to such other person as they or either of them should appoint. The other paper writing was addressed to Mrs. Johnson, directing her how to apply the proceeds from the sale of his real estate and his personal property, which was in discharging a debt and legacies, giving the residue to herself, The question was, whether those paper writings were so referred to by the will, as that they could be clearly identified as the very letter or paper of instructions mentioned in such will, so as to be embodied in, and made parts of it? And Lord Eldon determined in the negative; observing upon this part of the case, as follows: "The true question is, if these papers were found in the bureau with the will, can I say from the contents of the will, that these two papers are those referred to. Suppose several other papers were found with them, could I say this will would have enabled me to select these two as the only papers referred to. The rule, and my opinion are, that the will has not by its contents sufficiently identified those papers to enable me to say, that they are necessarily incorporated; if not, they are not attested by three witnesses, and it is admitted that this sort of disposition, unless the antecedent paper is incorporated, cannot be brought within the rule as to debts and legacies charged on real estate by an unattested paper." The consequence was, that, for this defect, his Lordship declared that the persons claiming under those paperwritings were not entitled. SECT. III. Of Exoneration. Where there is no doubt as to debts and legacies being effectually charged upon the real estate, it is necessary to ascertain when the personal is to be first applied, and the real estate is an auxiliary fund only; and when the real estate is the primary, and the personal estate the secondary fund. In prosecuting this enquiry, it is proposed to consider, 1. When the personal estate is first applicable to the satisfaction of debts and legacies. The rule is general, that in the absence of contrary intention the personal estate is the first and natural fund for the payment of debts and legacies; and the real estate is only to be resorted to in aid of the former. A court of equity has, in several of the cases after mentioned, attached considerable importance to the circumstance of the devisee of the land being also legatee of the personal estate, considering it to be a strong mark of intention that the testator could not mean to exempt the personal fund to the prejudice of the real, when both of them were given to the same individual. And it seems to be now settled, that whether the real estate be devised to a person, upon condition of his paying debts and legacies, or be charged with them generally, or whether it be given to trustees for those purposes, and the personal estate is disposed of by a general residuary bequest, (p) none of these circumstances will prevent the personal fund being applied, in the first instance, to the satisfaction of those demands. The following cases will establish those remarks: (p) Philips v. Philips, 2 Bo. C. C. 274. see infra sub-div. 2. Fitzgerald v. Field, 1 Russ. 428. In Dolman v. Smith, (g) Sir T. Dolman, after bequeathing legacies, devised his real estates to trustees for the payment of debts, legacies and funeral expenses, with which he charged those estates. He then directed his trustees to receive the rents and profits, until his nephew Thomas, attained twenty-five, and to allow him out of them 301. annually; also 201, a year to Lewis and Dorothy, till they attained the same ages; and, the residue of the rents, with the estates, he limited to Thomas in tail male, remainder over, directing several articles of personalty to go as heir-looms with the estates. He then gave the residue of his goods, chattels, and personal estate, before unbequeathed, to his nephew Thomas, the devisee of the lands, and appointed his trustees executors. The Court decreed, that the personal estate was primarily liable to the debts and legacies. The above decision will agree with modern authorities, if it be referred not to an absence of what was then, and in that case considered requisite, viz. an express clause exempting the personal estate, but to the general rule before stated, and to the inference in support of it, arising from the improbability of the testator intending to exempt the personal estate from debts and legacies, in order that the nephew might, at any time before the age of twenty-five, have the opportunity to receive and spend it, in opposition to the cautious and frugal manner in which the rents and the real estate were devised in trust for his benefit. Besides, as the Court observed, since both funds were to come into the same hands, the testator could not with reason be presumed to entertain so very frugal an intention, as to one fund, and not to extend the same frugal intention to the other. So in Harewood v. Child, (r) the testator devised his real estates to trustees, in trust to raise, as in the will mentioned, sufficient money to pay his debts; and after such payments, and reimbursing themselves, the trustees were to hold the remainder of the premises to the uses previously limited of the manor of C., which were to the use of his daughter in tail, with remainder to his nephew Then he gave all his personal property to his daughter, whom he appointed executrix. It was determined, that the personal estate was first applicable to pay the debts, in exoneration of the real, notwithstanding the express devise of the latter for the purpose. Nearly similar in every respect to the last case is that of Haslewood v. Pope.(s) The trust of the real estate was the same, with the exception of the clause directing the trustees to reimburse themselves; and the beneficial devisee of the estates was the testator's daughter in tail, who was a minor, and to whom he also gave "all his personal estate," appointing her sole executrix. Lord Talbot declared the personal fund to be first applied to answer the debts, observing, that his opinion was chiefly founded on the circumstance of the legatee of the personal estate being also devisee of the surplus real estate in tail; for, (said he) "I cannot think it was the testator's intention to exempt his personal estate from his debts, for no other reason than that his daughter might dispose of Pre. Ch. 456. et vide French v. Chichester, 3 Bro. Parl. Ca. 16. 8vo, ed. it by will under the age of twenty-one, on purpose to leave the real estate, settled on herself in tail, the more incumbered." It is worthy of observation, that in the two last cases, the personal estate was not given by the term residue, and yet that circumstance was not considered as showing any intention in favour of the legatee, to the prejudice of the devisee of the real estate, the legatee of the personal being also appointed sole executrix; a character in which she naturally took the personal estate, with all the burthens attached to it in a regular course of administration.(t) . In Lord Inchiquin v. French,(u) Lord Thomond, after directing his debts to be paid, vested all his real estates in trustees, to sell a sufficient part of them to pay debts and legacies, and to reimburse themselves all charges; and after those payments, to convey the remaining estates to Lord O'Bryan, then a minor, in tail male, with remainders over. The testator then gave a legacy of 20,000l. to A. and directed the produce from the sale ordered of his real estate, to be accounted personal, and gave all the residue of his personal estate, after payment of debts and legacies, to Lord O'Bryan. Lord Hardwicke determined that the personal estate was the primary fund for the payment of the debts and legacies; and he approved of the case of Harwood v. Child before stated. The grounds of his Lordship's opinion were these; 1st, that it was neither expressed, nor was there a plain necessary implication arising from the will, that the testator meant to exempt his personal estate from its natural obligation; 2dly, that by the direction to the trustees to pay debts and legacies out of the real proceeds was to be understood, that they should raise so much money out of that fund as, with the personal estate, would be sufficient to pay debts and legacies; 3dly, that the intention to subject the personalty to those demands was clear, from the direction of the net produce of the lands sold to be considered personal estate, the proper fund to answer those payments; and lastly, because it could not be supposed the testator would have ordered part of his real property to be sold in order to give Lord O'Bryan a greater personal estate, who was, under the same will, to take the real, and at that time a child of very tender years. Lord Hardwicke concluded with an observation, sound in principle, and which, if now followed, would erect some mark as a guide to form opinions upon subjects of this kind. "The construction I have made (said his Lordship) is agreeable to the express words, and no implication can be to over-rule them."(x) In conformity with the preceding authorities, Lord Thurlow determined the case of Samwell v. Wake, (y) in which the testator, after desiring that his debts and legacies should be paid, and to that end charged all his estate with them, directed his trustees to sell his estate, and apply the money in discharging debts and legacies; and, subject to those payments, he devised the lands to his natural son for life, with remainders over; then gave legacies, and the resi (t) See Brummel v. Prothero, infra, and 1 Eden. 45. 2 Scho. & Lefroy, 543. (u) Ambl. 33. 37. (x) A proposition acted upon in the case of Morrow v. Bush, 1 Cox, 185. (y) 1 Bro. C. C. 144. due to the plaintiff. Lord Thurlow declared the personal estate was to be first applied in satisfaction of the debts and legacies. In regard to the exemption of the latter fund from its natural obligation to pay debts and legacies, his Lordship made the following remark: "It is not sufficient to charge the real estate, but a testator must show that it was his purpose the personal should not be applied;" a manifestation of intent not necessary to be in express words, as will afterwards appear, but to be collected from a sound interpretation of the whole will; and it is to be notieed that, in the last case, the devisee of the real estate and the legatee of the personal, were not, as in the preceding cases, the same person; a circumstance therefore which is not, of itself, sufficient to prevent the application of the general rule. The next case before Lord Thurlow was the Duke of Ancaster v. Mayer,(z) a case in which his Lordship reviewed preceding authorities; and it has been since. referred to as the standard by which questions of this kind are to be determined. In that case the testator, after creating a term of ninety-nine years in his real estates in Lincolnshire, devised those estates, subject to it, and in default of his own issue, to Montague Bertie for life, with remainders over. He then declared that his trustees should be possessed of the term, to raise out of the rents and profits, or by mortgage, assignment, or demise of the estates, money sufficient to pay his debts, funeral expenses, and legacies, after which the term was to cease. Towards the conclusion of his will, the testator gave all his household goods, chattels, effects, and personal estate whatsoever, unto Montague Bertie, if living at his (the testator's) death, but if not, he devised the same to the person who should be entitled to the freehold of his real estate under the limitations in his will; provided that if he (the testator) left issue, the limitations of his real estate, and the devise of the residue of his personal estate should be void, &c. and he appointed his trustees executors, directing them to pay his personal charges, and all his debts and legacies when due, and by such methods as they thought proper, empowering them as executors to reimburse themselves their expenses in proving the will, or otherwise in the execution of such will, out of his personal estate, or out of the money to be raised under the term of years. One of the questions was, whether the personal estate was exonerated from the debts? And. Lords Commissioners Ashurst and Hotham were of that opinion, and so decreed. But their opinion not being satisfactory, the cause was re-heard by Lord Thurlow, who reversed the decree after great consideration, and declared that the personal estate was first applicable to pay the debts. His Lordship professed the ground upon which he founded his judgment to be, not any particular criticisms, but simply upon the rule of law; viz. the testator not having declared by express words, nor any other declaration which would tend in law, to preserve the personal estate for any given purpose whatsoever. The creation of the term could not repel the general rule, for that had no greater effect than subjecting the estate to the payment of debts; it afforded (z) 1 Bro. C. C. 454, and see Lord Eldon's comments, 1 Meriv. 227. and M'Cleland v. Shaw. 2 Scho & Lefroy, 538. stated infra. no stronger inference of an intent to exempt the personal estate, than a devise in trust to sell, &c. for the discharge of debts, which occurred in preceding cases. Similar to those cases, the devisees of the real estate and the legatees of the personal were in this instance the same, circumstances which, as we have seen, had great importance attached to them. But the present case is much stronger against the exemption of the personal fund than the authorities before stated. The trustees of the term were appointed executors, and they, in the latter character, were directed not only to pay all debts, legacies, and funeral charges, by the methods they though proper (duties which as trustees they had been previously ordered to perform by means of the term of years,) but also the expenses of probate, and their own charges as executors; the testator thus blending the two characters and estates, and giving an option to the executor-trustees to pay all those demands out of the personal fund. Hence, instead of any inference of an intention appearing to exempt the personal fund, the testator pretty clearly expressed his meaning, that it should be primarily liable, and then, according to Lord Hardwicke, in the case of Lord Inchiquin v. French, before stated, (a) against expression, no implication could be made. Upon the whole, Lord Thurlow's decree seems to be quite in harmony with the principles of the preceding cases. The next case differs from former authorities, in the particular that there was no disposition of the personal estate, except by the appointment of an executor; as to which Lord Rosslyn said, "no case had decided that the mere nomination of an executor, though under circumstances which would give him beneficially the personal estate, should have the same effect as a distinct specific gift of it to an individual." The case alluded to is Gray v. Minnethorpe, (b) in which Mr. Simpkin devised part of his real estate to trustees to sell, and to pay, out of the proceeds, all his debts and funeral expenses, and to invest what remained on securities, and pay the interest to his brother for life, and to divide the principal, after his brother's death," among his nephews and nieces. The testator gave another estate to his brother in tail, and appointed him sole executor, and Lord Rosslyn determined, that there was nothing in the will to exempt the personal estate from the debts. In M'Cleland v. Shaw, (c) the executors were trustees of the personal residue for the testator's next of kin, and although Lord Redesdale decided the case upon a review of all the circumstances of it, yet he (as Lord Rosslyn in the last case) relied upon there being no specific disposition of the residue. Mrs. Burgess being possessed of personal property of inconsiderable amount, and of real estate of some value, first devised all her right, title, and interest in some of the latter to trustees, for the uses after mentioned. She then directed the trustees to sell those lands, and to apply the proceeds in the following manner: First, she desired her funeral expenses and debts to be paid out of the purchase money; then particular sums to certain creditors of her late husband, (a) Ante, p. 465. (b) 3 Ves. 103. (c) 2 Scho, & Lefroy, 538. 543, vid, infra, Chap. XXIV. sec, 2. div. 3. |