a charge to C.; the gift amounts to a distribution of the estate between B. and C. Since therefore the remainder to B. vests immediately, so does the charge for C. The cases also next referred to, were all decided upon this principle, and in exception to the rule mentioned in the beginning of the chapter; a rule which, though at first universally adopted,(f) was afterwards considered to be very objectionable; and in consequence was devised (d) 2 Dick. 529. 1 Bro. C. C. 120. in notis. (e) 1 Bro. C. C. 120. in notis. (ƒ) Among the cases determined according to the general rule, and which seem to be inconsistent with later authorities, are Tournay v. Tournay, Pre. Ch. 290. Carter v. Bletsoe, 2 Vern, 617. Gordon v. Raynes, 3 P. Will. 134. Bradley v. Powell, Forrest. 193. Boycot v. Cotton, 1 Atk. 552. Hall v. Terry, ibid. 502. and Att. Gen. v. Milner, 3 Atk. 112. the exception we have been discussing, where the time of payment referred, not to the person of the legatee, but to the circumstances of the estate.(g) In Pawsey v. Edgar, (h) the testator devised his real estate to his wife for life, remainder to his son Robert in tail male, with remainder to his own right heirs; upon condition that Robert, or the persons then in possession of the estate, should within six months after the death of the wife, pay to his two daughters, Mary and Temperance, 600l. a piece, and interest from the wife's decease, with a right of entry in default of payment. And although the daughters died before the wife, after surviving the testator, Lord Bathurst determined that they took vested interests, which entitled their personal representatives to the legacies. Lord Northington pronounced a similar degree in Thompson v. Dow, (i) where the testator, being seised of a reversion in an estate expectant upon the death of his aunt, devised the lands to his wife for life, remainder to Dow in fee; subject to the payment of 2001. to his daughter Elizabeth six months after his wife's death, with a right of entry in default of payment. Notwithstanding Elizabeth died before the wife and aunt, his Lordship held that she took a vested interest transmissible to her personal representative. These cases were followed by the Court of Exchequer in Morgan v. Gardiner, (k) in which Mr. Price devised his real estate to his wife for life, remainder to his daughter Mary in fee, charged with 400l. to his four younger daughters, within one year after the death of his wife, with interest from her decease. Two of the younger daughters died before the wife, unmarried. Mary too, the devisee of the estate, died during the life of the wife; and it was determined, that the legacies vested in the younger daughters, which entitled the personal representatives of those who were dead, to their proportions of the fund. It is observable, that the last case differs from the preceding authorities, in the circumstance of the devisee in remainder having died before the determination of the particular estate. This event, however, was immaterial, for Mary, the devisee took a vested interest in the lands liable to the legacies, and which she must have paid had she survived the tenant for life. The person therefore claiming under her, who in this instance was her heir, necessarily succeeded to the estate, subject to all the claims to which it would have been liable in the hands of Mary, had she survived the tenant for life, when the remainder would have vested in possession. In truth, the charge was a lien upon the estate, which it would be bound to answer, into whose hands soever it went. In Dawson v. Killett,(l) a case of frequent reference, the principle of the authorities before stated was considered and acknowledged. Mr. Mitchell devised an estate to his wife for life, and if they should have no issue, he gave the estate to the defendant Killet, charged with 100l. to William Ranscomb, and 100l. to Martha Ball, to be paid in six months after the death of his wife. Martha having died before the testator, he, by a codicil, gave 50l. of her (g) 1 Bro. C. C. 123. (h) Ibid. 192. in notis. (k) 1 Bro. C. C. 194. in notis. (i) Ibid. 193. in notis. () 1 Bro. C. C. 119, legacy to Ranscomb, and the remainder of it to a Mr. Beaumont, to be paid at the time Martha would have been entitled to receive the legacy, had she lived. Ranscomb, after surviving the testator, died before the wife, and the wife being dead, Ranscomb's executors claimed the legacies of 150l.; and Lord Thurlow was of opinion that they were entitled to them; and said, "the devise was, after the death of the wife, to Killet, and the testator charged the estate of Killet (meaning the interest of Killet in the estate) with the sums in question, which distributes the estate between Killet and the legatees. Upon the death of the testator, the remainder vested in Killet, and the moment it vested in him, the charges vested in those to whom they were given." His Lordship therefore ordered the 150l. to be raised, with interest to be computed from six months after the death of the wife. A similar question came before his Lordship in Godwin v. Munday, (m) when he pronounced the like decree as in the last case. And in Walker v. Main, (n) the testator devised real property to his wife for life, remainder to the plaintiff, in trust to sell and distribute the proceeds among his children and grand-children, at twenty-one, or marriage, with benefit of survivorship, in the event of any dying before their shares became payable.(o) A child and a grandchild, after attaining twenty-one and marrying, died before the widow; and their shares of the real produce were claimed by their personal representatives. And Sir Thomas Plumer, M. R., decided in their favour. We may here lastly notice the case of Watkins v. Cheek,(p) wherein a legacy charged upon real and personal estate was given to a legatee, to vest immediately upon the death of the testator, but to be paid to the legatee on attaining twenty-one, with interest in the meantime for maintenance. The legatee died under twenty-one. And it was held by Sir John Leach, V. C., that the safest construction was, that the testator meant to express, that the legacy should not sink for the benefit of the devisee of the land, if the legatee should die under twenty-one. CHAPTER XII. Of charging Legacies upon the Real Estate, and of Exoneration. HAVING, in the preceding chapter, marked the distinctions as to the vesting of legacies, when they were made payable out of the personal estate only, or out of the real estate, either alone or in conjunction with the personal property; it is proposed to consider, in the present chapter, FIRST, when legacies will be construed as given solely out of the real estate; SECONDLY, when that estate is to be considered charged only with their payment; and LASTLY, as to the (m) 1 Bro. C. C. 191 and see Bayley v. Bishop, 9 Ves. 6. stated ante, p. 428. S. P. (n) 1 Jac. & Walk. 1. 7. (A) 2 Sim. & Stu. 199. (0) See ante, p. 418. VOL. I. 3 L application of those funds in satisfaction of the legacies. In treating of these matters, the following arrangement is adopted: SECT. I. When Legacies are given solely out of the Real Estate. SECT. II. When Legacies will, and will not, be considered effectual charges upon the Real Estate. And 1. Where the legacies were held to be charges on the real property. 2—When not so considered. 3. Of charging and disposing of the real estate, or its produce, by codicils or paper-writings not attested according to the Statute of Frauds. SECT. III. Of Exoneration. 1.-When the personal estate is first liable to pay debts and legacies. 2-When the real estate will be considered the primary fund for those purposes. 3. As to the admission of parol evidence of the testator's intention. 4. When the personal estate is exonerated from particular debts and legacies, and not from debts and legacies generally. 5.-When the personal estate is not exonerated from paticular debts and legacies— And as to debts not of the testator's own contracting. 6. Where a part of the personal estate is specifically appropriated to pay legacies in exoneration of the remainder. 7. As to the exemption of the personal estate from payment of debts and legacies, where the legatee dies before the testator. 8. With respect to the liability of the real estate to debts and legacies, when the money has been once raised, but misapplied SECT. I. When Legacies are given solely out of the Real Estate. Where, from the terms of the will, it clearly appears to have been the testator's intention, that the fund for the payment of legacies given out of, or made charges upon, the real estate, is that estate only and singly; it alone will be liable to those demands. This may happen in the following instances;-as if legacies be given, and at the same time directed to be paid out of the real property ;(a) or where the real estate is given to A. either in præsenti or (a) Amesbury v. Brown, 1 Ves, sen. 482. in futuro, he paying out of it certain legacies ;(b) or if the land be charged with such payments :(c) in each case, the devised estate will be the only fund out of which those sums are to be paid. The reasons are these; the estate in the one case is expressly encumbered, and in the other it is intended to be divided between the devisee and legatees. In the last instance, the estate is given upon condition that the devisee make the specific payments. He takes the land cum onere, and non constat the estate would have been devised to him, unless the testator had conceived that the legacies would have been discharged out of it. So also, where a legacy is given out of real property, not the absolute estate of the testator, but in the exercise of a power of appointment, that property is the only fund liable to the bequest ;(d) except the appointor manifest in his will an intention (as in Savile v. Blacket before stated,)(e) that, in failure of the specific estate, his own should be subject to the legacy. The real estate will also be the only fund for payment, when it is given to trustees in trust out of,(ƒ) or to apply the rents and profits, or the produce from a sale or mortgage, of the property, in paying particular sums of money; because these sums have not, like debts, any existence independent of the will which bequeaths them as specific parts of the particular fund referred to; and out of which alone. they are given and payable.(g). Instances of this kind have been produced in the third chapter, which treats of specific legacies.(h) A distinction, indeed, must be noticed between the devise of lands to a person charged with, or with a direction to pay, particular sums of money; or to trustees, in trust to raise and pay particular sums; and when the charge or trust is for satisfaction of debts or legacies. generally. In instances of the first kind, we have seen that the real estate is solely liable to the demands; but in instances of the second description, the real will be only answerable in aid of the personal estate, which is the primary and natural fund appointed by law to pay debts and legacies. Suppose, then, a devise of lands to B., charged with, or he paying all debts and legacies ;(i) or a devise to trustees, to pay debts and legacies, remainder to C.; in each instance, the primary fund applicable to those demands is the general personal estate, as will be shown in the third section. But when the real estate is not expressly charged with debts and (b) Hutchins v. Foy, ante, p. 438. Jennings v. Looks, ante, p. 434. Lowther v. Condon, ante, p. 438. Emes v. Hancock, ante, p 439. Hodgson v. Rawson, ante, p. 440. Tunstall v. Brachen, ante, p. 441. Embrey, v. Martin, ante, p. 441. Manning v. Herbert, ante, p. 442. Jeal v. Tichener. ante, p. 442. Pawsey v. Edgar, ante, p. 444. Thompson v. Dow, ante, 444. Morgan v. Gardiner, ante, p. 444. Dawson v. Killet, ante, p. 444. Godwin v. Munday, 1 Bro. C. C. 39 1. Walker v. Main, 1 Jac. & Walk. 1-7. (c) Clarke v. Ross, ante, 443. and sec. 1 Ves. & Bea. 276. and ante, sect. 1. Chap. IX. also, Gittins v. Steel, 1 Swanst. 24. stated infra, and Morgan v. Gardiner, ante, p. 444. (d) Pawlett v. Pawlett, ante, p. 432. Phipps v. Lord Mulgrave, 3 Ves. 613. (e) Chap. III. sect. 3. p. 153. (f) Hartley v. Hurle, 5 Ves. 540. stated infra. () By Sir W. Grant in Brydges v. Phillips, 6 Ves. 571. and by Lord Eldon in Gittins v. Steele, 1 Swanst. 29. Spurway v. Glynn, 9 Ves. 483. stated infra. Hancox v. Abbay. 11 Ves. 179. 185. 186. stated infra. (See the whole of sect. 3. Chap. III. p. 151. and infra, sect. 3. sub-div. 4. (i) Ambl. 38. Mead v. Hide, 2 Vern. 120. Lovel v. Lancaster, ibid. 183. Gower v. Mead, Pre. Ch. 2. Bridgman v. Dove, 3 Atk. 201. Bromhale v. Willbraham, cited Forrest. 204. |